[Federal Register Volume 70, Number 237 (Monday, December 12, 2005)]
[Proposed Rules]
[Pages 73426-73429]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-23928]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 051110296-5296-01; I.D. 102405A]
RIN 0648-AU02


Protecting Spinner Dolphins in the Main Hawaiian Islands From 
Human Activities that Cause ``Take,'' as Defined in the Marine Mammal 
Protection Act and Its Implementing Regulations, or To Otherwise 
Adversely Affect the Dolphins

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Advance notice of proposed rulemaking.

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SUMMARY: NMFS is considering whether to propose regulations to protect 
wild spinner dolphins (Stenella longirostris) in the main Hawaiian 
Islands from ``take,'' as defined in the Marine Mammal Protection Act 
(MMPA) and its implementing regulations, or to otherwise adversely 
affect the dolphins. The scope of this advance notice of proposed 
rulemaking (ANPR) encompasses the activities of any person or 
conveyance that may result in the unauthorized taking of spinner 
dolphins and/or that may diminish the value to the dolphins of habitat 
routinely used by them for resting and/or that may cause detrimental 
individual-level and population-level impacts. The proposed regulation 
would apply only to the main Hawaiian Islands and only to spinner 
dolphins. NMFS requests comments on whether--and if so, what type of-- 
conservation measures, regulations, and, if necessary, other measures 
would be appropriate to protect spinner dolphins in the main Hawaiian 
Islands from the effects of these activities.

DATES: Comments must be received at the appropriate address (see 
ADDRESSES) no later than January 11, 2006.

ADDRESSES: You may submit comments by any of the following methods:
     E-mail: [email protected]. Include in the subject 
line the following document identifier: 0648-AU02-NOA.
     Federal e-rulemaking Portal: http://www.regulations.gov.
     Mail: Marine Mammal Branch Chief, Protected Resources 
Division, Pacific Islands Regional Office, National Marine Fisheries 
Service, 1601 Kapiolani Boulevard, Suite 1110, Honolulu, HI 96814.

FOR FURTHER INFORMATION CONTACT: Chris Yates or Jennifer Sepez, Pacific 
Islands Regional Office, 808-944-2105; or Trevor Spradlin, Office of 
Protected Resources, 301-713-2322.

SUPPLEMENTARY INFORMATION:

Background

    Viewing wild marine mammals in Hawaii is a popular recreational 
activity for both tourists and residents alike. In the past, most 
recreational 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, in recent years, 
recreational activities have increasingly focused on viewing small 
cetaceans, with a particular emphasis on spinner dolphins (Stenella 
longirostris), which are routinely found close to shore in shallow 
coves and bays and other areas throughout the main Hawaiian Islands. 
NMFS is concerned that some of these activities cause unauthorized 
taking of dolphins, diminish the value to the dolphins of habitat 
routinely used by them for resting, and cause detrimental individual-
level and population-level impacts.
    The biology and behavior of Hawaiian spinner dolphins has been well 
documented in the scientific literature. Hawaiian spinner dolphins are 
identified as a race of Pacific spinner dolphins found in and around 
the Hawaiian Islands, including both the main Islands of Hawaii and the 
Northwestern Hawaiian Islands (Norris et al. 1994, page 17). Hawaiian 
spinner dolphins routinely utilize shallow coves and bays and other 
areas close to shore during the day to rest, care for their young and 
avoid predators before traveling to deeper water at night to hunt for 
food (W[uuml]rsig et al. 1994, Norris 1994). As the dolphins begin or 
end their resting period, they engage in aerial spinning and leaping 
behaviors that are noticeable from shore (W[uuml]rsig et al. 1994). 
However, when they are in a period of deep rest, their behavior 
consists of synchronous dives and extended periods swimming in quiet 
formation along the shallow bottom (see: Norris and Dohl 1980, Norris 
et al. 1985, Wells and Norris 1994, W[uuml]rsig et al. 1994).
    Scientific research studies have documented human disturbance of 
Hawaiian spinner dolphins during their resting periods along the west 
coast of the Big Island of Hawaii, most notably in and around 
Kealakekua Bay. Norris and Dohl (1980) noted that ``cruise boats'' 
would seek out and run through groups of spinner dolphins during an 
initial study of the dolphins in 1970, and in follow up research, 
Norris et al. (1985) found that spinner dolphins were particularly 
sensitive to disturbance during the early stage of their entry into the 
bay. Forest (2001) compared sightings records of spinner dolphins in 
Kealakekua Bay from 1979-1980 and 1993-1994, and found that the 
dolphins were utilizing the bay and engaging in aerial behaviors less 
frequently than before, and suggested increasing human disturbance as a 
cause. Courbis (2004) reported high levels of vessel and swimmer 
traffic in Kealakekua Bay and neighboring Honaunau Bay and Kauhako Bay, 
and found that spinner dolphins exhibited decreased aerial activity 
during their entry and exit into Kealakekua Bay when compared to 
previous studies, as well as increased aerial activity during mid-day 
when dolphins typically rest. Spinner dolphins in Kealakekua Bay also 
appeared to have shifted their preferred resting area in response to 
vessel and swimmer presence. In Kauhako Bay, dolphins were documented 
avoiding swimmers and leaving the bay in

