Federal Register, Volume 86 Issue 185 (Tuesday, September 28, 2021)

[Federal Register Volume 86, Number 185 (Tuesday, September 28, 2021)]
[Rules and Regulations]
[Pages 53818-53843]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-20616]

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Vol. 86

Tuesday,

No. 185

September 28, 2021

Part III

Department of Commerce

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National Oceanic and Atmospheric Administration

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50 CFR Part 216

Swim With and Approach Regulation for Hawaiian Spinner Dolphins Under
the Marine Mammal Protection Act; Establishment of Time-Area Closures
for Hawaiian Spinner Dolphins Under the Marine Mammal Protection Act;
Final Rule and Proposed Rule

Federal Register / Vol. 86 , No. 185 / Tuesday, September 28, 2021 /
Rules and Regulations

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 210901-0173]
RIN 0648-AU02

Swim With and Approach Regulation 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: Final rule.

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SUMMARY: We, NMFS, establish a regulation under the Marine Mammal
Protection Act (MMPA) to prohibit swimming with and approaching a
Hawaiian spinner dolphin within 50 yards (45.7 meters (m)) (for
persons, vessels, and objects), including approach by interception.
These regulatory measures are intended to prevent take of Hawaiian
spinner dolphins from occurring in marine areas where viewing pressures
are most prevalent; the swim-with and approach prohibitions apply in
waters within 2 nautical miles (nmi; 3.7 kilometers (km)) of the
Hawaiian Islands and in designated waters bounded by the islands of
L[amacr]na`i, Maui, and Kaho`olawe. 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 Hawaiian
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. This regulation is
expected to reduce take of Hawaiian spinner dolphins and the impact of
human viewing and interaction on these animals in the main Hawaiian
Islands (MHI).

DATES: This final rule is effective October 28, 2021.

ADDRESSES: Copies of this rule and the Final Environmental Impact
Statement (FEIS) and Record of Decision can be obtained from the
website. https://www.fisheries.noaa.gov/action/enhancing-protections-hawaiian-spinner-dolphins. Written requests for copies of these
documents should be addressed to Kevin Brindock, Deputy Assistant
Regional Administrator, Protected Resources Division, National Marine
Fisheries Service, Pacific Islands Regional Office, 1845 Wasp Blvd.,
Bldg. 176, Honolulu, HI 96818, Attn: Hawaiian Spinner Dolphin Final
Rule.

FOR FURTHER INFORMATION CONTACT: Kevin Brindock, NMFS, Pacific Islands
Region, Deputy Assistant Regional Administrator, Protected Resources
Division, 808-725-5146; or Trevor Spradlin, NMFS, Office of Protected
Resources, Deputy Chief, Marine Mammal and Sea Turtle Conservation
Division, Office of Protected Resources, 301-427-8402.

SUPPLEMENTARY INFORMATION: We developed this final rule after
considering comments submitted in response to an Advance Notice of
Proposed Rulemaking (ANPR), as well as information from the public
scoping period and public comment period for the Draft Environmental
Impact Statement (DEIS) and the proposed rule, from community meetings
and hearings on the proposed rule, and from relevant scientific
literature and a dedicated scientific research project.

Background

Viewing wild marine mammals in Hawai`i 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 Hawai`i's warm and protected waters to breed and calve. However,
increased marine mammal viewing has focused on small cetaceans, with a
particular emphasis on Hawaiian spinner dolphins (Stenella longirostris
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 Hawai`i in recent years (O'Connor 2009,
Impact Assessment 2018), putting new pressures on easily accessible
groups of resting Hawaiian spinner dolphins. Wiener (2016) found that
on the Wai`anae coast of O`ahu and the Kona coast of Hawai`i Island,
752,762 people are estimated to have participated in boat-based
commercial dolphin tours annually in 2013, which is 632,762 more than a
preliminary estimate conducted statewide in 2008 (O'Conner et al.
2009). Supporting this finding, Impact Assessment (2018) documented the
number of spiritual retreats (i.e., organized retreats centered on
dolphin encounters, dolphin-assisted therapy, and dolphin-associated
spiritual practices) on Hawai`i Island as increasing from 5 in 2007 to
47 in 2017. Similarly, commercial boat tours that facilitate close in-
water dolphin interactions increased on Hawai`i Island from 6 to 47
over the same period. 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 news and social media outlets,
which routinely contradict established wildlife viewing guidelines by
promoting close vessel or in-water encounters with the dolphins. As
noted by Wiener, Needham, and Wilkenson (2009) when interviewing
dolphin swim-with tourists, participants verbalized extreme
disappointment if they did not participate in up-close activities
during wild dolphin encounter trips, even when operators said that it
would not be in the best interest of the animals.
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). For example, Tyne (2015), who studied spinner dolphins
along the Kona coast of Hawai`i Island, noted that the spinner dolphin
population there is chronically exposed to human tourism activities
more than 82 percent of the time during daylight hours, with a median
interval between exposure events of 10 minutes. Heenehan et al. (2014)
observed up to 13 tour boats jockeying for position on a single dolphin
group, with up to 60 snorkelers in the water. In addition, officials
from the Hawai`i 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 have
expressed their concerns over human-dolphin interactions.
In 2010, we recognized 5 island-associated stocks and one pelagic
stock of Hawaiian spinner dolphins in our annual Stock Assessment
Report (SAR), identifying genetic distinctions and site fidelity
differences as reasons to separately manage stocks found in waters
surrounding the Hawaiian

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Islands (Andrews 2009, Andrews et al. 2010, Hill et al. 2009, Carretta
et al. 2011). Three of the five island-associated stocks (the Kaua`i/
Ni`ihau stock, O`ahu/four Islands stock, and Hawai`i 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 nmi (18.5 km) (Hill et al. 2010), and population
estimates for each stock are relatively small. The most recent SAR
indicates that the Hawai`i Island stock, which is thought to be the
largest stock, has an estimated 665 individuals (Coefficient of
Variation (CV)=0.09) (Tyne et al. 2014, Carretta et al. 2019). The
Kaua`i/Ni`ihau and O`ahu/4 Islands stocks are estimated to be around
601 (CV=0.20) and 355 (CV=0.09) individuals, respectively (Carretta et
al. 2019).
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 Hawai`i Island (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, Tyne et al.,
2017). These smaller groups visit specific habitats that are located
along the coastlines of the MHI. These preferred daytime habitats of
spinner dolphins are 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 and from 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.
Commercial operators and individuals interested in viewing or
interacting with Hawaiian spinner target essential daytime habitats
(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, Impact
Assessment 2018).
The effects of dolphin-directed activities on spinner dolphins,
especially activities that involve close approaches by humans, have
been well documented. Peer-reviewed scientific literature documents
disturbance of individual spinner dolphins as well as changes to
spinner dolphin group behavioral patterns and effects of swimmers on
dolphins' daily resting behavioral patterns (Norris et al. 1994;
Lammers 2004; Danil et al. 2005; Courbis 2007; Courbis and Timmel 2009;
Timmel et al. 2008; Forest 2001; Heenehan et al. 2017; Ostman-Lind et
al. 2004; Ostman-Lind 2009; Thorne et al. 2012; and Wiener 2016).
There are several studies that have investigated the importance of
adequate rest, and the negative impacts that can occur if animals do
not obtain adequate rest (e.g., Cirelli & Tononi 2008; Siegel 2008).
Studies involving Hawaiian spinner dolphins reported behaviors that
suggest a heightened state of alertness in response to swimmers and
vessels. Responses include aerial displays, tail-slapping, or other
visible behavior changes when closely approached by vessels and
swimmers (Forest 2001, Courbis and Timmel 2008); avoidance behaviors,
including increased swimming speed, directional changes, 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).
In some resting areas with consistent levels of exposure to human
activity, Hawaiian spinner dolphin resting activity is characterized by
such vigilance that it does not represent a natural resting state
(Danil et al. 2005; Tyne 2018). Vigilance, or enhanced brain function,
is essential for active behaviors such as foraging, socializing, and
avoiding predators. However, remaining in a state of constant vigilance
without recovering with adequate rest can hinder the abilities of
spinner dolphins to effectively forage and avoid predators (Dukas &
Clark 1995; Benoit-Bird & Au 2003; Tyne et al. 2018). Thus, an
inability to achieve a natural resting state could potentially cause
negative population-wide impacts to spinner dolphins over time.
Additionally, when marine mammals respond to disturbance events,
they can incur a cost in the form of the energy expended to respond
(Williams et al. 2006), as well as the lost opportunity to engage in
natural fitness-enhancing behavior (Lusseau 2003). For example, spinner
dolphins disturbed during rest engage in avoidance or distress
behaviors (Timmel et al. 2008; Danil et al. 2005; Forest 2001; Courbis
2008), which require energy. This disturbance detracts from the
dolphins' abilities to recuperate from energetically demanding
behaviors like 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 temporal and spatial 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. As stated above,
several researchers have observed disruption of Hawaiian spinner
dolphin behavioral patterns in response to human activity that suggest
the potential for biologically significant impacts. In other small
cetacean populations, chronic disturbance to natural behavioral
patterns has been linked to biologically

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significant impacts, such as habitat abandonment, reduced female
reproductive success, impeded activity and energy budgeting, and
increased vigilance (Bejder 2005; Bejder et al. 2006a, 2006b; Lusseau
and Bejder 2007; Williams et al. 2006; Lusseau 2003; Johnston 2014).
Researchers investigating impacts of human disturbance to spinner
dolphin populations outside of Hawai`i observed a decrease in residency
times in a Tahitian resting bay (Gannier & Petiau 2006) and abandonment
of a resting bay in Samadai Reef, Egypt (Nature Conservation Sector
2006; Notarbartolo-di-Sciara et al. 2009) in response to high levels of
human activity.
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 for Hawaiian spinner dolphins because they are
theorized to be more vulnerable to disturbance than other marine mammal
populations. Bejder (2005) suggests resident, closed, or isolated
populations (i.e., local populations with barriers to gene flow,
similar to Hawaiian spinner dolphins) are more at risk from negative
stressors, such as disturbance from human activity, because the impacts
to multiple individuals' health and fitness are quickly reflected in
the overall fitness of the population.
Spinner dolphins also exhibit spatially and temporally constrained
behavioral patterns in their daily cycle that likely make it more
difficult to compensate for high levels of disturbance. Spinner
dolphins are reported to have high fidelity to specific daytime resting
and evening foraging areas and reside in these areas during certain
times of the day (Norris & Dohl 1980; Norris et al. 1994; Benoit-Bird &
Au 2009; Thorne et al. 2012; Tyne et al. 2015). This spatially and
temporally constrained behavioral strategy allows spinners dolphins to
both forage efficiently and limit their risk of predation while resting
(Johnston 2014). Disruption to essential behaviors (e.g., resting) by
human activity drive individuals to respond by either moving away from
the disturbance to continue the behavior somewhere else, or remaining
in the area as an attempt to continue the behavior, despite the
disturbance. The ability of a population to adapt and persist through a
disturbance is a measure of its resilience (Hollins 1973), and
populations that are more constrained, like the island-associated
stocks of Hawaiian spinner dolphins, are less resilient to disturbance
than populations that exhibit more flexible behavioral strategies
(Lusseau et al. 2009). Accordingly, the rigid daily cycle of small
resident spinner dolphin populations of the MHI likely makes them more
vulnerable to negative impacts from human disturbance (Tyne et al.
2017).
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 Hawai`i and
observed changes to spinner dolphin behavioral patterns over time are a
cause for concern. Prohibiting approach within 50 yards (45.7 m) of
Hawaiian spinner dolphins and eliminating swim-with activities is
expected to minimize disturbance that would result in take.
This regulation adopts a 50 yard (45.7 m) approach buffer around
spinner dolphins, which is consistent with well-established national
and regional guidelines, including the recommended viewing distance for
the Dolphin SMART program, our regional Responsible Marine Wildlife
Viewing Guidelines (publicly available at https://www.fisheries.noaa.gov/pacific-islands/marine-life-viewing-guidelines/viewing-marine-wildlife-hawaii), and our national viewing guidelines
for dolphins and porpoises (publicly available at https://www.fisheries.noaa.gov/topic/marine-life-viewing-guidelines#guidelines-&-distances).
The 50 yard (45.7 m) approach regulation, which includes a
prohibition on swimming with dolphins, is intended to reduce the degree
of behavioral disruption from close approaches by vessels and swimmers,
while placing the least restrictive burden on the viewing public. As
indicated in the proposed rule (81 FR 57854, August 24, 2016) and the
FEIS, 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 (approximately 164 yards) 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.
It is possible that implementing an approach restriction at a
greater distance (e.g., 100 or 150 yards (91.4 or 137.1 m)) could
provide better protection from disturbance. However, we also recognized
that not all approaches within 100 or 150 yards (91.4 or 137.1 m)
result in take of spinner dolphins, and that swimmers may have
difficulty judging and achieving greater distances around these animals
because spinner dolphins are fast moving and relatively small (81 FR
57862, August 24, 2016). We have therefore determined that a 50 yard
(45.7 m) approach distance is appropriate, as this will provide
increased protection and safety for these spinner dolphins, has been a
recommended viewing distance in long-lasting regional and national
guidelines, and will not unreasonably restrict the public from
observing these animals. We caution that disruptive human behaviors can
still result in take at distances greater than 50 yards (45.7 m), and
that compliance with the 50 yard (45.7 m) requirement does not
necessarily absolve those behaviors from enforcement action
Marine wildlife viewing can be a powerful tool to promote species
awareness and conservation. Dolphin and whale watching experiences
provide an avenue for the public to learn about conservation issues and
increase empathy towards these animals (Wilson & Tisdell 2002; Wiener
2016). Implementing a 50 yard approach rule will still allow the
wildlife viewing public to experience spinner dolphins in a way that
will minimize disturbance to the animals' natural behaviors. These safe
encounters, particularly if coupled with educational interpretation
and/or trained tour guides, will likely benefit spinner dolphin
conservation and bring an awareness to conservation issues for other
protected marine species.

Changes From Proposed Rule

In a proposed rule published on August 24, 2016 (81 FR 57854), we
proposed a regulation under the MMPA to prohibit (with exceptions)
swimming with and approaching a Hawaiian spinner dolphin within 50
yards (45.7 m) (for persons, vessels, and objects),

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including approach by interception, within 2 nmi of the MHI and
designated waters in between the islands of L[amacr]na`i, Maui, and
Kaho`olawe. This proposed rule was published along with a DEIS
describing alternative actions and announcements for six public
hearings occurring in September 2016.
There are a number of changes that were made to this proposed rule
following the public input process and the review of new data. These
changes are outlined in the following paragraphs.
In the proposed rule, we refer to the ``designated waters in
between the islands of L[amacr]na`i, Maui, and Kaho`olawe.'' In the
final rule we changed the text to read, ``designated waters bounded by
the islands of L[amacr]na`i, Maui, and Kaho`olawe.'' This change does
not alter the boundaries of the area described in the proposed rule.
In the proposed rule, we specified that the rule was applicable in
all waters within 2 nmi of the MHI and in all waters located between
the islands of L[amacr]na`i, Maui, and Kaho`olawe.
In the final rule, we specify that the rule was applicable in all
waters within 2 nautical miles (nmi) of the main Hawaiian Islands, and
in all waters bounded by the islands of L[amacr]na`i, Maui, and
Kaho`olawe.
In the proposed rule, we listed six exceptions to this rule:
(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 Hawaiian
spinner dolphin, provided the vessel continues normal navigation and
makes no effort to engage or pursue the animal. For purposes of this
exception, a vessel is defined as a watercraft or other artificial
contrivance used, or capable of being used, as a means of
transportation on water (1 U.S.C. 3); a vessel is underway if it is not
at anchor, made fast to the shore, or aground;
(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.
Upon review of the comments received during the public comment
period, we decided to add two exceptions for: (1) Vessels that are
anchored or aground and approached by spinner dolphins, provided they
do not make any effort to engage or pursue the animal(s), and (2)
commercial fishing vessels that incidentally take spinner dolphins
during the course of commercial fishing operations, provided such
vessels operate in compliance with a valid marine mammal authorization
in accordance with MMPA Section 118(c). This change is fully described
below in the response to Comment 6.
In response to a public comment, we also amended exception (2) to
read ``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.'' This amendment to the
exception, adds ``Hawaiian'' to spinner dolphins to specify the island-
associated stocks of spinner dolphins that are found near the MHI and
are considered resident stocks.

