[Federal Register Volume 71, Number 190 (Monday, October 2, 2006)]
[Notices]
[Pages 57923-57926]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-16202]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[I.D. 090706D]


Protection of Marine Mammals; Notice of Intent to Prepare an 
Environmental Impact Statement

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

ACTION: Notice of intent to prepare and environmental impact statement 
(EIS); notice of public scoping meetings.

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SUMMARY: The National Marine Fisheries Service (NMFS) announces its 
intent to prepare an EIS to assess the potential impacts on the human 
environment resulting from proposed 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; and announces public scoping meetings.

DATES: Four public scoping meetings are scheduled to obtain comments on 
the scope of issues to be addressed in the EIS. See SUPPLEMENTARY 
INFORMATION for specific times and locations. In addition to obtaining 
comments in the public scoping meetings, NMFS will also accept written 
and electronic comments. Comments must be received no later than 5 p.m. 
h.s.t. on November 24, 2006.

ADDRESSES: Written comments on the scope of the EIS should be submitted 
to Chris E. Yates, Assistant Regional Administrator for Protected 
Resources, Pacific Islands Regional Office, NMFS, 1601 Kapiolani 
Boulevard, Suite 1110, Honolulu, HI 96814. Written comments may also be 
submitted by e-mail to [email protected].

FOR FURTHER INFORMATION CONTACT: Lisa Van Atta, NMFS, Pacific Islands 
Region; telephone: (808) 944-2257; fax: (808)

[[Page 57924]]

944-2142; e-mail: [email protected]. For information regarding 
the EIS process, contact Jayne LeFors, NMFS, Pacific Islands Region; 
telephone: (808) 944-2277; fax: (808) 944-2142; e-mail: 
[email protected].

SUPPLEMENTARY INFORMATION:

Public Scoping Meetings - Specific Times and Locations

    The Honolulu, Oahu, HI scoping meeting: October 17, 2006, 6 p.m. - 
9 p.m. The meeting location is the McCoy Pavilion, Ala Moana Regional 
Park, 1201 Ala Moana Boulevard, Honolulu, HI, 96814, telephone: (808) 
823-1636.
    The Kapa'a, Kauai, HI scoping meeting: October 19, 2006, 6 p.m. - 9 
p.m. The meeting location is the Aloha Beach Resort Kauai, Pi'ikoi 
Room, 3-5920 Kuhio Highway, Kapa'a, HI, 96746, telephone: (808) 823-
1636.
    The Kihei, Maui, HI scoping meeting: October 25, 2006, 6 p.m. - 9 
p.m. The meeting location is the Hawaiian Islands Humpback Whale 
National Marine Sanctuary, Headquarters office, 726 S. Kihei Road, 
Kihei, HI, 96753, telephone: (808) 879-2818 or (800) 831-4888.
    The Kailua-Kona, HI scoping meeting: October 26, 2006, 6 p.m. - 9 
p.m. The meeting location is King Kamehameha's Kona Beach Hotel, 75-
5660 Palani Road, Kailua-Kona, HI, 96740, telephone: (808) 329-2911.
    These meetings are accessible to people with disabilities. Requests 
for sign language interpretation or other auxiliary aids should be 
directed to Jayne LeFors, (808) 944-2277 or fax (808) 944-2142 at least 
5 days before the scheduled meeting date.