[[Page 73427]]

response to being followed, while in Honaunau Bay, dolphins were 
documented to spend more time at the mouth of the bay or in deep water 
at the center of the bay when swimmers were present. [Ouml]stman-Lind 
et al. (2004) found that human disturbance was highest in mid-morning 
when spinner dolphins begin their rest period, and that secondary 
resting areas with less vessel traffic were utilized more than had been 
previously observed, and suggested the dolphins have been displaced 
from their primary resting areas. In addition, Ross (2001) found that 
Hawaiian spinner dolphins around Midway Atoll in the Northwest Hawaiian 
Islands exhibited short-term behavioral changes in response to vessels 
at distances of 300 meters and 100 meters.
    NMFS is concerned that displacement from primary resting areas has 
the potential for adverse impacts on the dolphins for a number of 
reasons, including that these secondary resting areas may not provide 
for the same quality of rest and protection that primary areas do and 
that the activities that displaced the dolphins from primary areas are 
likely to follow them. NMFS scientists are concerned about the 
potential for individual-level and population-level effects because of 
anthropogenic activities. NMFS has received an increasing number of 
complaints from constituents alleging that spinner dolphins in the main 
Hawaiian Islands are routinely being disturbed by people attempting to 
closely approach and interact with the dolphins by vessel (motor 
powered or kayak) or in the water (``swim-with-wild-dolphin'' 
activities). Concerns have been expressed by officials from the Hawaii 
Department of Land and Natural Resources and the U.S. Marine Mammal 
Commission, as well as representatives of the Native Hawaiian 
community, scientific researchers, wildlife conservation organizations, 
public display organizations, and some commercial tour operators.
    Additionally, there are growing public safety concerns associated 
with human-dolphin interactions. Although there are no known reports of 
Hawaiian spinner dolphins injuring humans, people have been seriously 
injured while trying to interact with various species of marine mammals 
in the wild, including species of dolphins (Webb 1978, Shane et al. 
1993, NMFS 1994, Wilson 1994, Orams et al. 1996, Seideman 1997, 
Christie 1998, Santos 1997, Samuels and Bejder 1998, Samuels and Bejder 
2004, Samuels et al. 2000). In addition, researchers have documented 
Hawaiian spinner dolphins behaving aggressively towards people in the 
water by charging and making threat displays (Norris et al. 1985, 
Johnson and Norris 1994). There is also a potential risk of shark 
attack, since sharks prey upon spinner dolphins and often are seen with 
them along the coast (Johnson and Norris 1994, Norris 1994). In June 
2003, an adult male swimmer was attacked by a shark while trying to 
swim with spinner dolphins off the coast of Oahu. The man suffered 
injuries to his leg, which required medical attention (Hoover and 
Espanol 2003).
    NMFS encourages members of the public to view and enjoy spinner 
dolphins in the main Hawaiian Islands in ways that are consistent with 
the provisions of the MMPA, and supports responsible wildlife viewing 
as articulated in agency guidelines (see Web citations below). NMFS is 
concerned that some activities occurring in Hawaii are not in 
accordance with these guidelines, and cause unauthorized taking of 
spinner dolphins, diminish the value to the dolphins of habitat 
routinely used by them for resting, or cause detrimental individual-
level and population-level impacts to these dolphins.