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 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). NMFS has developed regulations under the MMPA to
protect marine mammals from take. An example of this type of regulation
is a 100 yard (91.4 m) approach limit for humpback whales within 200
nmi of the islands of Hawai`i (81 FR 62010; September 8, 2021). This
regulation also prohibits approach by interception and prohibits
approach by aircraft within 1,000 feet (304.8 m). In addition to
regulations, NMFS has developed national and regional guidelines for
conducting responsible marine wildlife viewing to help the public avoid
causing any take (harassment or disturbance) of protected wildlife
species. The NMFS Pacific Islands Regional Office's viewing guidelines
for Hawai`i 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 Hawai`i, NMFS has partnered with the State of
Hawai`i 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. See the proposed rule for more examples and discussion
of additional regulations and guidelines.

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 Hawai`i's waters (see Background
and the proposed rule for more discussion). Based on extensive review
and analysis through internal scoping, external scoping via an ANPR (70
FR 73426, December 12, 2005), public scoping for the DEIS, the best
available scientific information, and public comments on the proposed
rule, 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. Despite the existing regulations and
guidelines, chronic disturbance to spinner dolphins continues to occur
and additional action is required to protect spinner dolphins from
take. We therefore deem it necessary and appropriate to adopt
additional regulations to protect Hawaiian spinner dolphins from
activities that result in take, including harassment or other forms of
disturbance as currently defined by 0statute and regulation.

[[Page 53822]]

Development of the Regulation

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. 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 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 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 Kaua`i, O`ahu, Maui, and Hawai`i,
and oral statements were taken at each meeting. NMFS received a
combined 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 throughout both 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 by topic in the final scoping report, and
include the following: Hawaiian spinner dolphin biology and behavior;
cultural issues; cumulative effects; data/data gaps; direct and
indirect effects; education/outreach; enforcement; guidelines/solutions
for other species or from other countries; human-dolphin interaction;
medical benefits from swimming with dolphins; the 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 was the need for effective
and enforceable regulations.
As a result of stakeholder concerns expressed through these public
comments, and to prepare the proposed 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 considered in the DEIS.
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 https://www.fisheries.noaa.gov/action/enhancing-protections-hawaiian-spinner-dolphins.
During the initial scoping period for the DEIS, 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) project, conducted jointly by Duke University and
Murdoch University between September 2010 and December 2012. The
SAPPHIRE project's objective was to provide baseline data on the local
abundance, distribution, and behavior of spinner dolphins at four bays
on Hawai'i Island to assess spinner dolphin daytime habitat use and
resting behavior, residency and fidelity patterns in nearshore habitats
spinner dolphin exposure to human activities, and spinner dolphin
demographic response to human activities.
Results from this study provided robust population estimates for
the Hawai`i 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 the results from the SAPPHIRE project have been published in
scientific literature and scientific reports and were used to inform
this rulemaking process (Thorne et al. 2012, Johnston et al. 2013,
Heenehan et al. 2014, Heenehan et al. 2016, Heenehan et al. 2017, Tyne
et al. 2014, Tyne 2015, Tyne et al. 2015, Tyne et al. 2016, Tyne et al.
2017, Tyne et al. 2018). Many of these studies are described in detail
in the proposed rule and the Background section above.
We relied on the public comments on the ANPR and the NOI, and on
the best available scientific information to develop a range of
regulatory and non-regulatory alternatives in the DEIS, including the
No Action 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 regulation, which also includes no interception (i.e.,
``leapfrogging'' or placing a person or vessel in the path of dolphins
for the purpose of interception).

Proposed Rulemaking

On August 24, 2016, we proposed a regulation under the 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. The proposed regulatory measures were
intended to prevent take of Hawaiian spinner dolphins, including
harassment and disturbance, from occurring in marine areas where
viewing pressures are most prevalent. Prohibitions would apply in
waters within 2 nm (3.7 km) of the MHI and in the waters bounded by the
islands of L[amacr]na`i, Maui, and Kaho`olawe. The proposed rule also
included exemptions for certain activities. We published the proposed
rule in the Federal Register and requested public comment on the
proposed regulation, the draft EIS, and supporting documents. The
public comment period ended on October 23, 2016; however, in response
to multiple requests from the public, the comment period was later
extended until December 1, 2016 (81 FR 80629, November 16, 2016). We
held six public hearings occurring in September 2016 across the State
of Hawai`i. During the public hearings, 145 people provided recorded,
oral testimony on the proposed rule.

[[Page 53823]]

Comments and Responses to Comments on the Proposed Rule

Throughout the public comment period, NMFS received 22,031 written
submissions via letter, email, and the Federal eRulemaking Portal, in
addition to the 145 oral testimonies received during the public
hearings described above. Of these comments, 2,294 were unique, with
anywhere from two to 17,000 near-duplicates of each. Additionally, NMFS
received a letter supporting swim-with and approach regulations
submitted by Kama`[amacr]ina United to Protect the `[Amacr]ina (KUPA)--
Friends of Ho`okena Beach Park (Kauhak[omacr] Bay), which contained
over 285 names and signatures. Comments were submitted by individuals;
research, conservation, and education groups; trade and industry
associations; tour and retreat operators and participants; and Federal,
state, and local government entities. We posted all written comments
received during the comment period on the Federal eRulemaking Portal
(https://www.regulations.gov/document?D=NOAA-2005-0226-0002). We have
considered all public comments and provide responses to all significant
issues raised by commenters that are associated with the proposed
rulemaking. Comments and issues have been aggregated into the comment
summaries below in an order that similar assertions, suggested
alternatives or actions, data, and clarifications are addressed
together. We have not responded to comments or concerns outside the
scope of this rulemaking, which is to prevent take of Hawaiian spinner
dolphins caused by viewing and interaction pressures. Many of the
written and oral comments from individual members of the public were
short or general statements that (1) expressed support for the proposed
regulation and/or spinner dolphin conservation in general, (2)
expressed disagreement with the proposed regulation, or (3) expressed
disagreement with all regulations prohibiting human interaction with
dolphins in general. We did not respond to comments expressing general
support or opposition. In addition, we did not respond to anecdotes
that many people shared regarding their personal experiences swimming
with the dolphins, nor to anecdotes that were shared about witnessing
human users harassing spinner dolphins in coastal bays, unless they
were accompanied by specific information or comment on the proposed
rule. The following comment summaries and agency responses are
organized by the issue categories we identified in the proposed rule
for public comment, with three issue categories added at the end
because they did not fit squarely in one of the categories in the
proposed rule.

Effects of the Increasing Number of Human Interactions With Hawaiian
Spinner Dolphins

Comment 1: Many commenters raised questions about the scientific
information used to support the spinner dolphin protections in this
rule. Scientific information on the impacts of close approach was
called biased, inconclusive, incomplete, or wrong. Some commenters
noted their personal observations were not consistent with the
published studies, asserting that they have not seen spinner dolphins
changing their behavior in response to vessels and swimmers, nor have
they seen spinner dolphin populations decreasing. Additionally, some
commenters suggested that scientific studies are not complete since
most peer reviewed studies include shore-based or vessel-based
observations as opposed to underwater observations.
Response: We relied on the best available science to develop a
regulation to improve protections for spinner dolphins in Hawai`i. The
majority of information used to develop the proposed rule, DEIS, and
FEIS came from peer reviewed scientific publications. To a lesser
extent, we used unpublished data, personal accounts, and other
anecdotal information. We gave greater weight to empirical studies
published in scientific journals than to personal observation and
interpretation because such scientific studies use established
scientific methods, test hypotheses, employ statistical analyses, and
have been peer reviewed. These steps in the scientific process reduce
the potential for bias in results. Reviewing best-available information
from multiple independent scientists limits concerns about potential
bias related to any one researcher, and provides a complete, robust set
of information from which a decision can be made. Reported behavioral
changes observed in scientific studies may not be obvious to an
observer who is not systematically observing the behavioral patterns
that support spinner dolphins throughout the day.
Many independent scientists studying Hawaiian spinner dolphins have
reported changes in spinner dolphin behavior or reduced time spent
engaging in resting behavior when in the presence of human activity
(Norris et al. 1994; Lammers 2004; Danil et al. 2005; Courbis 2007;
Courbis and Timmel 2009; Timmel et al. 2008; Forest 2001; Heenehan et
al. 2017; Ostman-Lind et al. 2004; Ostman-Lind 2009; Thorne et al.
2012; and Wiener 2016). These studies show a clear trend that certain
types of human activity, especially dolphin-directed activity, can
disturb spinner dolphins by disrupting behavioral patterns, to a degree
that is considered Level B harassment under the MMPA.
Additionally, we relied on studies that investigated the biological
and population-wide impacts of human disturbance to other dolphin and
marine mammal populations around the world. As indicated in the
sections above, high levels of exposure to human activities have had
deleterious impacts on other analogous dolphins and marine mammal
species, including habitat abandonment, reduced female reproductive
success, impeded activity and energy budgeting, and increased vigilance
(Bejder 2005; Bejder et al. 2006a, 2006b; Lusseau and Bejder 2007;
Williams et al. 2006; Lusseau 2003; Johnston 2014). Several spinner
dolphin researchers have also argued that spinner dolphins are at a
higher risk of experiencing negative biological impacts because they
are much more vulnerable to human disturbance than other marine mammal
populations, as previously stated (Danil et al. 2005; Bejder 2005; Tyne
et al. 2017; Tyne et al. 2018).
A few commenters referenced a study by Tyne (2015) in Hawai`i
Island resting bays that claimed he did not observe a significant
effect from human activity on the probability of spinner dolphins
resting, socializing, or traveling, and that spinner dolphins have
become habituated and/or tolerant to human activity. Tyne concluded,
however, that the absence of a measurable impact was likely because the
high levels of exposure to human activity (82.7 percent within 100 m)
and the brief time periods between exposures (median duration of 10
minutes) within these bays did not allow an adequate level of control
data (i.e., data collected when no human activity was present). The
author claims that this level of exposure to human activity is higher
than any other studied dolphin population in the world, and several
other studies on Hawaiian spinner dolphins have observed a disruption
in resting behavioral patterns from human activities (Forest 2001;
Danil et al. 2005; Courbis 2007; Courbis 2008; Timmel et al. 2008). In
a subsequent publication, Tyne and his co-authors suggested that
spinner dolphins did not have enough time in between exposures to human
activity to regress into pre-disturbed resting behavior, and the
observed

[[Page 53824]]

resting behavior was one of a more vigilant nature and may not
represent a natural resting state (Tyne et al. 2018). The authors
concluded that vigilance decrement (i.e., physical and cognitive
fatigue from inadequate rest from a vigilant state) experienced by
spinner dolphins may impair cognitive and decision-making abilities.
Resting and abating vigilance decrement is particularly crucial for
spinner dolphin survival because spinner dolphins require complex
cooperative strategies and coordination between individuals to forage
and avoid predation. Although spinner dolphins may appear to
``tolerate'' close human activity, the authors argue that spinner
dolphins may decide that it is less costly to remain in areas where
they are frequently disturbed and may experience constant vigilance, as
opposed to an alternate undisturbed site that would make them more
vulnerable to predation. Even though spinner dolphins may appear to be
habituated or tolerant to human activity, their continued residence in
these areas is likely due to the lack of suitable, undisturbed
habitats, and, therefore, the dolphins are subject to endure high
levels of disturbance (Tyne et al. 2018).
Several spinner dolphin studies utilize multiple data collection
techniques to observe dolphin behavior in the presence of human users
and vessels, including shore-based observations, vessel-based
observations, and in-water passive acoustic monitoring. Additionally,
Wiener (2016) conducted in-water surveys of human and dolphin behaviors
using Go-Pro cameras at 14 known spinner dolphin resting sites and
found that humans exhibited aggressive behaviors (defined as active
pursuit of interaction by chasing, diving, or deliberate approach)
while interacting with dolphins 27 percent of their in-water time.
Combined, the above studies provide multiple lines of evidence
regarding certain vessel and swimmer activities that can potentially
disturb and disrupt behavioral patterns of spinner dolphins, which is
considered take by Level B harassment under the MMPA. Additionally,
while underwater observations can yield insights into dolphin mating
behaviors, they are not required to record evidence of disturbance, as
disturbance can be seen in acoustic activity of dolphins, as well as
behaviors visible from shore and from vessels. An overview of the
scientific literature used in our decision making is available in the
FEIS, section 1.4 ``Scientific evidence of impacts of small cetaceans
caused by human interactions.''
We do not base this rule on population decline. The MMPA prohibits
harassment of any marine mammal and additional measures are necessary
to minimize harassment and prevent take from occurring. It is not
possible to gain a thorough understanding of spinner dolphin abundance
from observations in one or two bays. Factors such as habitat
displacement, the movement of prey species in offshore waters, or
season can account for increases or decreases in the number of spinner
dolphins observed using a particular bay. Analysis of long-term trends
has not been conducted with the available data because the methods used
for spinner dolphin abundance surveys throughout the last several
decades were not consistent, and are, therefore, difficult to compare.
Although the most recent survey suggested a potential decline in the
Hawai`i Island stock from earlier studies, the research conducted in
the 1980s did not include year-round surveys and used different methods
and a different survey area than more recent 2010-2011 surveys (Norris
et al. 1994; Tyne et al. 2014; SAR 2019). However, more recent survey
studies, such as surveys conducted in the SAPPHIRE project, provide
baseline data that can be compared to future survey studies to analyze
a long-term population abundance trend. That said, other investigations
have examined the relationship between cumulative vessel exposure and
female dolphin reproductive success. For example, Bejder (2005 and
2006a) observed bottlenose dolphins and cautioned that dolphin tourism
has potential for long-term consequences on female dolphin
productivity, and that impacts may be amplified for small, closed, or
isolated, resident cetacean populations. While Bejder does not focus
his studies on spinner dolphins, it is important to note here that
Hawaiian spinner dolphins fit the description of small, closed, or
isolated, resident cetacean populations.
It is important to note that evidence of a decline in population
abundance or adverse physiological or reproductive impacts are not a
requirement when classifying which human actions are considered
harassment under the MMPA. The statute characterizes Level B harassment
as certain human acts (i.e., pursuit, torment, or annoyance) that have
the potential to disturb a marine mammal by disrupting behavioral
patterns. Studies that provide clear evidence of this phenomenon with
Hawaiian spinner dolphins have been thoroughly referenced in the
Background section. The threshold for Level B harassment does not
require evidence of adverse biological or population-wide impacts.
However, we do assert that human activities that cause disruption of
behavioral patterns could be adversely impacting Hawaiian spinner
dolphins, similar to what is referenced in the aforementioned studies
on other analogous small cetacean populations. Therefore, we have
decided to implement additional protections for Hawaiian spinner
dolphins to minimize take that we know is currently occurring, even
though we recognize that there is not clear evidence of population
decline or adverse biological impacts. This precautionary approach is
the best way to protect and conserve Hawaiian spinner dolphin
populations and is necessary in order for NMFS to comply with our
statutory requirement under the MMPA.