Background

    Viewing wild marine mammals in Hawaii is a popular recreational 
activity for both tourists and residents alike. In the past, most 
efforts focused on viewing 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, increasing efforts have 
focused on viewing small cetaceans, with a particular emphasis on 
Hawaiian spinner dolphins (Stenella longirostris), which can be 
routinely found close to shore in shallow coves and bays throughout the 
main Hawaiian Islands. NMFS has received an increasing number of 
complaints from constituents charging that spinner dolphins are being 
routinely 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 (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.
    NMFS encourages members of the public to view and enjoy Hawaiian 
spinner dolphins, and supports responsible wildlife viewing as 
articulated in agency guidelines (see web citation below). However, 
activities currently conducted by individuals and by commercial ``swim-
with'' programs frequently do not operate in accordance with these 
guidelines. NMFS is concerned that activities occurring in Hawaii have 
the potential to cause detrimental individual and population-level 
impacts to these dolphins.
    Hawaiian spinner dolphins routinely utilize shallow coves and bays 
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. 
As the dolphins begin or end their resting period in a bay, they engage 
in aerial spinning and leaping behaviors that are noticeable from 
shore. 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 (Norris and Dohl 1980; Norris et 
al., 1985; Wells and Norris 1994; Wursig et al. 1994).
    Scientific research studies have documented the effects of human 
disturbance on dolphins. In a recently published study conducted at 
Oahu's Makua Beach, Danil et al. (2005) found that Hawaiian spinner 
dolphins departed the resting bay earlier and spent shorter diving 
periods, which was indicative of delayed or compressed resting 
behavior, while swimmers were present in the bay.
    Additionally, a study in western Australia documented a significant 
decline in wild bottlenose dolphin (Tursiops sp.) abundance resulting 
from long-term exposure to dolphin tour operations (Bejder et al., 
2006; Bejder et al., In press). While there are some major differences 
between bottlenose dolphins and spinner dolphins, their responses to 
exposure to tour operations would likely be similar. The authors 
suggest that similar declines would be devastating for small, closed, 
resident, or endangered cetacean populations like spinner dolphins.

Current MMPA Prohibitions and NMFS Guidelines and Regulations

    The Marine Mammal Protection Act of 1972, 16 U.S.C. 1361 et seq. 
(MMPA) 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.'' 
Section 3(18)(A) of 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; 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.''
    In addition, NMFS regulations implementing the MMPA have amended 
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).
    Although Hawaiian spinner dolphins are not a listed species under 
the Endangered Species Act (ESA), NMFS has implemented specific 
regulations for some ESA-listed marine mammals which address 
interactions with humans in the wild. These regulations prohibit 
approaches closer than 100 yards (91.4 m) to humpback whales in Hawaii 
and Alaska, and approaches closer than 500 yards (460 m) to right 
whales in the North Atlantic (50 CFR 224.103), as well as approaches 
within 3 nautical miles (5.5 km) of particular Steller sea lion 
(Eumetopias jubatus) rookeries in the Aleutian Islands and Gulf of 
Alaska (50 CFR 223.202). However, specific approach distance 
regulations have not yet been implemented under the MMPA for other 
species of marine mammals.
    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 after a thorough agency 
review. In some cases, the activities requiring a permit and receiving 
agency review (e.g., photo identification research) are significantly 
less intrusive than certain known tourist activities (e.g., swimming 
with wild dolphins). However, the MMPA does not provide an exception to 
the ``take'' prohibition for commercial or recreational wildlife

[[Page 57925]]

viewing activities, so they are not eligible for permits or 
authorizations. Instead, wildlife viewing should be conducted in a 
manner that does not cause ``take,'' which is consistent with the 
general philosophy of responsible wildlife viewing to unobtrusively 
observe the natural behavior of wild animals in their habitats without 
causing disturbance.
    Each of the five 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'' by 
``harassment.'' The guidelines developed by the NMFS Pacific Islands 
Regional Office for marine wildlife in Hawaii are available at: http://www.nmfs.noaa.gov/pr/education/hawaii/.
    The guidelines for Hawaii recommend that people view wild dolphins 
from a safe distance of at least 50 yards (45 m) and to 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 
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).
    However, despite the regulations, guidelines, and outreach efforts, 
extensive interactions with wild spinner dolphins continue to occur in 
Hawaii. Advertisements on the internet and in local media in Hawaii 
promote activities that clearly contradict the NMFS guidelines and 
appear to depict harassment of the animals. NMFS has also received 
inquiries from members of the public and commercial tour operators 
requesting clarification on NMFS' policy and the MMPA restrictions on 
closely approaching, swimming with, or interacting with wild cetaceans.
    In response to the concerns expressed about spinner dolphin 
disturbance, NMFS published an Advance Notice of Proposed Rulemaking 
(ANPR) on December 12, 2005 (70 FR 73426) to alert the public that it 
would be considering whether to implement additional regulations or 
other conservation measures as appropriate to protect wild spinner 
dolphins in the main Hawaiian Islands from 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). The 
ANPR with the complete background information can be found at http://swr.nmfs.noaa.gov/pir/index.htm along with the scientific literature 
cited.
    Public comment was solicited on a range of alternatives being 
considered to address the issue. A total of 191 comments were received 
from a wide range of stakeholders and recommended a variety of actions 
for NMFS to consider, ranging from no regulations to permanent closure 
of areas the dolphins use for resting and shelter. Based upon the 
comments received during this process, the original alternatives were 
further refined to provide a basis for the alternatives to be analyzed 
in the EIS.
     The EIS will consider the proposed action and several alternatives 
to protect wild spinner dolphins in the main Hawaiian Islands from 
human activities that may result in their unauthorized taking, or that 
may cause detrimental individual or population-level impacts by 
diminishing the value of habitat they routinely use for resting. NMFS 
is seeking public comment on both the proposed action and the 
preliminary alternatives during the public scoping period, and 
encourages the public to submit information on these and other 
potential alternatives for consideration.

