[Federal Register Volume 86, Number 185 (Tuesday, September 28, 2021)]
[Proposed Rules]
[Pages 53844-53862]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-20620]
Federal Register / Vol. 86, No. 185 / Tuesday, September 28, 2021 /
Proposed Rules
[[Page 53844]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 216
[Docket No. 210901-0174]
RIN 0648-BK04
Establishment of Time-Area Closures for Hawaiian Spinner Dolphins
Under the Marine Mammal Protection Act
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Department of Commerce.
ACTION: Proposed rule; request for comment.
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SUMMARY: We, NMFS, propose a regulation under the Marine Mammal
Protection Act (MMPA) to establish mandatory time-area closures of
Hawaiian spinner dolphins' essential daytime habitats at five selected
sites in the Main Hawaiian Islands (MHI). These regulatory measures are
intended to reduce take of Hawaiian spinner dolphins from occurring in
inshore marine areas at essential daytime habitats, and where high
levels of disturbance from human activities are most prevalent. During
designated times, unless subject to an exception as described in this
rule, these regulatory measures would prohibit any person or vessel, on
or below the surface, to enter, cause to enter, solicit to enter, or
remain within any of the five time-area closures, for the purpose of
preventing take of Hawaiian spinner dolphins in areas identified as
important essential daytime habitats for spinner dolphins that have
high levels of human disturbance. The proposed mandatory time-area
closures would occur from 6 a.m. to 3 p.m. daily in areas of Kealakekua
Bay, H[omacr]naunau Bay, Kauhak[omacr] Bay (Ho`okena), and Makako Bay
on Hawai`i Island, and La Perouse Bay on Maui.
DATES: Comments on this proposal must be received by December 27, 2021.
ADDRESSES: You may submit comments, identified by the docket number
NOAA-NMFS-2021-0091, by either of the following methods:
Electronic Submission: Submit all electronic comments via the
Federal eRulemaking Portal. Go to www.regulations.gov and enter NOAA-
NMFS-2021-0091 in the search box. Click on the ``Comment'' icon,
complete the required fields, and enter or attach your comments. Copies
of this rule and the Final Environmental Impact Statement (FEIS) and
Record of Decision (ROD) 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
Mail: 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.
Instructions: You must submit comments by one of the above methods
to ensure that we receive, document, and consider them. Comments sent
by any other method, to any other address or individual, or received
after the end of the comment period, may not be considered. All
comments received are a part of the public record and will generally be
posted to http://www.regulations.gov without change. All Personal
Identifying Information (for example, name, address, etc.) voluntarily
submitted by the commenter may be publicly accessible. Do not submit
confidential business information or otherwise sensitive or protected
information. NMFS will accept anonymous comments (enter ``N/A'' in the
required fields if you wish to remain anonymous). Attachments to
electronic comments will be accepted in Microsoft Word, Excel,
WordPerfect, or Adobe PDF file formats only.
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:
Background
In recent years, viewing of wild marine mammals in Hawai`i has
increased, 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 (O'Connor 2009, Impact Assessment 2018),
putting new pressures on easily accessible groups of resting Hawaiian
spinner dolphins. In 2016, when NMFS proposed a swim-with and approach
regulation for Hawaiian spinner dolphins (81 FR 57854), 8,934,277
visitors came to Hawaii representing a substantial (18.2 percent)
increase from the number of visitors Hawaii received a decade earlier
when 7,561,311 visitors arrived in 2006 (https://www.hawaiitourismauthority.org/media/1146/2006-annual-visitor-research-report.pdf, https://www.hawaiitourismauthority.org/media/3711/2016-annual-visitor-research-report-revised-5-24-18.pdf). Since 2016, the
number of visitors has increased at an even higher rate with 10,386,673
visitors arriving in 2019, representing a 16.3 percent increase over a
3 year period (https://www.hawaiitourismauthority.org/media/5062/2019-annual-report-final-for-posting.pdf). The COVID pandemic and associated
travel restrictions significantly reduced tourism in 2020, with a 75.2
percent decrease in the number of visitors in December 2020 compared to
December 2019. However, tourism has already rebounded in 2021 to date,
with the number of visitors in June 2021 approaching pre-pandemic
levels, showing only an approximate 16.5 percent decrease compared to
June 2019 (https://www.hawaiitourismauthority.org/media/7582/june-2021-visitor-statistics-press-release.pdf).
Along 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 (Wiener 2016, O'Conner
et al. 2009). 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 has increased
from 5 in 2007 to 47 in 2017 (Impact Assessment 2018). Similarly,
commercial boat tours that facilitate close, in-water dolphin
interactions increased on Hawai`i Island from six 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.
Essential daytime habitats refer to preferred daytime habitats of
spinner dolphins that provide space with optimal environmental
conditions for resting, socializing, and nurturing young. 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
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concerns over human-dolphin interactions.
In April 2000, the MMC released a literature review of scientific
publications that evaluated the impacts of swimming with wild dolphins
worldwide (Samuels et al. 2000). The authors of this review noted the
prevalence of disturbances by tourist activities in areas critical to
the animals' well-being, and recommended that precautions be taken to
protect the dolphins (Samuels et al. 2000). The concerns about
disturbance to spinner dolphins by boaters and swimmers prompted NMFS
to raise the topic of enhancing protections for these animals in an
ANPR (70 FR 73426, December 12, 2005). Public comments received in 2005
reiterated and reinforced the concerns expressed by the MMC. In the
years since the 2000 Samuels et al. review, additional scientific
evidence has documented disturbances or disruptions to spinner dolphins
by boaters or swimmers (Forest 2001; Courbis 2004, 2007; Danil et al.