Proposed Prohibited and Exempted Activities

Comment 2: One commenter stated he is against commercial swim-with-
dolphin programs and proposed a 5-year moratorium on all commercial
aspects of swimming with dolphins. Several commenters suggested that
commercial swim-with-dolphin operators need to be regulated/restricted
but are not in favor of limiting non-motorized vessels or individuals'
rights to swim with the dolphins. Commenters suggested that approach
distance regulations should only be applied to commercial tour
operators, rather than individual swimmers. One commenter noted that
large boatloads of people cause most of the trouble for spinner
dolphins. Additionally, one commenter suggested that the 50 yard (45.7
m) approach distance only apply within designated essential daytime
habitats.
Response: First, we note that all of our alternatives, except the
no action alternative, would prohibit swimming with dolphins. One
reason for this is that, while commercial operations may occur at a
larger scale and may appear to be more egregious, scientific studies
have shown that any vessel or person approaching near dolphins has the
potential to disturb and change their behavior (Forest 2001, Courbis
and Timmel 2008, Ostman-Lind et al. 2004, Courbis 2004). This can
result in take which is prohibited under the MMPA. The regulation is
written to apply to any person or vessel that approaches a Hawaiian
spinner dolphin within 50 yards (45.7 m).
As noted in the proposed rule, DEIS, and FEIS, Hawaiian spinner
dolphin take (including harassment and

[[Page 53825]]

disturbance) is not a problem that is specific to one ocean user group
or one area of the Hawaiian Islands. Taking Hawaiian spinner dolphins
occurs as a result of close approach by a variety of ocean users,
including commercial tour operators, non-commercial motorized and non-
motorized vessels, and swimmers in many areas of Hawai`i's nearshore
waters (see section 3.1.8 of the FEIS describing the Affected
Environment and targeted areas across the MHI). There are multiple
studies that have attempted to analyze how the presence of swimmers,
independent of vessels, can disturb the natural behavior of spinner
dolphins, including changes in resting patterns, avoidance behavior,
changes in direction, aerial behavior patterns (Danil et al. 2005;
Courbis 2004; Courbis 2007; Timmel et al. 2008; Johnston et al. 2013).
While tour operations may be the primary cause of disturbance in some
areas (e.g., Makako Bay), in other areas, shore-based swimmers or
recreational users are the primary concern (e.g., Kauhak[omacr] Bay).
Therefore, we apply these prohibitions designed to limit take to all
user groups.
Although specific essential daytime habitats are often targeted for
close approach activities, spinner dolphins may travel among these
areas and be found in many nearshore locations throughout the day. We
are concerned that applying approach limits only within certain
heavily-used areas will displace human interactions with dolphins to
other areas. In addition, in some areas, dolphins do not predominantly
use discrete bays for their resting habitat as they do in other
locations. For example, the 10-fathom isobath off O`ahu's west coast
was nicknamed the ``spinner expressway'' because dolphins are often
found moving back and forth between sites throughout the day. Only
protecting discrete areas would leave the dolphins vulnerable to take
in areas outside of designated essential daytime habitats.
Comment 3: Some commenters claimed harassment of spinner dolphins
is not a problem because swimmers and tour operators police themselves.
Response: Several studies suggest that Hawaiian spinner dolphins
are regularly being disturbed by human activities, especially in known
resting areas (Norris et al. 1994; Lammers 2004; Danil et al. 2005;
Courbis 2007; Courbis and Timmel 2009; Timmel et al. 2008; Forest 2001;
Heenehan et al. 2017; Ostman-Lind et al. 2004; Ostman-Lind 2009; Thorne
et al. 2012; and Wiener 2016). Further, the swim-with-dolphin tour
industry has grown tremendously over the last decade (Wiener, 2016),
thus exacerbating such disturbance. Individual and tour self-policing
may help limit harassment, but it has not been sufficient to avoid
negative effects to the dolphins and, given the potential for long-term
impacts, such as habitat displacement, adverse impacts to reproductive
fitness, and population declines, there is a need for enhancing
protections beyond self-policing.
Comment 4: One commenter argued that the Federal government does
not have authority to regulate coastal waters. The commenter argues
that this is a local issue, and should be governed by local government
authorities.
Response: NMFS disagrees. These regulations apply in specified
areas of U.S. navigable waters surrounding the State of Hawaii. Under
sections 102(a) and 103 of the MMPA, NMFS may enforce regulations
prohibiting take of marine mammals by any person, vessel, or conveyance
in waters, lands, ports, harbors and other places under the
jurisdiction of the United States. Additionally, as described in a
November 16, 2016 letter NMFS received from the State of Hawai`i DLNR
following publication of the 2016 proposed rule, the State supports
implementation of regulations to prohibit swimming with or approaching
a Hawaiian spinner dolphin within 50 yards.
Comment 5: Some commenters expressed concern that exceptions #1 and
#2 in the proposed rule (which provide exceptions for people who
inadvertently come within 50 yards (45.7 m) of a dolphin or are
approached by a dolphin, and for vessels that are underway and
approached by a dolphin, provided the person or vessel makes no effort
to engage the dolphin and continues normal navigation) will ``hollow-
out'' the rule and specifically make enforcement difficult as it will
allow those approaching dolphins within 50 yards (45.7 m) to claim that
the animal approached them. Additionally, commenters asked how NMFS
will distinguish between an interaction that was inadvertent and one
that was purposeful. One commenter suggested that subsection (d) of the
proposed rule ``affirmative defense'' be eliminated in its entirety
because it places too much burden on a vessel operator and makes the
exceptions difficult to successfully invoke.
Response: In developing this rule, NMFS understood that spinner
dolphins, as fast-moving marine mammals, may approach swimmers and
boaters who, through no fault of their own, are placed in apparent
violation of the 50-yard approach regulation. NMFS intends this rule to
deter humans from approaching and disturbing spinner dolphins; it is
not intended to punish individuals who come into inadvertent contact
with spinners and then take all necessary and appropriate action to
withdraw. While we appreciate that some individuals might abuse this
defense, we believe that the NOAA enforcement proceeding is the
appropriate forum for resolving these questions on a case by case
basis.
Comment 6: We received comments requesting specific exemptions from
this proposed rule for fishing vessels. In particular, Hawai`i
Fishermen's Alliance for Conservation and Tradition (HFACT) requested
that NMFS consider the following exception, ``Any fishing vessel that
is anchored or adrift and is approached by a spinner dolphin, provided
the vessel makes no effort to engage or pursue the animal.'' In
addition, the Hawai`i Longline Association (HLA) noted that the
longline fisheries do not threaten spinner dolphins with ``chronic
disturbance'' and that, to the extent that the fisheries could interact
with spinner dolphins, these interactions are already regulated under
the MMPA. To minimize confusion for these commercial fishing vessel
operators, HLA requested an exemption for ``vessels that are duly
licensed to fish in the Hawai`i-based commercial longline fisheries.''
Response: In response to this comment, the final rule clarifies
that this prohibition does not apply to a commercial fishing vessel
that incidentally takes a spinner dolphin during the course of
commercial fishing operations, provided such vessel operates in
compliance with a valid marine mammal authorization in accordance with
MMPA Section 118(c). See exception (8) in the final regulations.
Regarding HFACT's requested exception, a vessel that is adrift is, in
accordance with COLREGS Rule 3, a vessel underway powered by the
prevailing current, a scenario which is included in exception (2).
However, HFACT has identified that a vessel at anchor may not be able
to avoid coming within 50 yards (45.7 m) of spinner dolphins if
approached by these animals, and we agree that this scenario should be
included in the exceptions to prohibitions. As a result, we have added
an exception to the final rule, which exempts any vessel that is
anchored or aground and is approached by a Hawaiian spinner dolphin,
provided the vessel makes no effort to engage or pursue the animal (50
CFR 216.20 (c)(5)). We believe that the addition of this exception will
not affect the overall purpose of this rule and will provide allowances
for vessels that are not

[[Page 53826]]

engaged in dolphin-directed activities, but find themselves within 50
yards (45.7 m) of approaching animals. Additional information is
included in the Changes from Proposed Rule section later in this rule.
Comment 7: Several commenters suggested that, as part of this
regulation, NMFS should require all vessels to participate in the
Dolphin SMART program and should include Dolphin SMART guidelines in
the regulation. One particular commenter stated that they operate a
tour company that follows Dolphin SMART guidelines and has successfully
maintained a stable business.
Response: This regulation adopts a 50 yard (45.7 m) approach buffer
around spinner dolphins, which is the same approach distance
recommended by the Dolphin SMART program, our regional Responsible
Marine Wildlife Viewing Guidelines (publicly available at https://www.fisheries.noaa.gov/pacific-islands/marine-life-viewing-guidelines/viewing-marine-wildlife-hawaii), and our national guidelines for
dolphins and porpoises (publicly available at https://www.fisheries.noaa.gov/topic/marine-life-viewing-guidelines#guidelines-&-distances). While we appreciate the commenters' support of the
Dolphin SMART program, this program is a voluntary recognition and
education program designed specifically for tour operators and is not
appropriate for all vessels, including fishing vessels and personal
recreational vessels. For instance, guidelines such as those requiring
vessels to engage in responsible advertising and to provide outreach
materials on responsible viewing to customers may not be applicable to
private vessels. Therefore, we support maintaining the Dolphin SMART
program as part of a separate spinner dolphin conservation effort,
rather than making all of the guidelines part of this regulation.

Whether 50 Yards Is the Most Appropriate Distance for Swim-With and
Approach Restrictions To Reduce Take of Spinner Dolphins

Comment 8: Several commenters expressed concern that the proposed
rule will be difficult to enforce and will be easily arguable since the
burden will be on enforcement officials to show that a human user was
within 50 yards (45.7 m) and that a violation occurred. Commenters also
noted that it can be difficult to judge distance, making it difficult
for people in the water and for enforcement officials to determine if
people in the water are within 50 yards (45.7 m).
Response: Because the rule has an objective approach distance, we
believe that this rule can be effectively enforced. This approach
prohibition clarifies protections in the MMPA by establishing a clear,
objective distance requirement, thus facilitating enforcement
activities while preventing take of spinner dolphins. NMFS has
implemented 50 yards (45.7 m) as the recommended viewing distance for
dolphins and small whales at both the regional and national level for
decades, so this standard will not be a novel standard for members of
the public. Enforcement officials are experienced at judging the
distances and have experience through enforcement of other approach
regulations, such as the 100 yard (91.4 m) approach rule for humpback
whales in Hawai`i (81 FR 62010, September 8, 2016). In addition to
visual observations, enforcement officials will use other evidence,
such as photographic evidence, video evidence, and/or eye-witness
accounts, when determining if a violation of the rule occurred.

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

Comment 9: We received comments in favor of decreasing or
increasing the proposed approach distance to lessen the impact on the
viewing industry and to increase protections for Hawaiian spinner
dolphins, respectively. Specifically, three commenters suggested that a
50 yard (45.7 m) approach distance is too strict, and would not allow
for any dolphin viewing activities to take place at that distance. One
commenter suggested a 25 yard (22.9 m) approach distance be used
instead, and others suggested 20 yards (18.3 m) or even 10 yards (9.1
m). Over 17,900 commenters suggested that a 100 yard (91.4 m) approach
distance is more appropriate than 50 yards (45.7 m). These commenters,
many submitting comments through a form letter, argued that a 100 yard
(91.4 m) approach distance would be easier to comply with because it is
consistent with the humpback whale approach rule in Hawaiian waters (81
FR 62018, September 8, 2016). Commenters argued that this consistency
would lead to greater compliance and easier enforcement. Additionally,
commenters argued that a 100 yard (91.4 m) buffer zone would provide
spinner dolphins in Hawai`i increased protection from exposure to human
disturbance. Over 2,600 commenters suggested that 150 yards (137.1 m)
is a more appropriate buffer distance because it conforms to scientific
evidence that dolphins can detect a disturbance within 150 yards (137.1
m). Several commenters suggested different approach distances based on
the type of human user or the location. Finally, one commenter claimed
that dolphin tour boats on the Wai'anae coast of O'ahu are chumming the
waters to attract dolphins, honu (green sea turtles), and fishes, which
also attracts sharks. Therefore, they felt that 50 yards (45.7 m) is
not enough and that a radius of 1 mile is required so as to protect
humans from what they perceived as an increased frequency in shark
attacks.
Response: As stated in the rationale of the proposed rule and in
the DEIS, we selected the 50 yard (45.7 m) approach regulation because
this distance is the least restrictive measure that still reduces the
threat of take from occurring (including harassment and disturbance) to
Hawaiian spinner dolphins from close approaches by vessels and
swimmers. NMFS believes the 50 yard (45.7 m) distance will still allow
for meaningful dolphin watching opportunities. The 50 yard (45.7 m)
viewing distance has been recommended in NOAA's Watchable Wildlife
Viewing guidelines for many years and is also used by the Dolphin SMART
program. We disagree that this distance is overly restrictive, as many
tour operators in Hawai`i and elsewhere around the country have been
certified in the Dolphin SMART program and have been able to run
successful dolphin watching operations while complying with the 50 yard
(45.7 m) approach distance.
We evaluated the effects of a 50 yard and 100 yard (91.4 m)
approach distance and discussed scientific literature regarding other
distances. As indicated in the proposed rule, the FEIS, and the
background section of this rule, scientific literature indicates that
changes in spinner dolphin behavior are detectable when vessels or
swimmers are found at distances ranging out as far as 500 m (Ross 2001,
Forest 2001, Danil et al. 2005, Courbis and Timmel 2008, Timmel et al.
2008, Symons 2013, Johnston et al. 2014) and that effects generally
increased as distance from the dolphins decreased (Ross 2001). We also
recognized that there are scientific studies indicating that swimmer
presence within 150 m (164 yards) reduces the likelihood of spinner
dolphins being in a resting state, although vessel presence within this
distance did not appear to cause disturbance. This research illustrates
the complexity of the issue and why selecting one distance that will
provide

[[Page 53827]]

protection from disturbance can be difficult. However, as described in
the proposed rule, we also recognized that not all approaches within
100 or 150 yards (91.4 or 137.1 m) are likely to result in take of
spinner dolphins, and that swimmers may have difficulty judging and
achieving greater distances around these animals because they are fast
moving and relatively small. In comparison to viewing distances for
large whales, the 100 yard distance (or greater) would likely decrease
viewers' ability to actually see spinner dolphins without using visual
aids, such as binoculars. Although consistency with the humpback
approach regulation (which prohibits approaching within 100 yards (91.4
m) of humpback whales) may be easier to remember, and thus simplify
compliance, our selection of 50 yards (45.7 m) was guided by the most
appropriate distance to prevent take of spinner dolphins from
occurring, while placing the least restrictive burden on the viewing
public. We have therefore determined that a 50 yard (45.7 m) approach
distance is appropriate, as this distance will allow people to observe
spinner dolphins, while providing increased protection and safety for
these animals.
Finally, NMFS regulations do prohibit the feeding of wild dolphins
(50 CFR 216.3), so any chumming activity is properly reported to NMFS
Office of Law Enforcement. These regulations prohibit feeding and,
while not specifically designed to prevent shark attacks on humans,
should serve as a deterrent for any person considering chumming to
attract dolphins.