Proposed Action

    NMFS has identified the proposed action as instituting partial 
(time-area based) closures for certain specified spinner dolphin 
resting habitat (or a subset thereof) in the main Hawaiian Islands. 
Under the proposed action, NMFS would identify the primary areas 
utilized by spinner dolphins for resting habitat on each of the main 
Hawaiian Islands, and would institute closures of these areas during 
certain time periods. Closure types to be considered could include 
entire bays, but only during peak spinner dolphin resting hours (e.g., 
between 9 a.m. and 2 p.m.), or closures only within specified zones 
within spinner dolphin resting habitat (e.g., as demarcated by buoys). 
Such closures would attempt to provide optimal protection for spinner 
dolphins and their resting habitat, while minimizing the impact on 
ocean users. Exemptions within certain bays for harbors transit 
(ingress and egress of vessels), traditional cultural practices, 
fishing activities, emergency situations, and other activities would be 
considered.

Alternatives

    NMFS has also identified four additional alternatives to the 
proposed action: (1) maintaining the status quo (the No Action 
alternative); (2) establishing a minimum distance limit inside which 
approach of spinner dolphins would be unlawful; (3) regulating certain 
specified human behavior within NMFS-identified spinner dolphin resting 
habitat; and (4) instituting a complete closure of NMFS-identified 
spinner dolphin resting habitat (or a subset thereof).

Alternative 1

    Under the No Action alternative, which is required by CEQ 
regulations (40 CFR 1502.14), NMFS would take no additional regulatory 
action to protect spinner dolphins from human activities in the main 
Hawaiian Islands, thereby perpetuating the status quo. The current 
``take'' provisions of the MMPA and its implementing regulations would 
be the mechanisms through which unlawful interactions with spinner 
dolphins would be addressed. Under the No Action alternative, the 
current (and increasing) frequency and intensity of human interactions 
with spinner dolphins would likely continue.

Alternative 2

    Alternative 2 would establish a minimum distance limit, similar to 
minimum approach rules for humpback whales in Hawaii (50 CFR 
224.103(a)) and Alaska (50 CFR 224.103(b)), and for right whales in the 
North Atlantic (50 CFR 224.103(c), within which approaching spinner 
dolphins in the main Hawaiian Islands, by any means, would be unlawful. 
Such a limit would attempt to accommodate a reasonable level of dolphin 
viewing opportunities while minimizing potential detrimental impacts 
from human interactions. NMFS may consider the current Pacific Islands 
Regional Responsible Marine Wildlife Viewing guideline of 50 yards (45 
m). NMFS may also consider exemptions for situations in which approach 
within the established limit is not reasonably avoidable (e.g., when 
human safety is at risk).

Alternative 3

    Alternative 3 would regulate human behavior while in NMFS-
identified spinner dolphin resting areas in the main Hawaiian Islands. 
This alternative would reiterate all activities currently prohibited by 
the MMPA and its implementing regulations, but would also prohibit 
other specified human activities, such as swimming with spinner 
dolphins. This alternative would also prohibit specified watercraft

[[Page 57926]]

(motor vessels, personal thrillcraft, kayaks, etc.) activities, such as 
placing a vessel in the predictable path of spinner dolphins in order 
to facilitate an encounter; as well as regulate watercraft travel 
(e.g., speed restrictions) within spinner dolphin resting areas.