Current MMPA Prohibitions and NMFS Guidelines and Regulations

    The Marine Mammal Protection Act, 16 U.S.C. 1361 et seq., generally 
prohibits the ``take'' of marine mammals. Section 3(13) of the MMPA 
defines the term ``take'' as ``to harass, hunt, capture, or kill, or 
attempt to harass, hunt, capture, or kill any marine mammal.'' Except 
with respect to military readiness activities and certain scientific 
research activities, the MMPA defines the term ``harassment'' as ``any 
act of pursuit, torment, or annoyance which--(i) has the potential to 
injure a marine mammal or marine mammal stock in the wild, [Level A 
harassment]; or (ii) has the potential to disturb a marine mammal or 
marine mammal stock in the wild by causing disruption of behavioral 
patterns, including, but not limited to, migration, breathing, nursing, 
breeding, feeding, or sheltering [Level B harassment].''
    In addition, NMFS regulations implementing the MMPA further 
describe 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). The MMPA provides limited exceptions to the prohibition 
on ``take'' for activities such as scientific research, public display, 
and incidental take in commercial fisheries. Such activities require a 
permit or authorization, which may be issued only after a thorough 
agency review.
    Although Hawaiian spinner dolphins are not a listed species under 
the Endangered Species Act (ESA), there are specific regulations for 
some ESA-listed marine mammals which address interactions with humans 
in the wild. These regulations prohibit approaches within 3 nautical 
miles (5.5 km) of particular Steller sea lion rookeries in the Aleutian 
Islands and Gulf of Alaska (50 CFR 223.202), approaches closer than 100 
yards (91.4 m) to humpback whales in Hawaii, approaches closer than 100 
yards (91.4 m) to humpback whales in Alaska, and approaches closer than 
500 yards (460 m) to right whales in the North Atlantic (50 CFR 
224.103). Documentation for these latter two regulations (66 FR 29502, 
May 31, 2001, and 62 FR 6729, February 13, 1997) cites rulemaking 
authority under both the ESA and the MMPA.
    For both ESA-listed species and for MMPA-protected species, 
wildlife viewing must be conducted in a manner that does not cause 
``take.'' This is consistent with the philosophy of responsible 
wildlife viewing advocated by many federal agencies to unobtrusively 
observe the natural behavior of wild animals in their habitats without 
causing disturbance (see http://www.watchablewildlife.org/ and http://www.watchablewildlife.org/publications/marine_wildlife_viewing_guidelines.htm).
    Each of the six NMFS Regions has developed recommended viewing 
guidelines to educate the general public on how to responsibly view 
marine mammals in the wild and avoid causing a ``take.'' These 
guidelines are available on line at: http://www.nmfs.noaa.gov/prot_res/MMWatch/MMViewing.html. The guidelines developed by the NMFS 
Pacific Islands Regional Office for marine mammals in Hawaii are also 
available at: http://www.nmfs.noaa.gov/prot_res/MMWatch/hawaii.htm. 
The Regional Office viewing guidelines for Hawaii recommend that people 
view wild dolphins from a safe distance of at least 50 yards (45 m) and 
refrain from 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 and public service

[[Page 73428]]