Research Recommendations and Priorities for Better Understanding How
Human Disturbance Affects Hawaiian Spinner Dolphins

Comment 10: Several commenters suggested that we should take
different actions instead of an approach rule, such as working directly
with experts in dolphin communication, instituting a 2-year moratorium
on intentional dolphin interactions at essential daytime resting
habitat, or monitoring the change in spinner dolphin behavior/
population health.
Response: We agree that additional research is necessary to better
understand spinner dolphin ecology. However, we believe that research
is a necessary complement to, and not a substitute for, regulatory
measures to reduce the impact of take on spinner dolphins. While we
appreciate that there may be other actions that could be taken to
address take of spinner dolphins in their resting habitat, we note that
voluntary measures have been tried in the past and, while helpful, they
have not been sufficient. We intend to implement this rule at this time
and monitor its impact.
Comment 11: Several commenters suggested that monitoring the
effectiveness of the regulation would be an important step to assess
compliance with the rule. One commenter suggested that we conduct a
review of the rule's effectiveness after 2 years, requesting feedback
from local stakeholders. Other commenters requested that we utilize
``citizen scientists'' as part of spinner dolphin monitoring.
Response: We agree that monitoring the effectiveness of the final
rule would be an important step to assess compliance with the rule.
Citizen science, in the form of volunteer data collectors, may be one
aspect of a multi-pronged approach to gathering the data necessary to
determine such an impact. This multi-pronged approach could include
data collection by volunteer observers, spinner dolphin researchers
(through passive acoustic monitoring equipment), and NOAA OLE and the
State of Hawai`i's Department of Conservation and Resource Enforcement
(DOCARE) officials.
Comment 12: One commenter states that we did not consider a study
that shows there are no harmful effects when dolphins remain vigilant
for extended periods of time. The research article cited is Branstetter
et al. (2012), and entitled, ``Dolphins Can Maintain Vigilant Behavior
through Echolocation for 15 Days without Interruption or Cognitive
Impairment.''
Response: The research to which the commenter refers was conducted
on captive bottlenose dolphins and looked at the impacts to their
cognitive abilities, in the form of their ability to detect objects via
echolocation, after 5 days and 15 days of constant engagement by
researchers. The researchers found that there was no detectable loss of
the dolphins' cognitive ability after maintaining a vigilant state for
these extended time periods. Their results seemed to demonstrate that
bottlenose dolphins can continuously monitor their environment and
maintain long-term vigilant behavior through echolocation. The comment
suggests that this research provides evidence that Hawaiian spinner
dolphins do not suffer harm from disturbance by human interactions due
to their ability to sleep with one half of their brain while the other
half remains vigilant. However, there are several points that would
argue against this assertion. First, captive bottlenose dolphins have
already been habituated to human disturbance by their very state of
captivity, and may have even been subjected to other research projects
over the course of their captive lives. Captive dolphins also do not
need to forage for food, detect predators, or socialize with others in
the pods in order to survive. Captive bottlenose dolphins cannot,
therefore, be readily compared to wild dolphins. Second, bottlenose
dolphins are a much more robust animal than are spinner dolphins, and
they have a much more fluid life history strategy. They are adaptable
to being held in captivity, whereas spinner dolphins have never been
successfully held in captivity. Bottlenose dolphins are larger than
spinner dolphins, both in size and weight, and forage opportunistically
throughout the day on a large variety of prey species. Spinner dolphins
forage only on the mesopelagic species that are hunted at night and are
therefore only able to rest and nurture their young during the day,
making them more susceptible to the impacts of human disturbance on
their essential daytime behaviors. Finally, this study looked only at
cognitive impacts to the dolphins, and did not consider physical
impacts to their well-being and fitness from maintaining a constant
state of vigilance.
Comment 13: Many commenters suggested that NMFS should focus
rulemaking efforts on other factors that they perceive as having a
greater impact on the health of Hawaiian spinner dolphins than close
approach from humans. These commenters identified overfishing of prey
species, pollution (e.g., storm water runoff, trash, and trace
chemicals from sunken, decommissioned military ships), captive dolphin
swim-with programs and hotel exhibits (an activity that they suggested
NMFS should ban), and acoustic impacts from military operations (e.g.,
Exercise Rim of the Pacific (RIMPAC) and military use of sonar
equipment). Further, one commenter suggested that new regulations
should not be implemented until NMFS understands how each of the above-
mentioned factors impacts spinner population health.
Response: Commenters are correct in noting that many factors can
negatively affect the health of Hawaiian spinner dolphins. There are a
variety of external factors or actions that have affected, may be
affecting, or may have future effects on Hawaiian spinner dolphins.
Many of these external factors are beyond the scope of this rulemaking,
which is addressing close approach by humans as a specific threat to
Hawaiian spinner dolphin health. Additional information about the
effects of these external factors on Hawaiian spinner

[[Page 53828]]

dolphin health is included in section 4.5.1.1 of the FEIS (``Cumulative
Effects of External Factors'') and some are discussed below.
Regarding commenter concerns about overfishing of spinner dolphin
prey species, we work closely with the Western Pacific Regional Fishery
Management Council to reduce impacts of Federal fisheries to marine
mammals through regulations and management actions, and work with the
state and other fishery councils where our concerns overlap with
nearshore fisheries.
Regarding exposure to marine debris or trace chemicals from
decommissioned ships, a variety of existing Federal laws and
regulations regulate or prohibit the discharge of oil, garbage, waste,
plastics, and hazardous substances into ocean waters, including the
Clean Water Act as amended by the Oil Pollution Act of 1990; MARPOL
1973/1978; and the Marine Protection, Research, and Sanctuaries Act.
These laws have strict civil and criminal penalties for violations.
Regarding concerns about human interaction with dolphins in
captivity, this rule only applies to wild Hawaiian spinner dolphins,
not dolphins in captivity. NMFS issues permits under the MMPA for the
taking or the importation of marine mammals for the purposes of public
display (16 U.S.C. 1374 Sec. 104(c)), the transfer of ``releasable''
rehabilitated marine mammals, and maintains the National Inventory of
Marine Mammals, which tracks acquisitions, dispositions, and transfers/
transports of marine mammals.
Regarding the use of sonar in the marine environment and its impact
on spinner dolphins, section 101(a)(5) of the MMPA allows for
incidental take for certain limited activities. Such authorizations for
incidental take are subject to a public process that provides for
notice and comment for each proposed activity, and accordingly, are
beyond the scope of this rulemaking.
Regardless of the other factors potentially affecting Hawaiian
spinner dolphins, peer-reviewed scientific studies cited in the
proposed rule and again in this final rule have shown that close
approach by humans may result in negative impacts on Hawaiian spinner
dolphin health, and multiple studies have shown an increase in the
intensity of human interactions with dolphins in recent years. While we
recognize that close approach by humans is not the only threat to
dolphin health, this rule seeks to mitigate this real and increasing
threat by reducing the impact of human viewing and interaction on
resident stocks.
Comment 14: One commenter stated that the information published in
the DEIS does not comply with the Office of Management and Budget (OMB)
requirements under the Information Quality Act (a.k.a. Data Quality
Act) by not adequately presenting a balance of best and worst case
scenarios, a lack of bias and exhibited transparency, and by not
adequately fulfilling the public notice requirements. Additionally, the
commenter provided additional scientific articles that they believe
need to be included in the rule's environmental impact analysis.
Response: Under NOAA's Information Quality Guidelines, which
fulfill OMB requirements under the Information Quality Act (IQA), the
proposed rule does not qualify as Influential Scientific Information
(scientific information the agency reasonably can determine will have
or does have a clear and substantial impact on important public
policies or private sector decisions) or Highly Influential Scientific
Assessment (influential scientific information that the agency or the
Administrator of the Office of Information and Regulatory Affairs in
the Office of Management and Budget determines to be a scientific
assessment that: (i) Could have a potential impact of more than $500
million in any year, or (ii) is novel, controversial, or precedent-
setting or has significant interagency interest).
With regard to the science supporting the rule, we relied on
published reports and studies, most of which have been peer reviewed
prior to publication under independent processes, dependent upon the
terms of the publication. We have reviewed the articles referenced by
the commenter for their applicability to this final rule and address
them here.
The article cited as Christiansen and Lusseau (2015) describes
studies that were conducted to determine if disturbance corresponded to
changes in female reproductive success. The researchers developed a
mechanistic model for minke whales (Balaenoptera acutorostrata) to
measure the effects of behavioral disturbances caused by whale watching
activities on fetal growth. The model illustrates the pathway through
which behaviorally mediated effects of anthropogenic disturbance might
influence female reproductive success. The results indicated that,
although the behavioral disruptions caused by whale watching
interactions were substantial, the cumulative exposure of individuals
to whale watching boats was low, resulting in an effect on fetal growth
no different from natural variability. For the minke whales studied in
this research, the whale watching took place at their feeding grounds,
and even the highest exposure to whale watching vessels amounted to a
total of only 427.5 minutes during the feeding season. The authors
concluded that female minke whales would have to spend a large
proportion of their day with whale watching boats during each day of
the feeding season for them to start having a biologically important
effect on fetal growth. The results of this research are not directly
applicable to the issue being addressed by this final rule because
Hawaiian spinner dolphins are exposed to much higher levels of
disturbance in their essential daytime habitats. In fact, the authors
of the study conclude that if these minke whales were exposed to boats
throughout the day (i.e., similar to levels experienced by spinner
dolphins in Hawai`i), they would experience a net energy loss
sufficient enough to have significant effects on fetal growth. The
cumulative exposure of spinner dolphins to human disturbance is
occurring on a daily or near-daily basis throughout the year, and also
occurs during times and at places that they would normally be resting
and nurturing their young, not during feeding times. These essential
daytime behaviors are needed to replenish and restore their energy and
provide the nourishment needed for calves to reach maturity.
The research cited as Hartel and Torres (2015) studied exclusion
zones designed to protect bottlenose dolphin habitats. The research
found that, over time, the bottlenose dolphins did not use the
designated exclusion zones, and that they were therefore ineffective in
providing habitat protection. While this research may seem to be
applicable, we note that there are significant differences in the
behaviors and life history strategies of bottlenose and spinner
dolphins. Spinner dolphins have a very rigid, predictable behavior
pattern of hunting at night and resting and nurturing their young
during the day. They generally return from their offshore feeding
grounds to the same protected bays and shallow, sandy bottomed habitats
and are found there with regularity. This is one of the main reasons
why the swim-with-dolphin industry has been so successful in Hawai`i,
as the tour vessels are consistently able to locate the dolphins at the
same sites on a daily basis. Researchers believe Hawaiian spinner
dolphins choose these areas because of their proximity to their
offshore feeding grounds and the protection they afford from predators,
providing a safe place to rest and nurture their young. In contrast,

[[Page 53829]]

bottlenose dolphins are much more fluid in their behaviors, feeding and
resting throughout the day and foraging over much wider areas. They do
not exhibit the same site fidelity to a particular area that spinner
dolphins do.
The research cited as New et al. (2013) explored the response by
bottlenose dolphins to a scenario in which vessel traffic increased
from 70 to 470 vessels a year in response to the construction of a
proposed offshore renewables' facility. Despite the more than six-fold
increase in vessel traffic, the dolphins' behavioral time budget,
spatial distribution, motivations, and social structure remained
unchanged. They found that the dolphins are able to compensate for
their immediate behavioral response to disturbances by commercial
vessels. The research showed that if the increased commercial vessel
traffic is the only escalation in anthropogenic activity, then the
dolphins' response to disturbance is not biologically significant
because the dolphins' health is unaffected, leaving the vital rates and
population dynamics unchanged. The authors note that behavioral change
should not automatically be correlated with biological significance
when assessing the conservation and management needs of species of
interest. Again, this study centered on the responses of bottlenose
dolphins to increased vessel traffic. For the same reasons stated
above, the differences between bottlenose and spinner dolphins needs to
be taken into consideration when looking at the results of this study.
Unlike bottlenose dolphins, spinner dolphins have very rigid and stable
behavioral patterns of daily rest and socialization and nighttime
foraging, and are therefore much more susceptible to disturbance at
their essential daytime behaviors.
Comment 15: Two commenters expressed the need for NMFS to address
climate change in the environmental analysis.
Response: We provided a complete analysis of climate change impacts
associated with this rulemaking in section 4.5.5 of the FEIS (``Impacts
of Climate Change''). In this section, we detailed the cumulative
effects that climate change may have on Hawaiian spinner dolphin
health, including impacts on abundance and distribution of prey
species, impacts of sea level rise, and impacts associated with rising
ocean temperatures (see section 4.5.5.1 of the FEIS). Additionally, we
considered and evaluated impacts that the proposed alternatives could
have on climate change (see section 4.5.5.2 of the FEIS).
Comment 16: We received comments that questioned the credibility of
some of the research used to support the proposed rule and the analyses
of alternatives in the DEIS. Specifically, commenters noted that the
SAPPHIRE Project received partial funding from Dolphin Quest, which
profits from swim-with captive dolphin programs. Commenters suggested
that this presents a conflict of interest, as findings that support
prohibitions for approaching wild dolphins could increase support for
Dolphin Quest's business.
Response: To clarify, the research effort to which the commenters
refer (which resulted in several publications, see Background above)
received a portion (less than 25 percent) of their funding from Dolphin
Quest. Our decisions associated with this rulemaking do not rest solely
on the studies from the SAPPHIRE project. Rather we relied on the many
scientific publications, including multiple studies in Hawai`i, that
indicate that intense human pressure can have negative effects on local
wild spinner dolphin populations. A comprehensive list of journal
articles and information sources are referenced in the Final EIS.
Researchers in many fields rely on funding from various sources to
conduct their work, including government grants, NGOs, and private
sources, and on that basis alone we do not assume that the acceptance
of funds from specific entities would compromise the research being
conducted. The academic papers in question were peer-reviewed, which is
a process by which research is checked by a group of experts in the
same field to ensure that the scholarly work meets necessary standards
before it is published in an academic journal. Tyne's papers were peer
reviewed and published in the academic journals Royal Society Open
Science, Biological Conservation, and the Journal of Applied Ecology.
The abundance information was reviewed closely by PIFSC researchers and
currently provides the most rigorous estimate for our local spinner
dolphin populations. Tyne et al.'s work indicating the significance of
resting habitat in supporting spinner dolphin resting behavior
confirmed ideas presented by earlier works by Ken Norris in the 1990s.
Additionally, Tyne et al.'s work questioning the quality of rest that
this population receives echoes concerns expressed by other
researchers, including Courbis and Timmel (2009), Heenehan et al. (2015
and 2016), Forrest (2001), and Danil et al. (2005). As a result, we
determined that these studies by Tyne et al. are credible and unbiased,
and included them in our analysis of the best available science.

Information on Responsible Viewing of Marine Mammals

Comment 17: Several commenters expressed concern that limiting
interaction with spinner dolphins may displace the impacts of human
interaction onto other wild marine mammals, or onto captive bottlenose
dolphins. Additionally, commenters specifically suggested that to avoid
this displaced impact, NMFS should expand the scope of this rule to
protect all marine mammals in Hawai`i, including dolphins in captivity.
Response: All marine mammals are protected from take by the MMPA,
defined as ``to harass, hunt, capture, or kill or attempt to harass,
hunt, capture, or kill any marine mammal'' (16 U.S.C. 1362). While this
regulation implements necessary and appropriate measures to reduce take
in the form of harassment of spinner dolphins, other wild marine
mammals are still protected from take (including harassment) under the
MMPA. Spinner dolphins are unique in that they spend time resting in
areas close to shore, and therefore are easily accessible to human
users of the nearshore environment. Their predictable daytime behavior
has made it possible for the swim-with-wild-dolphin industry to
develop. It is difficult to determine to what degree operators may
switch to ``swim-with'' activities with other marine mammals.
With regard to other marine mammals in Hawaiian waters, we note
that we have approach distance regulations for some other species of
marine mammals, such as humpback whales in Hawai`i (50 CFR 216.19).
However, each rule is based on the ecology of the specific animal, as
well as the best available scientific information on the nature of the
threats.
This rule implements additional protections to prevent harassment
of spinner dolphins in the wild. Extending these protections to captive
dolphins is beyond the scope of this rulemaking. Please see the
response to comment 13 for additional information on dolphins in
captivity.