2005; Timmel 2005; Courbis and Timmel 2009; Ostman-Lind 2009; Symons
2013; Heenehan et al. 2014; Tyne et al. 2015). This problem is
pronounced in spinner dolphin essential daytime habitats that are
targeted for dolphin-directed activities, and animals that use these
areas are exposed to intense activity on a daily basis. For example, a
recent study found that human activities took place within 100 meters
(m) of spinner dolphins over 82 percent of the time that the animals
were using four spinner dolphin resting bays on Hawai`i Island:
Kealakekua Bay, Makako Bay, H[omacr]naunau Bay, and Kauhak[omacr] Bay
(Tyne et al. 2018).
Certain biological and life history characteristics make Hawaiian
spinner dolphins uniquely vulnerable to disturbance from human
activity. In 2010, we recognized five island-associated stocks and one
pelagic stock of Hawaiian spinner dolphins in our annual Stock
Assessment Report, identifying genetic distinctions and site fidelity
differences as reasons to separately manage stocks found in waters
surrounding the Hawaiian Islands (Andrews 2009; Andrews et al. 2010;
Carretta et al. 2011; Hill et al. 2010). Three of the 5 island-
associated stocks (the Kaua`i/Ni`ihau stock, O`ahu/4-Islands stock, and
Hawai`i Island stock) are found near the MHI and are considered
resident stocks. These 3 stocks reside in waters surrounding their
namesake islands out to approximately 10 nautical miles (nmi) (18.5
kilometers (km)) (Hill et al. 2010), and population estimates for each
stock are relatively small. The Hawai`i Island stock, which is thought
to be the largest stock, has an estimated 617 individuals (Coefficient
of Variation (CV)=0.09), the Kaua`i/Ni`ihau estimated to be around 601
(CV=0.20), and O`ahu/4-Islands stocks is estimated to be 355 (CV=0.09)
individuals, (Tyne et al. 2014, Carretta et al. 2019).
These smaller, island-associated spinner dolphin populations may be
at a higher risk compared to a larger population that may interbreed
widely throughout the region. Dolphin populations that are resident,
closed, or isolated (local populations with barriers to gene flow) can
become more susceptible to threats than larger, genetically-diverse
populations because the impacts to multiple individuals' health and
fitness have quicker and more disproportionate effects population-wide
(Bejder 2005). Thus, the small island-associated spinner dolphin
populations of the MHI may be more vulnerable to negative impacts from
threats, including human disturbance.
MHI spinner dolphins 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 involves accomplishing the energetically
demanding task of foraging at night when spinner dolphins move offshore
in large groups to 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. 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 essential daytime habitats of
spinner dolphins are areas that provide space with optimal
environmental conditions for resting, socializing, and nurturing young.
Spinner dolphins' essential daytime habitats are located close to
offshore feeding areas, which minimize the energetic cost of nightly
travel to and from these areas and have environmental characteristics
that support the dolphins' ability to detect predators (Norris and Dohl
1980, Norris et al. 1994, Thorne et al. 2012).
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. Additionally,
the physical characteristics of essential daytime habitats increase the
dolphins' ability to visually (instead of acoustically) detect
predators while resting, and thus minimize the energetic costs of
vigilance (Norris et al. 1994). Tyne et al. (2017) observed socializing
behavior in the early mornings and late afternoons in essential resting
habitats and found that spinner dolphins were never observed foraging
during the daytime, when resting was the predominant activity. As a
result, the authors propose that the constrained nature of spinner
dolphin behaviors suggests that they are less resilient to human
disturbance than other cetaceans.
Thorne et al. (2012) used dolphin surveys and predictive habitat
modeling to test a suite of these environmental factors that may make
spinner dolphins favor these areas. The study found that proximity to
deep-water foraging areas, depth, the proportion of bays with shallow
depths, and low rugosity (indicating low substrate roughness, i.e.,
sand) were important predictors of spinner dolphin habitat. The
strongest predictors of spinner dolphin resting habitat were distance
to the 100 m depth contour (foraging habitat) and depth of the resting
areas, with spinner dolphin resting habitat generally occurring in the
shallow depths (<50 m) within a bay that was close to the 100 m depth
contour and thus, their offshore foraging grounds (Thorne et al. 2012).
In tests of these characteristics across the MHI, the bays that were
predicted by the model to be optimal resting habitats were consistent
with spinner dolphin resting habitats that are recognized as preferred
from various observations.
Tyne et al. (2015) further examined key ecological characteristics
and spinner dolphin behavior to see which characteristics support
resting behavior. The most important factor contributing to the
likelihood of rest was the dolphins' presence within a bay, meaning
that they were most likely to rest when they were inside a bay (Tyne et
al. 2015). Another important factor was the presence of sand substrate.
In general, spinner dolphins spent disproportionately more time over
sandy substrates in and out of bays;
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however, outside of bays, spinner dolphins were observed mostly
travelling over sandy substrates. This supports the finding that the
bays themselves are the most important factor for resting behaviors,
because even sandy substrate outside of the bays did not significantly
predict resting behavior. This work highlights the role that essential
daytime habitat areas play in supporting important fitness enhancing
behaviors, specifically rest.
Essential daytime habitats have been targeted by commercial
operators and individuals interested in viewing or interacting with
Hawaiian spinner dolphins because encounters with dolphins in these
areas are virtually guaranteed. Tyne et al. (2018) found that dolphins
using essential daytime habitats off the west coast of Hawai`i are
experiencing human activities within 100 m over 82 percent of the time.
The rate of exposure to human activities off the west coast of Hawai`i
Island is 25 percent higher than reported for other dolphins studied
for behavioral response to human activities in other areas of the world
(Tyne 2015). At some locations, up to 13 tour boats have been observed
jockeying for position on a single dolphin group, with up to 60
snorkelers in the water (Heenehan et al. 2014). Apart from commercial
tour operations, people also swim, kayak, or paddle into essential
daytime habitats to seek interactions with the dolphins (Sepez 2006).