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).
    However, despite the regulations, guidelines and outreach efforts, 
interactions through swim-with-dolphins programs continue to occur and 
are increasing in Hawaii. Advertisements on the Internet and in local 
media in Hawaii promote activities that contradict the NMFS guidelines. 
NMFS has received letters from the Marine Mammal Commission (MMC), 
members of the scientific research community, environmental groups, the 
public display community, and members of the general public expressing 
the view that swimming with and other types of interactions with wild 
marine mammals have the potential to harass and/or disturb the animals 
by causing injury or disruption of normal behavior patterns. NMFS has 
also received inquiries from members of the public and commercial tour 
operators requesting clarification on NMFS' policy on these matters.
    The MMC sponsored a literature review by Samuels et al. (2000) to 
compile information regarding human interactions with wild dolphins. 
Upon review of the report, the MMC stated:

    The information and analyses in the report provide compelling 
evidence that any efforts to interact intentionally with dolphins in 
the wild are likely to result in at least Level B harassment and, in 
some cases, could result in the death or injury of both people and 
marine mammals.

The MMC subsequently recommended that NMFS ``promulgate regulations 
specifying that any activity intended to enable in-water interactions 
between humans and dolphins in the wild constitutes a taking and is 
prohibited'' (Letter from MMC to NMFS dated May 23, 2000).
    In 2002, NMFS published an ANPR requesting comments from the public 
on what types of regulations and other measures would be appropriate to 
prevent harassment of marine mammals in the wild caused by human 
activities directed at the animals (67 FR 4379, January 30, 2002). The 
2002 ANPR was national in scope and covered all species of marine 
mammals under NMFS' jurisdiction (whales, dolphins, porpoises, seals 
and sea lions), and requested comments on ways to address concerns 
about the public and commercial operators closely approaching, swimming 
with, touching or otherwise interacting with marine mammals in the 
wild. Several potential options were proposed for consideration and 
comment, including: (1) Codifying the current NMFS Regional marine 
mammal viewing guidelines into regulations; (2) codifying the 
guidelines into regulations with additional improvements; (3) 
establishing minimum approach rules similar to the ones under the ESA 
regulations for humpback whales in Hawaii and Alaska and North Atlantic 
right whales; and (4) restricting activities of concern similar to the 
MMPA regulation prohibiting the public from feeding or attempting to 
feed wild marine mammals. The 2002 ANPR specifically mentioned the 
concerns about Hawaiian spinner dolphins and increasing human 
interactions. Over 500 comments were received on the 2002 ANPR 
regarding human interactions with wild marine mammals in United States 
waters and along the nation's coastlines. A portion of the comments 
specifically addressed Hawaii concerns and recommended a wide spectrum 
of measures from no action to restricting swim with activities through 
regulations or time-area closures.

