[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.

[[Page 57875]]

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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.
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2016-20324 Filed 8-23-16; 8:45 am]
BILLING CODE 3510-22-C