In addition, spiritual retreats 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 rate of exposure at Hawaiian
spinner dolphin daytime essential habitats may place resident stocks at
risk and long-term disturbance could result in habitat displacement or
reduced fitness, as seen in other dolphin populations (Bejder et al.
2006a, 2006b; Lusseau and Bejder 2007).
Several studies have investigated how high levels of human activity
have impacted the quality of essential daytime habitats for spinner
dolphins. Heenehan et al. (2017) assessed the acoustic response of
Hawaiian spinner dolphins to human activities, such as presence of
vessels and swimmers/snorkelers in four Hawai`i Island bays (Makako
Bay, Kealakekua Bay, H[omacr]naunau Bay, and Kauhak[omacr] Bay). By
using passive acoustic monitoring equipment, Heenehan et al. found that
human activity drastically altered the quiet daytime soundscape of
these four bays. Johnston et al. (2013) evaluated the likelihood of
spinner dolphins resting, given various human activities occurring at
different distances. Researchers found that the presence of swimmers
within 150 m significantly decreased the likelihood of resting.
Interestingly, the likelihood of dolphins resting was higher when
vessels were present between 50 and 150 m, creating the appearance of a
positive relationship between resting behavior and vessel presence at
this distance. These results may demonstrate a difference in dolphins'
perceived risk between swimmers and vessels, or a lack of perceived
risk associated with vessels. However, this positive relationship
between resting behavior and vessels may also be influenced by the high
frequency of observations with vessels present between 50-300 m and few
observations with no vessels present (Johnston et al. 2013), and
therefore provide limited opportunities during the day for resting when
vessel are not in close proximity.
The best available scientific evidence documents the effects of
dolphin-directed activities on spinner dolphin health and behavior,
especially activities that occur within these essential daytime
habitats. 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. Individual dolphin responses to these
activities vary, and in some cases, may not be apparent to an observer
(e.g., elevated heart rates or increased watchfulness). However,
discernable responses may include aerial displays when closely
approached by vessels and swimmers (Forest 2001, Courbis and Timmel
2008); avoidance behaviors, including moving around and away from
swimmers and vessels, or leaving the area in response to human pursuit
(Ostman-Lind et al. 2004, Courbis 2004, Courbis and Timmel 2008); and
aggressive behaviors directed at people, including charging or threat
displays (Norris et al. 1985, Norris et al. 1994).
Effects have been documented in the form of changes over time to
spinner dolphins' behavioral patterns in essential daytime habitats.
Courbis and Timmel (2008) reported differences in peak aerial activity
throughout the day in comparison with earlier studies (Forrest 2001),
and noted that dolphins may have reduced aerial behavior to avoid human
notice and approaches. Timmel et al. (2008) noted the dolphins'
direction of travel altered more frequently as the number of swimmers
and/or vessels near to them increased. Symons (2013) found that spinner
dolphins are less likely to rest when swimmers are present within 150
m. Numerous studies report changes in dolphin residence time within
essential daytime habitats compared to earlier studies (Courbis 2004,
Courbis and Timmel 2008, Ostman-Lind 2007, Forest 2001). In addition,
human activities within essential daytime habitats may be affecting
where spinner dolphins engage in their daytime behaviors within these
areas. Courbis and Timmel (2008) reported changes in the location of
resting spots within Kealakekua Bay from previous studies by Doty
(1968) and Norris and Dohl (1980), and warned that changes in locations
within the bay could be a precursor to abandonment of the bay with
future increases in traffic.
When marine mammals respond to disturbance events, they incur a
cost in the form of the energy expended to respond, as well as the lost
opportunity to engage in natural fitness-enhancing behavior. For
example, spinner dolphins disturbed during rest may engage in avoidance
or distress behaviors, which require energy, and disturbance detracts
from the dolphins' abilities to recuperate from energetically demanding
behaviors, such as foraging, transiting to and from offshore foraging
grounds, and nurturing their young. In this example, the lack of
consistent, undisturbed resting periods can reduce the amount of energy
available to forage and care for young.
The predictable patterns of MHI resident spinner dolphins'
nearshore distribution, particularly in essential daytime habitats,
result in concentrated daily viewing and disturbance pressure on
individual dolphins and groups over extended periods of time. In other
small cetacean populations, chronic disturbance to natural behavioral
patterns has been linked to biologically significant impacts, such as
habitat abandonment and reduced female reproductive success (Bejder
2005; Bejder et al. 2006a, 2006b; Lusseau and Bejder 2007). Over time,
chronic disturbance to the MHI's resident spinner dolphins could
ultimately lead to habitat displacement and/or long term impacts to
their individual fitness. These types of impacts may be amplified in
local populations with barriers to gene flow, such as isolated island-
associated spinner dolphin stocks, because the impacts to multiple
individuals' health and fitness are quickly reflected in the overall
fitness of the population (Bejder 2005). Accordingly, the small
resident spinner dolphin populations of the MHI may be more vulnerable
to negative impacts from human disturbance. Chronic wildlife
disturbance within important habitats may ultimately leading to
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population level impacts (Frid and Dill 2002, Bejder 2006).
These time-area closures are necessary and appropriate under the
MMPA to reduce take of individual animals in their daytime resting
areas. Disturbances to dolphins' daily behavioral patterns in essential
daytime habitats may result in ``take,'' as defined and prohibited
under the MMPA and its implementing regulations. The chronic nature of
these problems in Hawai`i and observed changes to spinner dolphin
behavioral patterns over time are a cause for concern and require
management action to prevent take and provide sufficient protection for
Hawaiian spinner dolphins at essential daytime habitats.