Request for Comments

    NMFS is requesting comments on whether --and if so, what type of--
conservation measures, regulations, and, if necessary, other measures 
would be appropriate to protect spinner dolphins in the main Hawaiian 
Islands from human activities that result in the unauthorized taking of 
spinner dolphins and/or that may diminish the value to the dolphins of 
habitat routinely used by them for resting and/or that may cause 
detrimental individual-level and population-level impacts. If a rule 
were proposed, the agency could further delineate the definition of 
``take'' in the Code of Federal Regulations for situations involving 
Hawaiian spinner dolphins, focusing on the take of individual dolphins. 
The agency could also design regulations to address possible adverse 
effects at the population level, where repeated intrusions into resting 
areas cumulatively have the potential to disrupt the behavioral 
patterns within the population of dolphins and/or have the potential to 
injure the stock as a whole through displacement of animals from their 
preferred habitat. The agency could also act to protect essential 
habitats, including mating grounds and areas of similar significance to 
the dolphins.
    NMFS offers several possible options for consideration and comment:
    Codify the current NMFS Pacific Islands Regional Office's marine 
mammal viewing guidelines--Codifying the guidelines as regulations 
would make them requirements rather than recommendations, and would 
provide for enforcement of these provisions and penalties for 
violations.
    Codify the current NMFS Pacific Islands Regional Office's marine 
mammal viewing guidelines with improvements--The current guidelines 
could be revised to more clearly address specific activities of 
concern, such as those discussed below, and then codified as 
enforceable regulations.
    Establish minimum approach rule--Similar to the minimum approach 
rules for humpback whales in Hawaii and Alaska, and right whales in the 
North Atlantic (50 CFR 224.103; 66 FR 29502, May 31, 2001), a limit 
could be established by regulation to accommodate a reasonable level of 
dolphin viewing opportunities while minimizing the potential 
detrimental impacts from humans. If establishing a minimum approach 
rule is appropriate, then NMFS would have to consider whether the 
current guideline of 50 yards is appropriate for this regulation. NMFS 
would consider exceptions for situations in which marine mammals 
approach vessels or humans as well as other situations in which 
approach is not reasonably avoidable.
    Restrict individual activities of concern--Similar to the 
prohibition on feeding wild marine mammals (50 CFR 216.3), a regulation 
further delineating the definition of ``take'' for the case of Hawaiian 
spinner dolphins could clarify which specific activities are 
prohibited. Such activities could include actions engaged in by 
individuals, e.g., swimming with, touching (either directly or with an 
object), or otherwise acting on or with a Hawaiian spinner dolphin in 
the wild. It could also include operating a vessel or providing other 
platforms from which such interactions are conducted or supported.
    Restrict vessel activities of concern--Activities of concern 
engaged in by vessels could also be prohibited through a regulation 
further delineating the definition of ``take'' for the case of Hawaiian 
spinner dolphins. These activities of concern could include actions 
engaged in by vessels, e.g., the use of vessels to herd dolphins, 
surround dolphins, or otherwise prevent a reasonable means of escape, 
to ``leapfrog'' dolphins by positioning in their predictable paths, 
separate calves from attending adults, approach at or above specified 
speeds, or to ``run through'' a group of dolphins in order to elicit 
bow-wake riding.

[[Page 73429]]

    Establish time-area closures in resting bays--Similar to the 
prohibitions used to protect fish stocks or habitat, a regulation 
restricting human access to specific areas could be established. These 
restrictions could be for full-time, or limited to certain times of the 
day when dolphins have the most potential to be present. They could: 
restrict all human entry to the area; restrict only specified types of 
activities; restrict human access to an entire area or a particular 
zone within an area; or a closure could be any combination of the above 
parameters.
    NMFS also recognizes that the most appropriate regulations may be 
some combination of the above measures, or that additional 
possibilities may exist.
    The geographic scope of these regulations, if proposed, would be 
the near shore habitats off the main Hawaiian Islands, including the 
Big Island of Hawaii, Maui, Kohoolawe, Lanai, Molokai, Oahu, Kauai, and 
Niihau, and their nearby land or land-like masses (e.g., Molokini, 
Kaohiakipu, etc.). These are the locations where activities of concern 
are concentrated. The Northwestern Hawaiian Islands (NWHI) do not 
currently have a significant level of activities of concern, and NMFS 
feels the remoteness of these islands makes it unlikely that they will 
develop at significant levels in the future. In addition, a marine 
sanctuary is contemplated which would encompass the NWHI. NMFS requests 
comments on the geographic scope of this ANPR, including whether the 
agency should be considering a larger or smaller overall geographic 
scope to protect Hawaiian spinner dolphins.
    NMFS invites comment on the above options and other possible 
measures that will help the agency decide what type of regulations, if 
any, would be most appropriate to consider for protecting spinner 
dolphins in the main Hawaiian Islands from human activities that cause 
unauthorized taking of spinner dolphins, diminish the value to the 
dolphins of habitat routinely used by them for resting, or cause 
detrimental individual-level and population-level impacts to these 
dolphins.

Classification

    This advance notice of proposed rulemaking was determined to be 
significant for purposes of E.O. 12866.

    Dated: December 6, 2005.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

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[FR Doc. 05-23928 Filed 12-9-05; 8:45 am]
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