Additional Information on Spinner Dolphin Behaviors

Comment 18: Many commenters suggest that Hawaiian spinner dolphins
choose to interact with human users and vessels. Additionally,
commenters suggest that if dolphins did not want to interact with human
users and vessels, the dolphins have the ability to swim away. As a
result, some commenters assert that people can't swim with

[[Page 53830]]

dolphins; rather, it is the dolphins who swim with people, because the
dolphins could swim away at any time.
Response: We recognize that dolphins can appear curious and may
approach humans in the water. Indeed, there was an exception in the
proposed rule, which remains in the final rule, that allows humans to
be within 50 yards (45.7 m) of a dolphin if the dolphin approaches
them, provided that they do not purposefully place themselves in the
path of oncoming dolphins, that they make no effort to engage or pursue
the animal, and that they take immediate steps to move away from the
animal. Requiring the swimmer to withdraw reduces the likelihood that
exposure to human activities will result in harassment. There is ample
evidence that humans often approach dolphins in their daytime resting
areas, and this may have negative biological impacts on spinner
dolphins. As discussed in the Background, Hawaiian spinner dolphins
experience high frequency and intensity of disturbance at essential
daytime habitats. Some dolphins may stay in these habitats even when
people are present, swimming in relatively close proximity to people,
because these areas provide habitat essential for resting, recovering
from nighttime feeding, and protection from predators. Leaving these
sites carries increased risk of predation and may move dolphins further
away from offshore feeding areas.
While dolphins can indeed swim away from and faster than humans,
having to do so interrupts their rest, keeps them in a state of
vigilance, and forces the dolphins to expend energy to increase their
swimming speed and/or change direction. This increase in their
energetic expenditures for purposes of avoidance could lead to
decreased energy needed for other important behaviors, such as foraging
and nurturing their young. Over the long term, this could affect the
fitness of individual dolphins, and their ability to forage as a group.
Further, their ability to swim away is limited by the fact that
avoiding humans or leaving their preferred resting habitat altogether
can lead to a greater risk of predation, and may involve greater
energetic demands because they may need to travel farther distances to
reach their feeding grounds. Finally, peer reviewed studies on Hawai`i
Island suggest that dolphins are unlikely to rest outside of their
daytime essential habitat in resting bays (Tyne et al. 2015; Lammers
2004; Norris et al. 1994).
Comment 19: Many commenters argued that NMFS fails to understand
the consciousness of dolphins and that NMFS perceives a problem with
humans swimming with dolphins where none exists. Additionally, one
commenter suggested that humans swimming with dolphins is important to
both species, while another commenter argued that those who attend
spiritual retreats to swim with dolphins attest that the experience is
life-changing.
Response: As mentioned in the Background section, we believe that
safe, responsible viewing of spinner dolphins can provide benefits to
species awareness and conservation. However, there is a substantial and
growing body of scientific evidence documenting the negative effects of
dolphin-directed activities on spinner dolphins, especially activities
that involve close approaches by humans, regardless of the intent of
the humans. There is no scientific evidence to suggest that Hawaiian
spinner dolphins receive a long-term health benefit from prolonged,
close interactions with humans. Peer-reviewed scientific literature
documents dolphin-directed human activity as causing disturbance to
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 vigilance). However,
discernible responses include aerial displays, tail-slapping, or other
visible behavior changes when closely approached by vessels and
swimmers (Forest 2001, Courbis and Timmel 2008); avoidance behaviors,
including increased swimming speed, directional changes, 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 also been documented in the form of changes to spinner
dolphins' behavior patterns in essential daytime habitats, including
the amount of time spent within resting habitat, distribution within
the habitat, and changes to patterns associated with aerial behaviors
(Courbis 2004, 2007; Timmel et al. 2008; [Ouml]stman-Lind 2007; Danil
et al. 2005; Forest 2001).
Swimming with Hawaiian spinner dolphins has become a popular
activity in Hawai`i, because Hawaiian spinner dolphins are charismatic
animals, are easily accessible to humans while in their resting
habitat. However, as stated in our response to Comment 13, spinner
dolphins that interact with swimmers incur an energetic cost, and the
time for restorative or fitness-enhancing behaviors, particularly rest,
is lost due to these disruptions. Additionally, several spinner dolphin
studies provide evidence of chronic disturbance to natural behavioral
patterns that could potentially cause biologically significant impacts,
see Background for discussion on chronic disturbance. People are often
unaware that changes in dolphin behavior take away from daytime
fitness-promoting behaviors with other dolphins.
The purpose of this regulation is to prevent encounters that result
in disturbance to and harassment of Hawaiian spinner dolphins. This
rule implements regulations for the conservation purposes of MMPA,
including necessary and appropriate regulations that protect spinner
dolphins from harassment. As described in the preamble, human
encounters with Hawaiian spinner dolphins may have long-term adverse
effects that may not be immediately apparent to the observer. We
considered other distances for swim-with and approach regulations,
including 100 and 150 yards (91.4 or 137.1 m), as well as no swim-with
and approach measures. We do not believe that the status quo provides
adequate safeguards for these marine mammals. One of the considerations
in choosing a 50 yard (45.7 m) approach rule, as opposed to 100 or 150
yards (91.4 or 137.1 m), was that it was the minimum appropriate
distance to prevent disturbance to them, while still allowing people to
view the dolphins. At this time, we believe that a 50 yard (45.7 m)
approach buffer provides the least restrictive means for accomplishing
the important conservation purposes of the approach regulation, while
still accounting for the interests of the observing public.

Other Human Activities Affected by the Proposed Rule That Were Not
Discussed

Comment 20: Many commenters expressed concern that this rule would
have a large impact on the local economy. Some commenters representing
the tour industry specifically indicated that they anticipate this rule
to have a large impact on their businesses. Additionally, 17 commenters
argued that the data used in our economic impact analysis, presented as
part of the DEIS, was insufficient, out-of-date, and needed to include
additional data in order to analyze the potential economic impact of
this rule's implementation. One commenter specifically suggested a need
for more data on the tour industry on West O'ahu.
Response: In response to concerns raised that the economic data
used for

[[Page 53831]]

the analysis in the DEIS is outdated, we have updated the economic
analysis and conducted a Regulatory Impact Review/Regulatory Impact
Assessment in accordance with Executive Order 12866 and the Regulatory
Flexibility Act, and incorporate this assessment and the Final
Regulatory Flexibility Analysis into the final EIS as Chapter 5 for the
final rule. While we have supplemented the 2008 economic analysis and
2016 RIR/IFRA, the new economic information does not materially alter
earlier findings in the proposed rule about the need for regulation and
the impact of the regulation on small entities. There has been an
approximately 6-fold increase in the number of tours and spiritual
retreats offering swim-with-wild-dolphin experiences, as well as a
corresponding increase in the gross revenues generated by these
businesses, in the 10-year span between the original economic data
report and the updated report. This increased economic activity also
represents an increase in human pressures on spinner dolphins. The
expected economic impact of the final rule on dolphin-directed business
activity is similar to that of the proposed rule. It is possible that
some tour operators will experience some loss of revenues due to
differences in the amounts charged for a swim-with-dolphin experience
versus a general marine tour/wildlife viewing experience. Indeed a
commenter stated that they had experienced declines in their dolphin
tour business after shifting to a 50 yard (45.7 m) viewing distance.
However, tour operators in Hawai`i that voluntarily follow Dolphin
SMART safe viewing guidelines that use a 50 yard (45.7 m) viewing
distance from spinner dolphins have stayed in business and remained
competitive for nearly a decade, and the final rule will implement even
handed requirements for all operators, mitigating lower revenues
resulting from competition with swim-with-dolphin operators.
Restrictions resulting from the COVID pandemic have significantly
impacted the tourism industry in Hawaii, and COVID restrictions and the
overall decline in tourism have significantly curtailed wild dolphin
tours. Nevertheless, tourism has rebounded over the last year, with
791,053 visitors in June 2021 (https://www.hawaiitourismauthority.org/media/7582/june-2021-visitor-statistics-press-release.pdf). As
conditions continue to improve, NMFS anticipates that dolphin-directed
activities will resume at or near pre-pandemic levels.
Comment 21: One commenter indicated that they receive ``life
force'' from dolphins and whales, and that this regulation would
violate the commenter's constitutional rights.
Response: As discussed in the response to Comment 19, the purpose
of this regulation is to prevent encounters that result in disturbance
to and harassment of Hawaiian spinner dolphins. This rule implements
regulations for the conservation purposes of MMPA, including necessary
and appropriate regulations that protect spinner dolphins from
harassment. As described in the preamble, human encounters with
Hawaiian spinner dolphins may have long-term adverse effects that may
not be immediately apparent to the observer. We considered other
distances for swim-with and approach regulations, including 100 and 150
yards (91.4 or 137.1 m), as well as no swim-with and approach measures.
We do not believe that the status quo provides adequate safeguards for
these marine mammals. One of the considerations in choosing a 50 yard
(45.7 m) approach rule, as opposed to 100 or 150 yards (91.4 or 137.1
m), was that it was the minimum appropriate distance to prevent
disturbance to them, while still allowing people to view the dolphins.
At this time, we believe that a 50 yard (45.7 m) approach buffer
provides the least restrictive means for accomplishing the important
conservation purposes of the approach regulation, while still
accounting for the interests of the observing public.
Comment 22: One commenter noted that spotted dolphins (Stenella
attenuata) often interact with fishing vessels for long periods of time
and have intensive feeding requirements similar to those of spinner
dolphins, but the need for spotted dolphins to have uninterrupted sleep
is not a concern to NMFS. Additionally, this commenter notes that
bottlenose dolphins have long been harassed by fishermen off the Kona
coast for stealing live bait from marlin and tuna fishermen and market
fish from bottom fishermen, yet NMFS has not established protections
for bottlenose dolphins.
Response: As described in several comment responses above, as well
as the SUPPLEMENTARY INFORMATION section of the Final Rule, wild marine
mammal harassment is prohibited by the MMPA. This includes Level A
harassment (any act of pursuit, torment, or annoyance which has the
potential to injure a marine mammal) and Level B harassment (any act
that 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).
As a result, harassment of any wild dolphin species, including spotted
dolphins and bottlenose dolphins, is illegal under the MMPA. While NMFS
is concerned about spotted and bottlenose dolphins, this rule focused
on spinner dolphins because their unique habitat preferences and
resting behaviors make them particularly vulnerable to disturbance.
More detail about spinner dolphin vulnerability to disturbance is
available in the response to Comment 24, as well as in section 3.1.4 of
the FEIS ``Ecology and Behavior.''

The Temporal and Geographic Scope (i.e., Two nmi From Shore) of the
Approach Regulation

Comment 23: Multiple commenters suggested that we should implement
a rule that extends 10 nmi from shore to encompass the entire range of
the MHI-associated resident stocks. Some commenters suggested that
people may seek encounters with the dolphins outside of two nmi,
leaving the dolphins unprotected outside of this boundary.
Response: Extending the effective area of the regulation out to 10
nmi from shore was considered in the DEIS and FEIS (see section 2.1.3
in the DEIS and FEIS). As stated in the rationale for the rule and in
the EIS, these regulatory measures are intended to prevent take of
Hawaiian spinner dolphins from occurring in marine areas where viewing
pressures are most prevalent. We have no information to suggest that
these stocks of Hawaiian spinner dolphins face any kind of regular
exposure to wildlife viewing activities that cause take outside of two
nmi from shore. Unlike nearshore areas where spinner dolphins
predictably use essential daytime habitats, the locations where spinner
dolphins might be found beyond two nmi is not predictable and we do not
anticipate that encounters with dolphins outside of two nmi will become
common after the rule is finalized. MMPA take prohibitions will
continue to apply in the U.S. exclusive economic zone (EEZ) and high
seas where these regulations do not apply. To encompass the range of
dolphin-directed activities that are likely to result in take, we
focused on where people are most likely to encounter Hawaiian spinner
dolphin groups, i.e., where dolphins are known to occur during the day
when they are engaged in nearshore resting and socializing activities.
We reviewed 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

[[Page 53832]]

from various members of the Pacific Islands Photo Identification
Network (PIPIN) to determine that the 2 nmi boundary sufficiently
covered the dolphins' daytime habitat use. Because almost all viewing
and interaction pressures occur during the day within two nmi from
shore and in the designated waters bounded by L[amacr]na`i, Maui, and
Kaho'olawe, expanding the scope to include the resident stock's entire
range would provide negligible additional protection from take by
approach within 50 yards (45.7 m).
Comment 24: The State of Hawai`i DLNR commented that it supports
the proposed rule, but believes it should be expanded to apply to the
entire U.S. EEZ within 200 nmi from shore, to simplify compliance for
users and streamline enforcement efforts.
Response: As described above in our response to Comment 23, we
considered the geographic scope of the rulemaking in our EIS, including
applying it to the entire EEZ, and determined that a 2nm boundary
provided the protections from daytime disturbance needed for spinner
dolphins. These proposed regulatory measures are intended to prevent
take of Hawaiian spinner dolphins from occurring in areas where viewing
pressures are most prevalent. We therefore felt it was unnecessary to
extend the reach of the regulation to areas where take is less likely
to occur. Further, keeping the boundary to two nmi allows enforcement
efforts to be concentrated within the two nmi boundary rather than
spread across a much larger area, thereby increasing the effectiveness
of these efforts.
Comment 25: A commenter suggested that the regulation should be
applicable to all dolphin species and all U.S. citizens or nationals
anywhere in the world (and also advocated for a 100 yard approach
rule).
Response: The purpose of this rule is to address the increase in
human pressures on spinner dolphins in coastal waters around the state
of Hawaii. A no-approach regulation with national application is beyond
the scope of this rule. Additionally, swim-with tours have not been
identified as a major threat for other dolphin species in the areas
surrounding MHI at this time. While this rule does not apply to other
dolphin species, other species may benefit as public ocean users become
aware of the potential impacts of close approach and would keep their
distance from all wildlife.
As described in the responses to Comment 23 and Comment 24, we do
not find, at this time, that the enhanced protections in this rule are
necessary seaward of two nmi off the Hawaiian islands, or in other
regions of the United States. The MMPA's general moratorium on the
taking of marine mammals, which applies in waters under U.S.
jurisdiction as well as to persons and vessels subject to U.S.
jurisdiction on the high-seas, continues to protect dolphins that may
be found outside the boundaries of this rule. With regard to the
specific comment that the regulation should include a 100 yard approach
rule, see our response to Comment 9.
Comment 26: Many commenters suggested that the geographic action
area for the proposed rule should be limited to one or two islands,
rather than all waters within two nmi of each of the MHI and in the
designated waters bounded by the islands of L[amacr]na`i, Maui, and
Kaho`olawe. Specifically, commenters noted that the problem of spinner
dolphin harassment from close approach by humans is greater on Hawai`i
Island and O`ahu than it is on islands like Maui and Kaua`i. As such,
the geographic action area for the proposed rule establishing
protections for spinner dolphins should be limited to areas with the
largest number of tour operators and human users. Additionally, several
commenters argued that, because many of the supporting studies cited by
NMFS in the proposed rule and DEIS conducted their research along the
Kona coast of Hawai`i Island, the geographic action area of the
proposed rule should only include waters surrounding Hawai`i Island.
These commenters argue that the DEIS gives too much weight to these
studies, which cover a small geographic area (relative to the state as
a whole), and therefore the rule does not adequately account for the
behavioral or social differences between island-specific populations of
spinner dolphins. One commenter suggested that the geographic action
area of the proposed rule be limited to the range of one or more of the
three island-associated stocks of spinner dolphins in the MHI. The
commenter did not suggest a specific stock for protection.
Response: The commenters are correct that the islands of O`ahu and
Hawai`i have a greater number of dolphin-directed tour companies,
spiritual retreats, and individuals swimming to the dolphins from shore
due to factors such as easily accessible essential daytime habitats.
However, Hawaiian spinner dolphins utilize sandy, protected bays and
nearshore areas for resting and socializing across the state. While the
largest number of human users are concentrated on one or two islands,
close approach by humans occurs statewide (Sepez, 2006; see section 1.6
of the FEIS, ``Description and Scope of the Proposed Action'') and
affects all of the island-associated spinner stocks. Limiting this rule
to only one or two islands or to the geographic extent of an island-
associated stock could result in displacement of dolphin-directed human
activity to other areas of the state where Hawaiian spinner dolphins
are present, thus undermining the protections established in this
regulation.
Regarding the concern by some commenters that spinner dolphin data
informing this rule was only collected on Hawai`i Island, this rule was
developed through a literature review of available data for Hawaiian
spinner dolphins throughout the state. Many recent research efforts
focused on bays on Hawai`i Island, as these bays are often used as
daytime resting habitat for spinner dolphins and are a place where
researchers can reliably study spinner dolphin behavior. These
locations include H[omacr]naunau Bay, Kealakekua Bay, Makako Bay, and
Kauhak[omacr] Bay, which were the sites for more recent studies on the
impacts of human interaction on dolphin population health, such as the
SAPPHIRE studies. While these studies focused on a limited geography,
the findings regarding spinner dolphin behavior changes in the presence
of human users are representative of wider scenarios where humans are
in prolonged contact with resting Hawaiian spinner dolphins.
Additionally, while the SAPPHIRE studies researched Hawaiian spinner
dolphins on Hawai`i Island, research has been conducted on O`ahu, Maui,
L[amacr]na`i, Kaho`olawe, Moloka`i, and Kaua`i, resulting in peer-
reviewed journal articles that were consulted when developing this rule
and FEIS (e.g., Norris and Dohl 1980; Benoit-Bird and Au 2003; Danil et
al. 2005; Hill et al. 2005; Lammers et al. 2000, 2001, 2003, 2004,
2006; Mobley et al. 2000, and Wiener 2016). In short, we consulted
studies conducted across the state, and, because close approach of
Hawaiian spinner dolphins by humans is occurring statewide, we
determined that the geographic extent of the rule should be statewide
as well.
Comment 27: Multiple commenters submitted ideas for alternative
management considerations with different combinations of geographic
ranges, approach distances, and enforcement times. For example, one
commenter, citing O`ahu-based studies done by Lammers and Danil,
suggested a 100 yard approach regulation on O`ahu from 11AM to 6PM. The
commenter stated that 100 yards (91.4 m) is easier to judge and more