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)). In addition, NMFS' regulations
implementing the MMPA 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 throughout the country. In Hawai`i, we
are implementing a regulation under the MMPA, along with a EIS, to
prohibit (with exceptions) swimming with and approaching a Hawaiian
spinner dolphin within 50 yards (for persons, vessels, and objects),
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. NMFS is publishing the final rule implementing the swim-
with and approach regulation concurrent with this proposed rule.
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. On a national level, NMFS guidelines
note that the Marine Mammal Protection Act and the Endangered Species
Act do not provide for permits or other authorizations to view or
interact with wild marine mammals and sea turtles, except for specific
listed purposes such as scientific research. NMFS maintains as policy
that interacting with wild marine life outside of permitted research
should not be attempted and viewing marine mammals and sea turtles must
be conducted in a manner that does not harass the animals. NMFS does
not support, condone, approve, or authorize activities that involve
closely approaching, interacting, or attempting to interact with
whales, dolphins, porpoises, seals, sea lions, and sea turtles in the
wild. This includes attempting to swim with, pet, touch, or elicit a
reaction from the animals (https://www.fisheries.noaa.gov/topic/marine-life-viewing-guidelines). In addition to national guidelines, each of
the five NMFS Regions has developed recommended viewing guidelines
relevant to protected species in the respective regions to assist the
general public with information on how to responsibly view and act
around these animals in the wild. The guidelines are aimed at assisting
the public in meeting their obligations under the MMPA. Although some
guidelines address activities that are prohibited under law, others
address activities that are not expressly prohibited.
The NMFS Pacific Islands Regional Office's viewing guidelines for
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 (https://www.fisheries.noaa.gov/pacific-islands/marine-life-viewing-guidelines/viewing-marine-wildlife-hawaii). 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.
The swim-with and 50-yard approach prohibition regulation is
expected to reduce the frequency of human and spinner dolphin
encounters in waters within 2nm of the Hawaiian Islands, and in
designated waters bounded by the islands of L[amacr]na`i, Maui, and
Kaho`olawe. However, specific essential daytime habitats have been a
focused target for dolphin directed activities where animals that use
these areas are exposed to intense levels of disturbance. Tyne et al.
2018, found that Hawaiian spinner dolphins at key essential daytime
habitats were exposed to human activity within 100 m for greater than
82 percent of the time. The sites proposed for time-area closures are
important areas for the biological needs of Hawaiian spinner dolphins,
but animals at these sites are also routinely exposed to chronic levels
of disturbance (Heenehan et al. 2017 and Tyne et al. 2018). Such sites
can be effectively protected through time-area closures, as
demonstrated by the successful implementation of similar measures in
the Red Sea where dolphins were exposed to high levels of disturbance
at targeted sites (Heenehan et al. 2017). Recent studies (see Heenan et
al. 2017, Tyne et al. 2017, Stack et al. 2020) have concluded that
time-area closures at essential daytime habitats that are experiencing
high levels of disturbance can provide effective protection for
Hawaiian spinner dolphins.
The number of dolphin directed activities in Hawaii has increased
from 2007 to 2017 (Impact Assessment 2018). The spinner dolphin
essential daytime habitats are heavily-targeted for dolphin-directed
activities, and dolphins that use these areas are being exposed to
intense activity on a daily basis. The additional time-area closures
regulation is needed to address this large increase in the number of
commercial swim-with tour companies, and the associated increase in
take of dolphins that utilize these areas during the day (O'Connor
2009, Impact Assessment 2018; FEIS 2021). Although tourism in Hawaii
was heavily impacted from the COVID pandemic in 2020, which reduced
dolphin directed activities, the number of visitors arriving in Hawaii
has significantly increased in 2021. The number of visitors arriving in
December 2020 was 75.2 percent less than the number of visitors in
December 2019; however, tourism has increased throughout 2021 with the
number of visitors in June 2021 only about 16.5 percent below the
number in June 2019 (https://www.hawaiitourismauthority.org/media/7582/june-2021-visitor-statistics-press-release.pdf). We expect tourism to
continue to increase to reach pre-COVID
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levels. The proposed time-area closures are needed to prevent take by
prohibiting entry into specific areas of daytime essential spinner
dolphin habitat. The sites for the proposed time-area closures were
carefully delineated to the smallest area compatible with still meeting
the purpose of this action to reduce take of Hawaiian spinner dolphins.
Need for Additional Action
Despite the prohibitions, guidelines, outreach, and stewardship
efforts currently in place, the best scientific information available
indicates that Hawaiian spinner dolphins require additional protections
within their essential daytime habitats, the expansion of commercial
swim-with tours has put additional pressures on Hawaiian spinner
dolphins (see Background). Consequently, we expect the swim-with and
approach regulation alone will not provide sufficient protection to
Hawaiian spinner dolphins by reducing close encounters between spinner
dolphins and humans that result in take, particularly at the five
selected sites that are significant for Hawaiian spinner dolphins and
face especially high levels of disturbance (Tyne et al. 2018). We
expect the swim-with and approach regulation will reduce the intensity
of activities within essential daytime habitats to some degree, but
effective protection for spinner dolphins residing in these habitats
will be provided by implementing time-area closures in the five areas
identified in Alternative 4 of the FEIS in addition to the swim-with
and approach regulation.