Alternative 4

    Alternative 4 would adopt a very restrictive approach by 
identifying all known spinner dolphin resting areas in the main 
Hawaiian Islands and institute a complete closure in these areas to all 
commercial and non-commercial activities. Exemptions within certain 
bays for harbors transit (ingress and egress of vessels) and emergency 
situations would be considered.

Public Involvement and the Scoping Process

    NMFS' intent is to afford an opportunity for the public to 
participate in this process, including interested citizens, commercial 
operators, and environmental organizations; any affected low-income or 
minority populations; affected local state, and Federal agencies; and 
any other agencies with jurisdiction or special expertise concerning 
environmental impacts to be addressed in the EIS.
    NMFS will hold public scoping meetings and accept oral and written 
comments on the scope of issues that should be addressed in the EIS; to 
determine the issues of concern with respect to practical 
considerations involved in applying the proposed regulations; to 
identify relevant environmental and socioeconomic issues to be 
addressed in the analysis; and to determine whether NMFS is addressing 
the appropriate range of alternatives. The public, as well as Federal, 
state, and local agencies, are encouraged to participate in this 
scoping process. The dates and locations of these meetings appear in 
this Federal Register notice (See SUPPLEMENTARY INFORMATION). The 
agency also invites the public to submit comments by e-mail or regular 
mail (See ADDRESSES).

    Authority: Authority: 16 U.S.C. 1361 et seq.

References

    Bejder, L., Samuels, A., Whitehead, H. and Gales, N. 2006. 
Interpreting short-term behavioural responses to disturbance within a 
longitudinal perspective.
    Animal Behaviour. Doi: 10.1016/j.anbehav.2006.04.003
    Bejder, L., A. Samuels, H. Whitehead, N. Gales, J. Mann, R. Connor, 
M. Heithaus, J. Watson-Capps, C. Flaherty, and M. Krutzen. In press. 
Decline in relative abundance of bottlenose dolphins exposed to long-
term disturbance. Conservation Biology, in press.
    Clark, J.L. 2006. Hawai'i Wildlife Viewing Guide. Adventure 
Publications, Cambridge, Minnesota. 179 pp.
    Danil, K., D. Maldini, and K. Marten. 2005. Patterns of use of 
Maku'a Beach, O'ahu, Hawai'i, by spinner dolphins (Stenella 
longirostris) and potential effects of swimmers on their behavior. 
Aquatic Mammals, 31(4): 403-412.
    Duda, Mark D. 1995. Watching Wildlife: Tips, Gear and Great Places 
for Enjoying America's Wild Creatures. Falcon Press Publishing Co., 
Helena and Billlings, MT. 117 pp.
    Marine Mammal Protection Act of 1972. 16 U.S.C. et seq. and 50 CFR 
part 216.
    Norris, K.S. and T.P. Dohl. 1980. Behavior of the Hawaiian spinner 
dolphin, Stenella longirostris. Fishery Bulletin, 77(4): 821-849.
    Norris, K.S., B. Wursig, R.S. Wells, S.M. Brownlee, C. Johnson, and 
J. Solow. 1985. The behavior of the Hawaiian spinner dolphin, Stenella 
longirostris. NMFS Southwest Fisheries Science Center Administrative 
Report No. LJ-85-06C. 213 pp.
    Oberbillig, D.E. 2000. Providing positive Wildlife Viewing 
Experiences: A Practical Handbook. Watchable Wildlife, Inc., Colorado 
Division of Wildlife Publication. 68 pp.
    Wells, R.S. and K.S. Norris. 1994. The island habitat. In: K.S. 
Norris, B. Wursig, R.S. Wells, and M. Wursig (Eds.), The Hawaiian 
Spinner Dolphin. University of California Press, Berkeley. Pp.31-53.
    Wursig, B., R.S. Wells, K.S. Norris, and M. Wursig. 1994. A spinner 
dolphin's day. In: K.S. Norris, B. Wursig, R.S. Wells, and M. Wursig 
(Eds.), The Hawaiian Spinner Dolphin. University of California Press, 
Berkeley. Pp. 65-102.

    Dated: September 26, 2006.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. E6-16202 Filed 9-29-06; 8:45 am]
BILLING CODE 3510-22-S