[[Page 53833]]

enforceable than 50 yards (45.7 m), and suggested that the regulation
be O`ahu-specific given habitat and behavioral differences between
O`ahu spinner dolphins and Hawai`i Island spinner dolphins,
specifically that they often rest during the midday and early afternoon
periods.
Response: We addressed aspects of this alternative suggestion in
multiple comment responses. As stated in the response to Comment 9, we
determined that a 100 yard (91.4 m) approach distance would decrease a
dolphin viewer's ability to see the animals without visual aids, and is
inconsistent with our current wildlife viewing guidelines. We
determined that an approach distance of 50 yards (45.7 m) would provide
increased protection for the animals by reducing harassment, while
still allowing people to observe spinner dolphins. Regarding an O`ahu-
specific regulation, we would like to direct the commenter to our
response to Comment 26, in which we address comments to limit the
regulation to certain areas. Limiting the swim-with and approach
regulation to O`ahu only would not provide protections to spinner
dolphins in other areas of the MHI where disturbance at daytime
essential habitats is also occurring, undermining the protections
established in this regulation.

Whether Time-Area Closures are Necessary To Address the Intensity of
Hawaiian Spinner Dolphin-Directed Activities in Some Areas

Comment 28: We received comments that were opposed to the
implementation of time-area closures. These commenters felt that
closures were either unnecessary to achieve the desired protections
because the proposed approach regulation would provide adequate
protection, or overly restrictive to the public because they could
restrict shore access rights or use of waters in Hawai`i. The State of
Hawai`i DLNR provided comments to the proposed rule stating that they
did not support time-area closures because they felt that an approach
rule best addresses the threat posed by dolphin-directed activities
across the extent of their range.
Response: Although time-area closures provide members of the public
with precise boundaries around which they may readily tailor their
conduct, we recognize that such closures can also carry undesired
costs, such as imposing a burden on the public when spinner dolphins
are not present. Accordingly, and as we explained in the proposed rule,
we are not including time-area closures in this final rule. However,
based on consideration of public comments and revised input from the
State of Hawaii, NMFS has reconsidered its prior position and is
publishing a separate proposed rule to implement time-area closures.
Comment 29: Researchers suggested looking at the time-area closures
in Samadai Reef, Egypt as an example of what has been proven to be
effective in protecting other dolphin species.
Response: When determining whether to propose implementing time-
area closures, we considered the Samadai Reef example, in which spinner
dolphins that had abandoned the site returned to it after management
measures were put in place to prevent human entry into the core resting
area (see DEIS section 1.5.2). As noted in the response to comment 28,
NMFS has reconsidered its prior position on time-area closures and is
publishing a separate proposed rule to implement time-area closures.
Comment 30: Several commenters said an approach rule is too
difficult to enforce and time-area closures is a more appropriate
alternative. The National Park Service also commented that, while they
support the proposed rule, the data from [Ouml]stman-Lind (2009) and
other studies (Johnston et al. 2013) suggest that a larger buffer
distance or a selection of mandatory time-area closures (with the
exceptions mentioned in the DEIS) would be more beneficial to the
Hawaiian spinner dolphin population, and would likely improve
enforcement of the proposed rule
Response: Given our experience with enforcing the 100 yard (91.4 m)
humpback whale approach rule in Hawai`i, we believe that this spinner
dolphin approach rule can be successfully enforced. We also recognize
that time-area closures provide members of the public with precise
boundaries around which they may tailor their conduct and makes
enforcement of such closures straightforward. We considered this
comment and others that are supportive of time-area closures. In
addition to the swim-with and approach regulation established in this
final rule, we are proposing time-area closures in a separate
rulemaking. With regard to larger ``buffer'' distances, see our
response to Comment 9.

The Bays and Times of Day Identified for Time-Area Closures

Comment 31: One commenter suggested that the proposed boundaries of
the time-area closures be changed to cover half of the bays so that one
half of each bay could be reserved for humans to interact with the
dolphins, while the other half could be reserved as essential resting
habitat. The commenter argues that this would allow the dolphins to
choose either to swim with humans or to rest.
Response: We have considered these comments and are publishing a
separate proposed rule to implement time-area closures.
Comment 32: Many commenters supported time-area closures, but
suggested alternative closures times such as from 9:30 a.m. to 4 p.m.,
from 10 a.m. to 2 p.m., or from 11 a.m. and 6 p.m. to reduce the
impacts to other ocean users. Some commenters claim that if time-area
closures are chosen, the time should be expanded to when the dolphins
leave, as the dolphins often stay in the bays past 3 p.m.
Response: We have considered these comments and are publishing a
separate proposed rule to implement time-area closures.
Comment 33: Several members of the Ho`okena community advocated
closing Kauhak[omacr] Bay to swimming with dolphins with the aim of
restoring their akule fishery. Anecdotal observations by community
members indicate they have seen no akule in Kauhak[omacr] Bay since
1997 which coincides with the time when swimming with dolphins became
popular in their bay. In addition, a petition with over 285 names and
signatures was submitted by members of the Ho`okena community, KUPA,
and Friends of Ho`okena Beach Park voicing their support for stronger
rules to prohibit people from approaching resting Hawaiian spinner
dolphins.
Response: We recognize that Kauhak[omacr] Bay faces intense
pressure from people approaching spinner dolphins and we are working
with members of the Ho`okena community to increase outreach and
education to the public. Although restoration of the akule fishery is
outside the scope of this rule, we plan to continue working with the
community and DOCARE to address the community's concerns regarding the
disturbance of dolphins at this location. The swim-with and approach
regulation will reduce the intensity of dolphin-directed activities
within essential daytime habitats to some degree. We are proposing
time-area closures as part of a separate rulemaking, and such
regulation, combined with the swim-with and approach regulation, can be
expected to reduce the intensity of dolphin-directed activities within
the essential daytime habitat at this location. We will continue to
work with the community to address their concerns as needed.
Comment 34: Several commenters noted that La Perouse Bay banned the

[[Page 53834]]

use of kayaks in the bay in 2006. These commenters observed that the
dolphins, which used to frequent the area, no longer use that essential
daytime habitat to the same extent following the ban on kayaks. The
commenters suggest that the number of dolphins using La Perouse Bay has
decreased because kayakers are no longer using the bay, leading the
commenters to suggest that the dolphins enjoy the presence of kayaks.
Response: In 2004, the State of Hawai`i declared the `[Amacr]hihi-
K[imacr]na'u Natural Area Reserve and neighboring La Perouse Bay off
limits to commercial kayaking and other commercial operations. We
understand that the State has not banned non-commercial operations,
such as using a personally-owned kayak, within the bay.
Although NMFS is unable to determine whether the number of dolphins
using La Perouse Bay has decreased since 2006, as the commenters
suggest, we do not agree that we can attribute changes in abundance of
dolphins in certain bays to any one factor, such as the number of
kayaks. Dolphins choose their resting habitat for a number of factors,
which is described further in the response to Comment 1. Any number of
these factors can cause a change in habitat preference. Additionally,
NMFS has no reason to believe dolphins are ``attracted to'' kayaks, as
the commenter suggests, on the contrary kayaks may contribute to
harassment of dolphins.

Suggestions on Other Areas That Should Be Considered for Time-Area
Closures

Comment 35: NMFS received comments suggesting that if closures are
implemented, time-area closures should also be considered in Hulopo`e
and M[amacr]nele bays on L[amacr]na`i, Honolua Bay on Maui, and
M[amacr]kua Bay on O`ahu because these areas are also targeted by tour
operators and swimmers and, specific to M[amacr]kua Bay, because they
claim that it is a spinner dolphin nursery.
Response: In a separate rulemaking we are proposing time-area
closures based on Alternatives provided in the DEIS, FEIS, and the 2016
proposed rule. The sites we are proposing for time-area closures are
descried in the DEIS as areas reported as having a high level of
chronic human disturbance at daytime essential resting habitat. Should
we consider implementing additional time-area closures other than the 5
selected sites described in the DEIS, we will look closely at the areas
identified by the commenter, likely using a step-down process similar
to that used in the DEIS Appendix A.

Alternate Management Strategies

Comment 36: Several commenters asked why we couldn't make the Coral
Reef Alliance (CORAL) West Hawai`i Voluntary Standards (WHVS) into
enforceable regulations. The WHVS were created by the CORAL, with
stakeholder input and consensus by a wide variety of Hawai`i Island
businesses and community members, to apply to all wildlife viewing and
interactions in West Hawai`i. This includes viewing and interaction
guidelines for marine mammals, including Hawaiian spinner dolphins
(WHVS 2009). Measures under section 4.6 of the document include
educational information about prohibitions already outlined in the
MMPA, detailed boating etiquette and safety measures around marine
mammals and swimmers, and human activities to avoid when viewing and
interacting with marine mammals. In addition, section 4.7 focuses on
voluntary standards specific to spinner dolphins.
Response: In the FEIS, we considered promulgating regulations based
on the WHVS as an alternative to enhance protections for Hawaiian
spinner dolphins, but eliminated that alternative from further
consideration because these standards did not meet the primary criteria
necessary to effectively address our purpose and need, which is to
reduce the threat of take to Hawaiian spinner dolphins, including
harassment and disturbance caused by dolphin-directed activities that
are concentrated in coastal waters, and to address chronic interaction
and viewing impacts on resident stocks of Hawaiian spinner dolphins
(see section 1.1 of the FEIS). As outlined in section 2.9.5 of the
FEIS, the WHVS standards are mainly adapted for marine recreational
providers (tour operators). Therefore, some measures, such as
restricting the number of boats surrounding a pod of dolphins to no
more than three at a time, do not convert well to all user groups and
may not be easily understood by other resource users. Further, the
complexity of certain standards (e.g., no boat staying longer than 30
minutes with a pod, but boats being allowed to return to a pod for an
additional 30 minute time period after a minimum of 1 hour away from
the pod, as long as doing so does not exceed the three boat maximum)
makes them difficult to follow and enforce. We also note that, because
the measures addressed in the WHVS were narrowly focused on commercial
activities and areas on the west coast of Hawai`i Island, not all
measures would easily transfer to other areas. Finally, the WHVS do not
apply to individuals who choose to swim, kayak, or otherwise approach
the dolphins on their own apart from a commercial tour operation,
leaving the dolphins vulnerable to disturbance by a large sector of the
population in Hawai`i. The combination of these factors led to the
decision to eliminate this alternative from further analysis.
Comment 37: A number of commenters suggested that it is essential
to have a strong educational component in order for new regulations to
be effective. Additionally, many commenters suggested that regulations
would not be necessary if swimmers and vessels were educated about the
impacts of close approach of spinner dolphins by humans, advocating for
self-regulation rather than this proposed rule.
Response: We agree that conducting outreach and education with the
public and tour industry is essential to promote compliance with any
new regulation and reduce the impacts on spinner dolphins caused by
disturbance by humans. A robust education and outreach effort with
partners, including state and Federal government partners, non-profit
organizations, and researchers, will support the implementation of this
regulation. Based on the lack of consistent compliance with voluntary
measures to protect Hawaiian spinner dolphins to date (e.g., wildlife
viewing guidelines, NMFS guidelines, and the CORAL West Hawai`i
Voluntary Standards) as well as the number of people wanting to be in
proximity to the dolphins, we anticipate that relying solely upon
education and self-regulation would have limited success in reducing
the overall intensity of dolphin-directed activities in most areas.
Comment 38: Multiple commenters suggested that, in lieu of the
proposed rule, NMFS or the State of Hawai`i should institute a permit
program. In these comments, this permit program could take numerous
forms. For example, thirteen commenters suggested using a permit system
to limit the total number of human users in order to limit the impact
of close approach by humans on dolphins. One commenter suggested
establishing a permit system for operators that would require the
operators to participate in a training program on proper dolphin
viewing practices before they are allowed to operate swim-with dolphin
tours. Another suggestion was to establish a permit system that
educates swim-with dolphin tour participants on proper dolphin viewing
practices before they can participate in a guided tour. Commenters also
suggested other