Numerous research studies suggest that restricting human activity
in essential daytime habitats for spinner dolphins will minimize
disturbance and harm to the dolphins (see Background). Several studies
involved in the ``Spinner Dolphin Acoustics, Population Parameters, and
Human Impact Research'' (SAPPHIRE) project, recommended that management
strategies should focus on reducing human activity that can disturb
dolphins in essential daytime habitats, particularly through the use of
time-area closures (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). In addition, we solicited comments regarding the
implementation of time-area closures in bays designated as spinner
dolphin essential daytime habitats on Hawai`i Island and Maui in the
proposed rule published on August 24, 2016 (81 FR 57854). We received
comments from individuals, scientific researchers, community groups,
Native Hawaiians, and tour operators. Although some commenters opposed
implementation of time-area closures, most comments that referenced
time-area closures were in favor of implementing a version of these
restrictions, and supported the establishment of time-area closures at
the five bays proposed in this rulemaking. As discussed earlier, after
reviewing the public comments from the 2016 proposed rule and analyzing
the scientific literature supporting the inclusion of time-area
closures to protect spinner dolphins, and in considering the large
increase in commercial swim-with dolphin tours and associated high
levels of take from these activities occurring in dolphin daytime
essential resting sites since 2016, we believe that mandatory time-area
closures should be implemented in Hawaiian spinner dolphins' essential
daytime habitats at the five selected sites described in this proposed
rule to provide sufficient protective measures for spinner dolphins.
The sites proposed for time-area closures include four sites located on
Hawai`i Island, Kealakekua Bay, H[omacr]naunau Bay, Kauhak[omacr] Bay,
and Makako Bay, and one site located on Maui, La Perouse Bay.
Development of the Proposed 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. As noted above in the Background section,
in December 2005, we published an ANPR in the Federal Register (70 FR
73426, December 12, 2005) to solicit input from the public on potential
ways to better enhance protections for spinner dolphins and mitigate
activities of concern (e.g., close approach and swim-with activities).
This was followed by a Notice of Intent (NOI) to Prepare an 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 total
of 4,641 public comments in response to the ANPR and the NOI (this
includes all emails, letters, and public testimonies). Comments were
submitted by concerned citizens, tour operators, scientific
researchers, conservation and education groups, and Federal, state, and
other government entities.
Comments received through both of the public comment periods for
the ANPR and NOI 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; the Endangered Species Act (ESA); guidelines/solutions for
other species or from other countries; human-dolphin interaction;
medical benefits from swimming with dolphins; the MMPA; monitoring;
NEPA; public and stakeholder involvement; regulatory regime; social and
economic issues; spiritual and religious issues; take and harassment;
traditional Hawaiian knowledge; and welfare of the dolphins. Although
comments varied greatly, a consistent theme that stood out under
several topics was the need for effective and enforceable regulations.
As a result of stakeholder concerns expressed through these public
comments, and to prepare a proposed rule to add protections for spinner
dolphins and an 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 we
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 EIS.
Presentations made at the public scoping meetings, the April 2007
EIS public scoping summary report, a list of
[[Page 53849]]
the attendees, the ANPR, public comments, and background materials are
provided at https://www.fisheries.noaa.gov/resource/document/hawaiian-spinner-dolphin-draft-environmental-impact-statement-and-regulatory.
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 SAPPHIRE project,
conducted jointly by Duke University and Murdoch University. The
SAPPHIRE project's objective was to provide baseline data on the local
abundance, distribution, and behavior of spinner dolphins by
integrating a suite of visual and acoustic sampling techniques, boat-
based and land-based surveys, and acoustic recording devices to assess
the following: Spinner dolphin daytime habitat use and resting behavior
in study areas and surrounding waters; residency and fidelity patterns
of spinner dolphins during the day in nearshore habitats in both the
study areas and surrounding waters; spinner dolphin exposure to human
activities within the studied resting bays and surrounding waters; and
spinner dolphin demographic response to human activities within resting
bays and surrounding waters.
Research targeting four bays (Kealakekua Bay, H[omacr]naunau Bay,
Kauhak[omacr] Bay, and Makako Bay) and nearshore waters of Hawai`i
Island began in August 2010 and was completed in May 2013. 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 from dolphin-directed human
activities. Many of these studies have been published in scientific
literature and 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 Background
section above.
We relied on the public comments on the ANPR and the NOI, and the
best available scientific information to develop a range of regulatory
and non-regulatory alternatives in the DEIS. We analyzed the
environmental effects of these alternatives and considered options for
mitigating effects. On August 24, 2016, we published the DEIS and
proposed a rule to implement a prohibition on approaching spinner
dolphins within 50 yard and swimming with dolphins, and solicited
comments on both the proposed regulation and the consideration of
establishing time-area closures (81 FR 57854). During the public
comment period for the 2016 proposed rule, we received 22,031 written
submissions via letter, email, and the Federal eRulemaking Portal. In
addition, we hosted 6 public hearings on the islands of Hawai`i, O`ahu,
Maui, and Kaua`i, and received 145 oral testimonies. Of these written
comments, 2,294 were unique, with anywhere from two to 17,000 near-
duplicates of each. Additionally, NMFS received a petition 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. The final swim-with and 50-yard approach
prohibition rule, which is publishing concurrent with this proposed
rule, includes our responses to these comments.
The swim-with and 50-yard approach prohibition regulation is
expected to reduce the frequency of human and Hawaiian spinner dolphin
encounters that result in take. However, between the August 24, 2016
proposed rule and finalization of this final swim-with and 50-yard
approach prohibition regulation, there has been an increase in
commercial swim-with tours putting new pressures and increased take on
easily accessible groups of resting Hawaiian spinner dolphins (O'Connor
2009, Impact Assessment 2018). As discussed previously, tourism in
Hawaii has continued to increase following significant impacts that
began in 2020 resulting from the COVID pandemic; we expect tourism to
return to pre-COVID levels. The spinner dolphin essential daytime
habitats are targeted for dolphin-directed activities, and dolphins
that use these areas are being exposed to high levels of disruption on
a year-round, daily basis. Based on extensive review and analysis
through internal scoping, external scoping via an ANPR (70 FR 73426,
December 12, 2005), public scoping for the spinner dolphin DEIS, public
comments on the spinner dolphin proposed rule published on August 24,
2016 (81 FR 57854), and the best available scientific information, we
have determined that the existing prohibitions, regulations, and
guidelines need to be enhanced to protect Hawaiian spinner dolphins in
essential daytime habitats from various forms of take from human
activities that cause harassment or disturbance. Although the swim-with
and approach regulation will provide protection to Hawaiian spinner
dolphins by reducing close encounters between spinner dolphins and
humans to some degree, implementing time-area closures will provide
effective protection for spinner dolphins at essential daytime habitats
while using the smallest size area required to meet the purpose of this
action in reducing take of Hawaiian spinner dolphins (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). We therefore
deem it necessary and appropriate to adopt an additional regulation to
protect Hawaiian spinner dolphins in essential daytime habitats from
human activities that result in take, including harassment or other
forms of disturbance, as currently defined by statute and regulation.
Proposed Rulemaking
The mandatory time-area closures described in this proposed rule
are designed to protect spinner dolphins from take, including
harassment and disturbance, caused by dolphin-directed activities and
other human activities that are concentrated in Hawaiian spinner
dolphins' essential daytime habitats at five selected sites in the MHI.
These proposed mandatory closures prohibit use of waters in effect from
6 a.m. to 3 p.m. daily in areas of Kealakekua Bay, H[omacr]naunau Bay,
Kauhak[omacr] Bay (Ho`okena), and Makako Bay on Hawai`i Island, and La
Perouse Bay on Maui. NMFS is proposing this regulation pursuant to its
rulemaking authority under MMPA sections 112 (a) (16 U.S.C. 1382(a))
and 102 (16 U.S.C. 1372).
Scope and Applicability
Applications to all Hawaiian Spinner Dolphins
The proposed rule's establishment of time-area closures would apply
to all Hawaiian spinner dolphins found in the action area (see
Geographic Action Area section below).
Geographic Action Area
The five time-area closure sites proposed are at the five bays
identified
[[Page 53850]]
in the 2016 proposed rule (81 FR 57854) and in the DEIS (Figures 4-8).
The boundaries for 2 of the proposed sites (Kauhak[omacr] Bay and La
Perouse Bay) (Figure 6 and Figure 8) have been slightly modified from
the boundaries described in the 2016 proposed rule and DEIS to
accommodate access by canoe groups, fisherman, and other water users to
areas adjacent to the time-area closure areas. The boundary
modifications at these two sites result in a slightly reduced size for
both areas and do not expand beyond the footprints identified in the
DEIS.
The time-area closures' coordinates will be marked using buoys,
sight-line markers, and landmarks from shore, and an explanation of the
closures' purpose and effective hours will be provided by signs on
land. The proposed action areas for the five time-area closures are
illustrated in the maps and the boundaries described as follows:
Hawai`i Island--Kealakekua Bay (Figure 4)
The red box between points A, B, C, and D shown in the following
map illustrates the closure area for Kealakekua Bay. Approximate
segment lengths A-B and C-D are 1,005 m (0.62 mi), and segment lengths
A-D and B-C are 220 m (0.14 miles). The total area of closure is 0.09
mi\2\. The latitude/longitude coordinates are:
A--19[deg]28'37'' N, 155[deg]55'15'' W
B--19[deg]28'54'' N, 155[deg]55'44'' W
C--19[deg]28'48'' N, 155[deg]55'49'' W
D--19[deg]28'32'' N, 155[deg]55'19'' W
The County of Hawai`i identifies two public access points on Boulder
Beach and N[amacr]p[omacr]`opo`o Landing at Kealakekua Bay; both points
would remain open for access. Additionally, the route used by kayakers
to access the Captain Cook Monument at Ka`awaloa from
N[amacr]p[omacr]`opo`o Pier is located outside of the closure area.
Hawai`i Island--H[omacr]naunau Bay (Figure 5)
The red lines between points A, B and C in the following map
illustrate the closure area for H[omacr]naunau Bay; the shoreline
boundary is at the mean lower low water line between points A and C.
The approximate segment length of A-B is 440 m (0.27 mi) and the
segment length of B-C is 330 m (0.21 miles). Total area of closure is
0.04 mi\2\. The latitude/longitude coordinates are:
A--19[deg]25'27'' N, 155[deg]54'41'' W
B--19[deg]25'22'' N, 155[deg]54'57'' W
C--19[deg]25'31'' N, 155[deg]54'58'' W
The closure site at H[omacr]naunau would be delineated by means of a
single marker buoy at point B to accommodate local native Hawaiians'
requests to honor the sacred nature of this cultural site, and would be
aligned with site line markers on shore at points A and C. The County
of Hawai`i identifies H[omacr]naunau Bay boat ramp as a public access
area for this bay. The boat ramp and the popular access point for
swimming and snorkeling known as Two-Step, are located outside of the
closure area and would remain open for everyday use.
Hawai`i Island--Kauhak[omacr] Bay (Figure 6)
The red box between points A, B, C, and D in the following map
illustrate the marine boundaries for the closure area for Kauhak[omacr]
Bay. The approximate segment length of A-B is 330 m (0.21 mi), and the
segment length of B-C is 1,035 m (0.64 miles). The total area of
closure is 0.07 mi\2\. The latitude/longitude coordinates are:
A--19[deg]22'44'' N, 155[deg]53'49'' W
B--19[deg]22'44'' N, 155[deg]53'57'' W
C--19[deg]22'16'' N, 155[deg]53'49'' W
D--19[deg]22'30'' N, 155[deg]53'46'' W
The County of Hawai`i identifies Ho`okena Beach Park as a public access
point for this area, this access point would remain open for everyday
use.