[[Page 53835]]

permitting strategies, such as limiting human activity to non-motorized
vessels only, limiting the number of tour operators allowed to conduct
swim-with dolphin tours, and limiting the number of people allowed per
vessel. Finally, some of these commenters suggested that funding
generated through the permit system could be used to support research/
education efforts.
Response: We considered the alternative of licensing and permitting
of commercial tour operators and eliminated it from further analysis
because it would require a large infrastructure to administer, monitor,
and enforce. A licensing and permitting system could also introduce
equity issues between those receiving a permit and those not receiving
a permit. We also noted that such a system would not resolve the
threats from stakeholders other than tour operators (such as personal
vessels and swimmers from the shore). A uniform system that applies
more or less equally to everyone and reduces the cumulative effect of
the disturbances occurring on the spinner dolphins is preferable to a
permit system.
Comment 39: Several commenters suggested alternative solutions,
such as enforcing a limit on the number of vessels and swimmers allowed
in a bay at one time, with one additional commenter suggesting that a
limit be enforced on the number of people allowed per tour boat.
Response: Although particularly high numbers of swimmers and
vessels can be problematic, limiting the number of human users allowed
in a dolphin resting bay at any given time can still result in take if
the human users closely approach the dolphins. Therefore, we concluded
that such limitations would not adequately meet the conservation
purpose of this rule, which is to prevent take.
Comment 40: Several commenters suggested that the proposed rule was
not developed with community input or recommendations, and that NMFS
should engage community members and tour operators to hear local
concerns and to develop a new regulation. Several commenters suggested
that this could take the form of a committee of local community members
that would advise NMFS on formulating a new regulation.
Response: We recognize the importance of community and stakeholder
input when creating a regulation, and we took steps to solicit and
incorporate community input and recommendations into the rulemaking
process. The process for enhancing protections for Hawaiian spinner
dolphins from human disturbance began in 2005, when we published an
ANPR (70 FR 73426, December 12, 2005), which was followed by a Notice
of Intent to prepare an EIS for this proposed rule (71 FR 57923,
October 2, 2006). In this notice, we identified five preliminary
alternatives for public consideration and comment, and invited
information from the public on the scope of the issues that should be
addressed in a Draft EIS, the issues of concern regarding practical
considerations involved in applying the proposed regulation, and
identifying environmental and socioeconomic concerns to be addressed in
the analysis. In 2006, we also held five public scoping meetings on the
islands of Kaua`i, O`ahu, Maui, and Hawai`i, and collected 4,641 public
comments in response to the ANPR and the NOI. Comments submitted during
this process included many that focused on cultural issues (e.g.,
accommodating local culture and livelihoods, as well as the visitor
industry) and traditional Hawaiian knowledge (e.g., recommending that
researchers listen to Native Hawaiians' knowledge instead of relying on
outside research). In addition to these public scoping meetings, we
attended a forum organized by State Senator Colleen Hanabusa's office
specifically for the k[umacr]puna (elders) of the Wai`anae community to
voice their opinions. Full details regarding how we collected,
analyzed, and responded to comments on the ANPR and the notice are
available in section 1.5.3 of the FEIS.
In addition to the scoping process to develop the proposed rule, we
held six public hearings on the proposed rule in September 2016, in
which 145 attendees provided their oral testimony on the proposed rule.
These attendees included community members, native Hawaiian community
leaders, tour operators, researchers, and government officials. In
addition to the 145 testimonies, we received over 22,000 additional
comments during the public comment period. Following the public hearing
some modifications were made to the rule. See section titled Changes
from Proposed Rule in the final rule background, which highlights the
differences between the proposed rule and the final rule.
Comment 41: One commenter specifically mentioned the Wai`anae
Baseline Environmental Study and the West O`ahu Ocean Protocols as
existing examples of community efforts to address the issue of spinner
dolphin harassment, and stated that these two documents are not
referred to in the DEIS.
Response: The West O`ahu Ocean Operation Protocols and the
subsequent Wai`anae Baseline Environmental Study were developed with a
goal of reducing conflict among multiple ocean users, not reducing
spinner dolphin disturbance as a result of close human approach. These
two products stemmed from Act 6, passed by the Hawai`i State
Legislature in 2006, which directed DLNR to establish waters in West
O`ahu as an Ocean Recreation Management Area in order to ``limit the
locations, times, and types of permitted ocean recreation activities''
(DOBOR 2009). This state legislation was passed to minimize conflict
among multiple ocean users, such as between tourism industry vessels
and fishing vessels.
Although we did reference the Wai`anae Baseline Environmental Study
in the DEIS and FEIS when discussing conflicts between akule fishing
and the tourism industry when those uses overlap (DEIS section
3.4.4.1), our focus in this rule was to establish protections for
spinner dolphins from close approach under the MMPA, not to manage
interactions between two different industries.
Comment 42: Commenters suggested our consideration of a designated
swim-with area in the bays where it would be permissible to swim with
the dolphins. One commenter suggested, rather than implementing a swim-
with and approach regulation, that we consider closing two bays to
dolphin swimming for 10 years, then studying this to compare the
difference between dolphin health in the closed bays versus the open
bays. Several commenters suggested roping off half of two bays to study
whether the dolphins would choose to interact with people or not,
believing that the dolphins are not harmed by interacting with people,
but rather seek them out and enjoy it.
Response: As noted in the final rule and FEIS, the MMPA provides
limited exceptions to the prohibitions on take (e.g., scientific
research permits) and requires that people and organizations conduct
wildlife viewing in a manner that does not cause take. Because close
interactions with marine mammals are likely to result in take,
including harassment and disturbance, we cannot support, condone,
approve, or authorize attempting to swim with, pet, touch, or elicit a
reaction from dolphins. We recognize there are numerous ways to test
hypotheses and efficacy of different management strategies. However, we
have chosen the approach rule as the best way to immediately relieve
the pressure on the dolphins. We are also proposing time-area closures
in a separate rulemaking to provide

[[Page 53836]]

protections for spinner dolphins in essential daytime habitats.

Hawaiian Cultural Concerns

Comment 43: One commenter expressed concern that Native Hawaiians
practicing a traditional burial of a marine mammal could be fined under
this regulation.
Response: This regulation has no effect on traditional burials of
marine mammals. The NOAA Marine Mammal Health and Stranding Response
Program oversees and coordinates all responses to stranded marine
mammals in the United States, including traditional burial of a marine
mammal and other cultural practices. In Hawai`i, NMFS engages Hawaiian
cultural practitioners in marine mammal stranding responses whenever
possible and in compliance with the MMPA. These cultural practitioners
can help us be culturally respectful of the individual animal and the
community where the stranding occurs. In order to be in compliance with
the MMPA, all responders must be authorized as a regional stranding
network participant (in accordance with section 112(c) and section 403,
or section 109(h) of the MMPA), which gives authority to state and
local government employees to humanely take marine mammals in the
course of their official duties.
Comment 44: Some commenters expressed concern that the cultural
impact analysis in the DEIS completed for this proposed rule is
inadequate. One commenter stated that input from Ho'okena residents was
heard and considered by NMFS, but because the proposed rule is
statewide, the cultural impact analysis needs to be expanded to include
other areas in the list of proposed restricted areas. Some of these
commenters recommended that, in lieu of this proposed regulation, NMFS
work with local residents and elders to craft a new alternative.
Response: We conducted a comprehensive scoping process through
which we received feedback from concerned citizens, including members
of the native Hawaiian community, tour operators, researchers, members
of the public involved in dolphin-directed activities, and other
stakeholders from around the state, not just on Hawai`i Island. Further
detail about the public input we solicited on this regulation is
available in the response to Comment 40.
In addition to this public input process, we initiated a separate
scoping process to determine if historic properties could be affected
by any of the alternatives under consideration, as required by the
National Historic Preservation Act (NHPA). With assistance from
Hawai`i's State Historic Preservation Division, we identified and
contacted Native Hawaiian organizations, communities, and individuals,
and then held four scoping meetings in 2012 with those who expressed
interest in participating. Following these meetings, we contracted a
consultant to conduct interviews with three lineal descendants from
each of the five bays identified as potential time-area closure
locations (Kealakekua Bay, Kauhak[omacr] Bay (Ho`okena), H[omacr]naunau
Bay, Makako Bay, and La Perouse Bay), to help us identify historic
properties or practices that could be affected by the time-area
closures that were under consideration to protect Hawaiian spinner
dolphins. We incorporated the findings from the initial scoping process
in 2006, as well as the 2012 NHPA scoping process into the development
of the various alternatives in the DEIS, and we have not received any
information through the public comment period to suggest that this rule
would hinder cultural practices identified through the interviews with
lineal descendants (e.g., fishing, canoe activities, ancestral
caretaking and worship, and care of burial sites; see section 3.4.5 in
the FEIS for descriptions of activities in various bays around the
state). We have determined that this final rule to implement swim-with
and approach regulations for Hawaiian spinner dolphins has no potential
to cause effects to historic properties under section 106 of the NHPA.

Enforcement

Comment 45: We received comments requesting that this rule be
enforced upon all water users, including swimmers and all private and
commercial vessels. Conversely, we received comments requesting that
the regulation be tailored so that there would be ``no burden'' for
non-dolphin tour operators and responsible dolphin-viewing vessels,
since those vessels are not harassing the dolphins.
Response: We agree that this rule should be enforced for all water
users, both private and commercial (including non-dolphin tour
operators). As described in Comment 1 and 2, multiple scientific
studies provide evidence regarding the various and differing vessel and
swimmer impacts on the behavior of spinner dolphins and how those
impacts can create long term health impacts. Because spinner dolphins
can be affected by numerous activities on the water, this rule applies
to all water users, unless a narrow exception applies. We believe that
the 50 yard (45.7 m) limit provides an appropriate opportunity for
responsible wildlife viewing, without unnecessarily burdening the
public. Exceptions are provided in the final rule (50 CFR 216.20 (c)).
Comment 46: Several commenters expressed concern that this rule
will not be enforced, noting that DLNR has limited resources devoted to
enforcement. Several commenters suggested actions for NMFS to provide
resources for enforcement, including providing funding to DOCARE,
staffing observers in bays with lots of human activity, collecting
funding from tour vessels for enforcement in the form of a licensing
fee, and using fines levied on violators of this proposed rule to
support enforcement.
Response: Enforcement of the MMPA is accomplished via all available
means, including through land and sea patrols conducted by the NMFS
OLE, the United States Coast Guard, and DOCARE, all of whom work with
us on outreach and enforcement. NMFS OLE conducts periodic patrols,
which include areas with high amounts of human activity, and accepts
evidence of harassment submitted by citizens observing violations.
Historically, NMFS has also provided funds to DOCARE through a Joint
Enforcement Agreement to conduct enforcement activities. NMFS OLE, with
support from DOCARE, is actively pursuing violations of the MMPA and
will continue to do so. Regarding the suggestion to use fines levied on
violators of the proposed rule to support enforcement, MMPA civil fines
are currently directed into a national Asset Forfeiture Fund, which is
then used to help fund enforcement activities subject to NOAA policy.
Finally, with regard to the comment recommending collection of funding
from tour vessel operators in the form of a licensing fee, we refer the
commenter to our response to Comment 38 regarding permitting fees.
Comment 47: Several commenters suggested that NMFS should focus on
enforcing the MMPA, rather than creating a new regulation, since
Hawaiian spinner dolphins are already protected from take by the MMPA.
One commenter, noted that spinner dolphins are not threatened or
endangered under the ESA, and this regulation will set a precedent for
establishing protections for non-ESA listed species.
Response: The MMPA protects all marine mammals, whether or not
listed under the ESA, in U.S. waters and on the high seas from take,
which includes Level B harassment. This regulation further enhances
protections for spinner dolphins under the MMPA (see the

[[Page 53837]]

responses to Comment 8 and Comment 14). The commenter is correct that
the spinner dolphin is not currently listed as threatened or endangered
under the ESA; however, the MMPA protects all marine mammals,
regardless of whether they are ESA listed, and this action is taken
under authority of the MMPA to strengthen protections for spinner
dolphins from increased human pressures that have resulted in observed
disruption of behavioral patterns.

Final Rulemaking

The swim-with and approach prohibitions described in this rule are
designed to protect spinner dolphins from take, including harassment
and disturbance, caused by dolphin-directed activities, such as close
viewing and interaction. 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 are warranted because of the chronic
disturbance that is currently taking place in nearshore waters. This
regulation is limited to nearshore areas, within 2 nmi (3.7 km) from
shore of the MHI and including designated waters bounded by
L[amacr]na`i, Maui, and Kaho`olawe (see Figures 2 and 3 in section
216.20(e) and Geographic Action Area section below), where threats from
dolphin-directed activities are concentrated and where spinner dolphins
engage in essential daytime behaviors, including resting, socializing,
nurturing, and traveling. These 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. We are
finalizing this regulation pursuant to our rulemaking authority under
MMPA sections 112 (a) (16 U.S.C. 1382(a)) and 102 (16 U.S.C. 1372).

Scope and Applicability

Application to All Hawaiian Spinner Dolphins

The rule's swim-with and approach prohibitions apply to all
Hawaiian spinner dolphins found in the action area (see Geographic
Action Area section below).

Geographic Action Area

The action area for the swim-with and approach prohibitions in this
rule is limited to waters within 2 nmi (3.7 km) of each of the MHI and
in designated waters bounded by the islands of L[amacr]na`i, Maui, and
Kaho`olawe (see Figures 2 and 3 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 bounded by the
islands as follows: The rhumb line between (A1) 20[deg]32'51'' N/
156[deg]43'50'' W (Kaho`olawe) and (A2) 20[deg]42'4'' N/156[deg]55'34''
W (L[amacr]na`i); the rhumb line between (B1) 20[deg]51'1'' N/
156[deg]54'0'' W (L[amacr]na`i) and (B2) 20[deg]59'48'' N/
156[deg]42'28'' W (Maui); and the rhumb line between (C1)
20[deg]33'55'' N/156[deg]26'43'' W (Maui) and (C2) 20[deg]32'15'' N/
156[deg]29'51'' W (Kaho`olawe). 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 essential 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 regulation applies 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, snorkeling,
or free diving).

Requirements of the Rule

Swim-With and Approach Regulation

The rule prohibits people from approaching or remaining within 50
yards (45.7 m) of a spinner dolphin; swimming or attempting to swim
within 50 yards (45.7 m) of a spinner dolphin; causing a vessel,
person, or object to approach or remain within 50 yards (45.7 m) of a
spinner dolphin; and intercepting, or placing a vessel, person, or
other object in the path of a spinner dolphin so that the dolphin
approaches within 50 yards (45.7 m) of the vessel, person, or object.

Exceptions

Specific categories are exempt from the swim-with and approach
regulation, and are outlined 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 Hawaiian
spinner dolphin, provided the vessel continues normal navigation and
makes no effort to engage or pursue the animal. For purposes of this
exception, a vessel is underway if it is not at anchor, made fast to
the shore, or aground;
(3) Any vessel transiting to or from a port, harbor, or in a
restricted channel when a 50 yard (45.7 m) 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) Any vessel that is anchored or aground and is approached by a
Hawaiian spinner dolphin, provided the vessel makes no effort to engage
or pursue the animal;
(6) Activities authorized through a permit or authorization issued
by the National Marine Fisheries Service to take Hawaiian spinner
dolphins; and
(7) Federal, state, or local government vessels, aircraft,
personnel, and assets when necessary in the course of performing
official duties.
(8) Commercial fishing vessels that incidentally take spinner
dolphins during the course of commercial fishing operations, provided
such vessels operate in compliance with a valid marine mammal
authorization in accordance with MMPA Section 118(c).
The exception for vessels transiting to or from ports, harbors, or
restricted channels is necessary to allow continuation of safe
navigation when approaching spinner dolphins closer than 50 yards (45.7
m) 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 anchored and aground vessels was added in response to
public comments received on the proposed rule and is intended to
recognize that anchored vessels may not be able to avoid coming within
50 yards (45.7 m) of Hawaiian spinner dolphins if approached by the
animals. The exception for vessels, aircraft (manned or unmanned) or
persons engaged in an activity authorized through a permit or other
authorization issued by NMFS to take spinner dolphins is necessary to
ensure

[[Page 53838]]

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.
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 commercial fishing
vessels is limited to incidental take by those vessels in compliance
with the associated valid marine mammal authorization in accordance
with MMPA Section 118(c).