Hawai`i Island--Makako Bay (Figure 7)
The red lines between points A, B, C and D in the following map
illustrate the closure area for Makako Bay; the shoreline boundary is
at the mean lower low water line between points A and D. The
approximate segment length of A-B is 315 m (0.20 mi), the segment
length of B-C is 758 m (0.47 miles) and the segment length of C-D is
372 m (0.23 mi). Total area of closure is 0.14 mi\2\. The latitude/
longitude coordinates are:
A--19[deg]44'21'' N, 156[deg]3'16'' W
B--19[deg]44'25'' N, 156[deg]3'26'' W
C--19[deg]44'2'' N, 156[deg]3'36'' W
D--19[deg]43'57'' N, 156[deg]3'23'' W
No public access point from shore is identified by the County of
Hawai`i for Makako Bay. The closest access points are identified south
at Wawaloli Beach, with another access point identified north at
Ke[amacr]hole Point.
Maui--La Perouse Bay (Figure 8)
The red lines between points A, B, C, and D, in Figure 8 illustrate
the closure area for La Perouse Bay; the shoreline boundary is at the
mean lower low water line between points A and C, and between B and D.
The approximate segment length of A-B is 1,340 m (0.83 mi), and the
segment length of C-D is 1,515 m (0.94 mi). Total area of closure is
0.32 mi\2\. The latitude/longitude coordinates are:
A--20[deg]35'53'' N, 156[deg]25'12'' W
B--20[deg]35'31'' N, 156[deg]24'50'' W
C--20[deg]35'35'' N, 156[deg]25'26'' W
D--20[deg]35'13'' N, 156[deg]24'54'' W
Maui County identifies a public access point for this area
(coordinates: 20[deg]36'10'' N, 156[deg]25'22'' W). The area inshore of
the line between A and B, which includes this access point, would
remain open for everyday use.
Throughout this rule, all coordinates are referenced to the World
Geodetic System of 1984 (WGS84).
These proposed time-area closures are not exclusive to all of the
nearshore habitats used as essential daytime habitat for the spinner
dolphins or all locations where dolphin-directed human activities that
may result in take are known to occur. Similarly, the proposed closure
time period between 6 a.m.to 3 p.m. for these areas is not exclusive of
the only times that spinner dolphins may be present in closed areas,
but this proposed closure time period is chosen in order to encompass
the dolphins' historical resting period, when spinner dolphins are most
likely to be present. (see Rationale section below).
Applications to Time-Area Closures
This proposed rule would create the time-area closures and
promulgate a regulation that prohibits entry and use of surface and
subsurface waters within the five delineated areas from 6 a.m. to 3
p.m. Prohibited uses include all forms of access to the closed areas
including but not limited to all forms of swimming-with and approaching
spinner dolphins; operating a manned or unmanned motorized, non-
motorized, self-propelled, human-powered, or submersible vessel; and
swimming at the water surface or underwater (i.e., SCUBA or free
diving). At all locations, activities occurring in the intertidal zone,
such as shore-based fishing and subsistence gathering, would not be
affected during any time of day. By prohibiting entry, the proposed
mandatory time-area closures would reduce take within these important
areas during the closure time-period.
Requirements of the Proposed Rule
Mandatory Time-Area Closures
The rule implements mandatory time-area closures at five essential
daytime habitats, four of which are located on Hawai`i Island, and one
located on Maui. Entry is prohibited in the closure areas every day
between the hours of 6 a.m. and 3 p.m. The time-area closure locations
are:
(1) Kealakekua Bay
(2) H[omacr]naunau Bay
(3) Kauhak[omacr] Bay
[[Page 53851]]
(4) Makako Bay
(5) La Perouse Bay
Exceptions
NMFS is proposing 6 specific exceptions for this proposed
regulation:
(1) Vessel operations necessary to avoid an imminent and serious
threat to a person or vessel;
(2) Activities authorized through a permit or authorization
issued by the National Marine Fisheries Service;
(3) Federal, state, or local government vessels, aircraft,
personnel, and assets when necessary in the course of performing
official duties;
(4) Vessels participating in organized community-based outrigger
canoe races that transit straight through a time-area closure;
(5) Vessels that transit the time-area closure for the sole
purpose of ingress and egress to privately owned shoreline
residential property located immediately adjacent to the time-area
closure; and
(6) Outrigger canoes used for traditional subsistence fishing
intended for personal, family, or community consumption or
traditional use.
Rationale
Proposed Action--Time-Area Closure Regulations
Hawaiian spinner dolphins resident to the MHI are made up of small,
genetically isolated stocks that exhibit a specialized behavioral
ecology that makes them easy to access in coastal environments during
their daytime resting hours. This leaves these resident stocks
vulnerable to human-caused disturbance and its effects, such as habitat
abandonment or declines in reproductive success (Norris et al. 1994,
Andrews et al. 2010, Tyne et al. 2014). In the MHI, dolphin-directed
activities have increased in recent years, and the public's expectation
of close interactions has placed increased pressure on resident stocks
of Hawaiian spinner dolphins and the habitats that support these
stocks, particularly at essential daytime habitats included in the
proposed time-area closures (see Background above). Despite outreach,
guidelines, and current prohibitions, MHI resident Hawaiian spinner
dolphins' natural behaviors are disrupted by human activities (Ostman-
Lind et al. 2004, Danil et al. 2005, Courbis 2004, Courbis and Timmel
2008), and 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).
In other locations globally, intense dolphin-directed human
activities have resulted in changes to dolphin populations' habitat use
and even caused habitat abandonment (Bejder et al. 2006a, 2006b;
Gannier and Petiau 2006; Nature Conservation Sector 2006; Lusseau and
Bejder 2007; Notarbartolo-di-Sciara et al. 2009). For example, in
Samadai Reef, Egypt, spinner dolphins were reported as distressed from
excessive numbers of visitors and people attempting to interact with
the dolphins, which eventually abandoned this preferred resting area
(Notarbartolo-di-Sciara et al. 2009). The spinner dolphins did not
return to the site until after management measures were established
which included prohibiting human entry into the core resting area, and
restricting certain activities in areas surrounding the core resting
area to prevent disturbance (Nature Conservation Sector 2006,
Notarbartolo-di-Sciara et al. 2009).