Rationale

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 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).
The public, through public comment submissions, brought several
recent studies to our attention that they believed should be
incorporated into environmental review process. Upon review of these
studies (Branstetter et al., 2012; Christiansen and Lusseau, 2015;
Hartel and Torres, 2015; and New et al., 2013), we determined that
these were not applicable to the issue being addressed by this
regulation. A detailed review of these studies, including why we
determined they were not applicable to this regulation, is available in
the responses to Comments 12 and 14.
This regulation is designed to address dolphin-directed activities
that result in various forms of take of Hawaiian spinner dolphins. As
described in the proposed rule, we selected 2 nmi (3.7 km) from shore
around the MHI, as well as designated waters bounded by the islands of
L[amacr]na`i, Maui, and Kaho`olawe, for the boundaries for the swim-
with and approach regulation. We are maintaining this as the boundary
for the final regulation because this range encompasses the areas where
current and best available information indicates that most dolphin-
directed activities are likely to be concentrated. For further detail
regarding this decision, please see the responses to Comments 23-26.
Regarding the approach distance, this final regulation maintains
the 50 yard (45.7 m) approach distance proposed in the DEIS, proposed
rulemaking, and analyzed in the FEIS. We received public comments in
support of both increasing the distance and decreasing the distance.
However, we selected 50 yards (45.7 m) as the approach distance for
this regulation because it would reduce the threat of take occurring to
spinner dolphins resulting from close approach by swimmers and vessels,
while placing the least restrictive burden on the viewing public.
Additionally, we already recommend this distance (50 yards (45.7 m)) 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. This decision is more fully
described in the responses to Comments 8 and 9.
For further information regarding the effects of close approach on
spinner dolphins, please see the proposed rule.

References Cited

A complete list of all references cited in this rulemaking can be
found on our website at: https://www.fisheries.noaa.gov/action/enhancing-protections-hawaiian-spinner-dolphins, or at
www.regulations.gov, and is available upon request from the NMFS office
in Honolulu, Hawai`i (see ADDRESSES).

Classification

National Environmental Policy Act (NEPA) and Regulatory Impact Review
(RIR)

NMFS has prepared an FEIS and an RIR pursuant to NEPA (42 U.S.C.
4321 et seq.) and Executive Order (E.O.) 12866, to support this
regulation. The FEIS/RIR contains a full analysis of a No Action
Alternative, five action alternatives, and the Preferred Alternative.
NMFS prepared a Record of Decision (ROD) detailing the agency's
decision concerning this regulation. The FEIS/RIR, ROD, and supporting
documents are available for review and comment and can be found on the
NMFS Pacific Islands Region website at https://www.fisheries.noaa.gov/action/enhancing-protections-hawaiian-spinner-dolphins.

Regulatory Flexibility Act

A final regulatory flexibility analysis (FRFA) was prepared for
this action and is included below. The FRFA incorporates the initial
regulatory flexibility analysis (IRFA) prepared for the proposed rule
stage, an analysis of updated information collected after the comment
period for the proposed rule closed (Impact Assessment 2018), and
includes a summary of the significant issues raised by the public and
the Small Business Administration (SBA) in response to the IRFA, along
with NMFS' responses to those comments.
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 Final Regulatory
Flexibility Analysis (FRFA). A description of the action, why it is
being considered, and the legal basis for this action are contained in
the preamble to this final rule. This final 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 rule will apply. The Small Business
Administration (SBA) establishes criteria for defining a ``small
entity'' for purposes of the RFA. There are no record-keeping or
reporting requirements associated with this action.
The Chief Counsel for Advocacy of the Small Business Administration
did not file any comments on the proposed rule. NMFS did not receive
comments on the IRFA, although some comments on the economic aspects of
the proposed rule, including those that affect small entities, could be
relevant. Please see

[[Page 53839]]

Comments 20, 38, 39, and 40 and NMFS's responses to those comments.
There are several types of industries directly affected by this
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 $8.0 million or less. Much of
the background information for potentially affected entities is based
on a 2018 report (2018 report) that summarized information collected in
2017 with regard to participants within these industries that
potentially interact with Hawaiian spinner dolphins to varying degrees
in the MHI (Impact Assessment 2018). The 2018 report is similar to the
socioeconomic report finalized in 2007 (which contained information
collected in 2006 and provided much of the information for the IRFA in
support of the proposed rule), but with updated information. The 2018
report provides information that suggests that most, if not all,
businesses operating in the swim-with-wild-dolphins tour and the
dolphin watch tour industries operating in 2017 could be considered
small entities, and most of the generalized commercial boat tour
operators were assumed to be small entities (Impact Assessment 2018).
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.
The number of businesses in this category increased between 2007 and
2017, especially on the Island of Hawai`i. 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. According to the 2018 report, an estimated six to eight
locally owned spiritual retreat businesses and at least 33 non-local
(i.e., mainland United States, Europe, Japan, South Africa, and
Australia) spiritual retreat businesses operating on Hawai`i Island
reportedly provided direct Hawaiian spinner dolphin interaction in
2017. No numbers were provided for spiritual retreat businesses
operating on O`ahu, Maui, and Kaua`i.
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, flotation devices, and snorkels to
enhance viewing. The 2018 report suggests that at least 41 swim-with-
dolphins tour companies operated on Hawai`i and seven operated on
O`ahu. The report also indicated that commercial boat tours on Maui did
not appear to advertise underwater encounters with spinner dolphins,
nor did those on Kauai, although unplanned encounters may occur. 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. The
2018 report did not provide estimated number of businesses that
primarily focused on dolphin viewing, but NMFS had previously estimated
the number of dolphin watch tour businesses to be as follows: Hawai`i
(3), Maui (21), O`ahu (3), and Kaua`i (11) in 2015 (NOAA Fisheries,
PIRO).
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. The 2018 report provided economic or
operational information from 28 generalized commercial boat tour
businesses (Hawai`i Island: 5, O`ahu: 2, Maui: 16, and Kaua`i: 15),
although there are likely more businesses that fall in this category.
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 few, if any, operators
advertising direct or intentional interactions with dolphins. The 2018
report indicated that these operations were designed to provide clients
with a variety of recreational and sightseeing experiences that
typically did not include dolphin interactions. The 2018 report did not
provide estimated number of businesses in this category, but NMFS had
previously estimated that in 2015, the numbers of companies that either
operate kayak tours or rent out kayaks to be as follows: Hawai`i (6),
Maui (9), O`ahu (6), and Kaua`i (13) (NOAA Fisheries, PIRO). Based on
the information from the 2018 report and/or obtained by NMFS in 2015,
the estimated numbers of small entities directly affected by the final
rulemaking, by industry, on the MHI are as follows: At least 60 or 70
swim-with-wild-dolphins tour operators (including health and/or
spiritual retreats enabling opportunities to swim with wild dolphins),
and at least 38 generalized commercial boat tour operators (one or more
of which are likely to be considered large entities).
Because information on these entities were collected in 2017, their
numbers might differ currently and in the near term, as these are
businesses whose customer base are often comprised of tourists and
visitors to the State of Hawaii or interisland travelers. Beginning in
March 2020, the Hawaii tourism industry has been undergoing a
significant drop in travel and tourism-related business activities due
to the COVID pandemic. In April 2020, 4,564 visitors arrived in Hawaii,
a 99.5% decrease from the number of visitors that arrived in April 2019
(https://www.hawaiitourismauthority.org/media/4635/april-2020-visitor-statistics-press-release-final.pdf). While tourism has increased in the
state over the last year with 791,053 visitor arriving in Hawaii in
June 2021, this number represents a 16.5 percent decline compared to
June 2019 (https://www.hawaiitourismauthority.org/media/7582/june-2021-visitor-statistics-press-release.pdf). As a result, the tourism
industry has faced immediate financial challenges and businesses that
rely on tourists, such as boat-based wildlife viewing tours, snorkel
tours, and spiritual retreats have been financially impacted from the
COVID pandemic. Although it is not known when tourism will return to
pre-COVID levels, we anticipate that that dolphin directed activities
would resume to pre-pandemic levels in the future.
This final rule would restrict all activities associated with close
approach to Hawaiian spinner dolphins, including swimming with dolphins
and close approach by vessel. These approach prohibitions would be
applicable within 2 nmi (3.7 km) of each

[[Page 53840]]

of the MHI and in designated waters bounded by the islands of
L[amacr]na`i, Maui, and Kaho`olawe. This rule implements the least
restrictive measure that still achieves reduction in harassment of
dolphins.
The ban on swimming and approaching within 50 yards (45.7 m) of
Hawaiian spinner dolphins, has the potential to eliminate all
activities, including commercial activities that may result in take of
spinner dolphins (e.g., swim-with-wild-dolphins) at a close distance.
Therefore, implementing this final 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 (45.7 m) 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 after the
implementation of the final rule. The 2018 report indicated that many
of the business owners or operators facilitating underwater dolphin
encounters expected that they would see lower profits, devaluation of
business assets, employee layoffs, or they might decide move the
business to a different location outside of Hawaii, or some operators
expected they would go out of business. One operator reported laying
off all his employees after voluntarily complying with the proposed
rule. NMFS, however, has no corroborating information for this report.
Some others stated that they would try to create a different kind of
retreat.
Commercial wildlife boat tour operators, including generalized
commercial boat tour operators, dolphin 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
(45.7 m). Restricting operators from approaching within 50 yards (45.7
m) 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 Hawai`i would be able to offer tours closer
than 50 yards (45.7 m). 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 final
action is likely to be minimal.
Participants of dolphin directed activities may also support other
industries indirectly, including lodging, food industry, and car
rentals. Many dolphin-swim participants may travel to Hawaii and
participate in a wide variety of other ocean based activities,
including vessel based wildlife viewing. Weiner (2016) found that 78
percent of participants of swim-with dolphin tours would still
participate in a dolphin tour, even if they could not go in the water
with dolphins. The industries that provide goods and services to
visitors could potentially see some loss in revenue if new regulations
were implemented that prohibited swimming with dolphins. However, many
of these businesses serve a much larger number of local, U.S., and
international visitors to the state seeking a wide range of
experiences, of which direct encounters with dolphins are a small
component.
NMFS concludes that there would be disproportionate impacts to the
swim-with-wild-dolphin tour operators from implementation of this final
action 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 final 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 $8.0
million.
NMFS considered other alternatives in addition to the swim-with and
50 yard (45.7 m) approach regulations (Alternative 3(A)). These include
Alternative 1: No action; Alternative 2: Swim-with regulations;
Alternative 3(B): Swim-with and 100 yard (91.4 m) approach regulations;
Alternative 4: Mandatory time-area closures, swim-with, and 50 yard
(45.7 m) approach regulations; and Alternative 5: Voluntary time-area
closures and swim-with and 50 yard (45.7 m) approach regulations. As is
the case for this final action, Alternatives 2, 3(B), 4, and 5 would
all be applicable within 2 nmi of each MHI and in designated waters
bounded by the islands of L[amacr]na`i, Maui, and Kaho`olawe. Among the
non-selected action alternatives, all would likely result in a higher
direct economic impact to individual small entities and the dolphin-
viewing industry as a whole, relative to the final action, except for
Alternative 2. NMFS has determined that the final action meets the
goals and objective of reducing human-caused disturbances that Hawaiian
spinner dolphins are facing in their natural habitat, and will help
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, Regulatory Planning and Review

This 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 rule includes no
new collection of information, so further analysis is not required.

National Historic Preservation Act (NHPA)

The goal of the 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

[[Page 53841]]

section 106 process set forth in the implementing regulation,
``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.
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.
NMFS conducted a scoping process to determine if historic
properties may be affected by the proposed regulation. Native Hawaiian
organizations, communities, and individuals were contacted upon
recommendation from Hawai`i's State Historic Preservation Division and
four community scoping meetings were held in 2012 with those who
expressed interest in the proposed undertaking. NMFS has not received
any information to suggest that this undertaking would adversely affect
historic properties or hinder cultural practices within historic
properties such as those identified through the interviews with lineal
descendants (e.g., fishing, canoe activities, ancestral caretaking and
worship, and care of burial sites).
We have determined a swim-with and approach regulation for Hawaiian
spinner dolphins does not have the potential to cause effects on or
alterations to the characteristics of historic properties. In
consideration of the foregoing the NMFS has determined that the
undertaking is a no potential to effect determination (36 CFR 800.3)
under Section 106 of the NHPA.

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 determined that this regulation is consistent to the
maximum extent practicable with the enforceable policies of the
approved Coastal Zone Management Program of Hawai`i. This determination
and the DEIS were submitted for review by the Hawai`i Coastal Zone
Management (CZM) Program. The Hawai`i CZM Program concurred with our
determination in a letter dated September 27, 2016.

List of Subjects in 50 CFR Part 216

Administrative practice and procedure, Marine mammals.

Dated: September 20, 2021.
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 amended
as follows:

PART 216--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE
MAMMALS

0
1. The authority citation for 50 CFR 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 (nmi) of the main
Hawaiian Islands, and
(2) In all waters bounded by the islands of L[amacr]na`i, Maui, and
Kaho`olawe enclosed by 3 line segments that connect points on the 2-nmi
boundary between the islands as follows: The straight line between
20[deg]32'51'' N/156[deg]43'50'' W (Kaho`olawe) and 20[deg]42'4'' N/
156[deg]55'34'' W (L[amacr]na`i), the straight line between
20[deg]51'1'' N/156[deg]54'0'' W (L[amacr]na`i) and 20[deg]59'48'' N/
156[deg]42'28'' W (Maui), and the straight line between 20[deg]33'55''
N/156[deg]26'43'' W (Maui) and 20[deg]32'15'' N/156[deg]29'51'' W
(Kaho`olawe) (all coordinates referenced to The World Geodetic System
of 1984 (WGS 84)).

Table 1 to Paragraph (a)(2)--Coordinates for the Extent of the Designated Waters Bounded by L[amacr]na`i, Maui,
and Kaho`olawe *
[All coordinates referenced to The World Geodetic System of 1984 (WGS 84).]
----------------------------------------------------------------------------------------------------------------
Line segment between islands Figure 3 label Latitude Longitude
----------------------------------------------------------------------------------------------------------------
Kaho`olawe and L[amacr]na`i...... A1 20[deg]32'51'' N 156[deg]43'50'' W
A2 20[deg]42'4'' N 156[deg]55'34'' W
L[amacr]na`i 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 Kaho`olawe.............. C1 20[deg]33'55'' N 156[deg]26'43'' W
C2 20[deg]32'15'' N 156[deg]29'51'' W
----------------------------------------------------------------------------------------------------------------
* (see Figure 3 of this section).

(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 (45.7 m) of a Hawaiian
spinner dolphin by any means;
(2) Swim within 50 yards (45.7 m) of a Hawaiian spinner dolphin;
(3) Cause a vessel, person, or other object to approach or remain
within 50 yards (45.7 m) of a Hawaiian spinner dolphin; or
(4) Intercept or place a vessel, person, or other object in the
path of a Hawaiian spinner dolphin so that the dolphin approaches
within 50 yards (45.7 m) 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 (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 Hawaiian
spinner dolphin, provided the vessel continues normal navigation and
makes no effort to engage or pursue the animal. For purposes of this
exception, a vessel is defined as a watercraft or other artificial
contrivance used, or capable of being used, as a means of
transportation on water (1 U.S.C. 3); a vessel is underway if it is not
made fast to the shore, at anchor, or aground;

[[Page 53842]]

(3) Any vessel transiting to or from a port, harbor, or in a
restricted channel when a 50-yard (45.7 m) 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) Any vessel that is anchored or aground and is approached by a
Hawaiian spinner dolphin, provided the vessel makes no effort to engage
or pursue the animal;
(6) Activities authorized through a permit or authorization issued
by the National Marine Fisheries Service to take Hawaiian spinner
dolphins;
(7) Federal, State, or local government vessels, aircraft,
personnel, and assets when necessary in the course of performing
official duties;
(8) Commercial fishing vessels that incidentally take spinner
dolphins during the course of commercial fishing operations, provided
such vessels operate in compliance with a valid marine mammal
authorization in accordance with MMPA section 118(c).
(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 restriction.
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[FR Doc. 2021-20616 Filed 9-27-21; 8:45 am]
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