Studies on Hawai`i Island suggest that dolphins are unlikely to
rest outside of resting bays (Tyne et al. 2015; Lammers 2004; Norris et
al. 1994). If dolphins are displaced from their preferred resting
habitat due to intense human presence in those bays, there is no
guarantee that they will find habitat close to their night time feeding
grounds that has fewer human users or less anthropogenic noise, and
they may not be able to rest. Chronic disturbance of spinner dolphins
at essential daytime habitats could negatively affect the habitat use
or health of resident populations. This may be amplified in the MHI's
resident stocks, which exhibit high site fidelity and restricted gene
flow, because the impacts to multiple individuals' health and fitness
are quickly reflected in the overall fitness of these small populations
(Bejder 2005).
Area closures have been shown to be an effective management tool
for addressing the intensity of wildlife viewing and interaction in
other areas globally (Notarbartolo-di-Sciara et al. 2009, Nature
Conservation Sector 2006). Area closures provide members of the public
with precise boundaries so that they may readily tailor their conduct
accordingly. Additional management in these essential areas are
therefore important to ensure that Hawaiian spinner dolphins are given
sufficient space for groups to engage in deep resting behaviors that
allow dolphins to recuperate from other energy demanding activities,
such as foraging.
In the August 24, 2016 proposed rule initiating a protective
regulation for the Hawaiian spinner dolphin, we considered and
requested public comment on the use and scope of time-area closures as
additional measures to reduce take and increase the protection of
spinner dolphins in their daytime resting habitat. We received numerous
public comments on the use of time-area closures, and while some
comments were opposed to the implementation of time-area closures, the
majority of comments were supportive of the time-area closures.
We are concerned that the swim-with and approach regulation alone
will not sufficiently protect Hawaiian spinner dolphins in their
essential daytime habitats. The swim-with and approach regulation will
likely reduce the frequency of human and spinner dolphin encounters;
however, we believe that effective protection for essential daytime
habitats will be provided by implementing time-area closures in the
five areas identified in the this proposed rule, which uses the
smallest area compatible with the purpose of this regulation to reduce
take of Hawaiian spinner dolphins.
In the August 24, 2016 proposed rule, we stated that we were
considering whether additional management measures may be necessary and
appropriate to protect Hawaiian spinner dolphins from take, especially
in essential daytime habitats that are regularly targeted by humans for
dolphin-directed activities, and we included information about the
time-area closures for public comment (81 FR 57854). In that same
August 24, 2016 proposed rule (81 FR 57854) we stated that we believed
a ``careful phased-in approach'' with the swim-with and approach
prohibition and time-area closures protective regulations would be
warranted, and that by first implementing a swim-with and approach
regulation, we expect to reduce the amount of take. However, since the
2016 proposed rule, there has been a rapid and large expansion of
commercial swim-with tours putting new pressures and increased take on
easily accessible groups of resting Hawaiian spinner dolphins (O'Connor
2009, Impact Assessment 2018). The spinner dolphin essential daytime
habitats are targeted for dolphin-directed activities, and dolphins
that use these areas are being exposed to high levels of disruption on
a year-round, daily basis. Additionally, public comments from this
proposed rule questioned whether the swim-with and approach prohibition
regulation alone would be sufficient to protect spinner dolphins in
their essential daytime resting habitats. These comments and our
responses are included in the final swim-with and approach rule. Based
on the increased impacts to spinner dolphins, and after considering
these additional public comments from the August 24, 2016 proposed
rule, as well scientific literature concluding the need for time-area
closures to provide
[[Page 53852]]
effective protections for Hawaiian spinner dolphins (Heenan et al.
2017, Tyne et al. 2017, Stack et al. 2020), we believe that the swim-
with and approach regulation alone provides insufficient protection for
Hawaiian spinner dolphins using essential daytime habitats.
Accordingly, NMFS has determined that time-area closures are
immediately needed to reduce the take occurring in high intensity
areas.
The proposed mandatory time-area closures are intended to prevent a
range of human activities that occur in close proximity to Hawaiian
spinner dolphins (and constitute take) by prohibiting entry into
specific areas of daytime essential spinner dolphin habitat. The time-
area closures are expected to reduce direct close encounters and
disruptions between spinner dolphins and the intensity of activities
within essential daytime habitats. NMFS considered the appropriate
times for the closures and is proposing a closure time of 6 a.m. to 3
p.m. daily. This time period was chosen in order to encompass the
dolphins' historical resting period, allowing the dolphins to enter the
bay undisturbed and stay throughout the main portion of their daytime
rest period, while also allowing for other human uses to occur (at a
distance greater than 50 yards (45.7 m) in accordance with the swim-
with and approach regulations before 6 a.m. and after 3 p.m.
Historic spinner dolphin resting times (before human interactions
were likely a major factor in the dolphins' resting patterns) were
observed to occur between dawn and dusk (Norris and Dohl 1980). Norris
et al. (1994) noted dolphins entering the bay approximately an hour
after sunrise and staying late into the afternoon. Research indicates
that Hawaiian spinner dolphin resting behavior still occurs throughout
daytime hours (generally 6 a.m. to 6 p.m.) with the highest resting
activity occurring between 10 a.m. and 2 p.m. (Tyne et al. 2015). The
late afternoon hours are considered a time of transition when dolphins
rally together to engage in movements as they are waking from rest,
prior to moving offshore to their foraging grounds (Norris et al.
1994).
Some Hawaiian spinner dolphin groups have been deterred from
entering their essential daytime habitat if human presence in the area
was too high early in the day (Danil et al. 2005). Preventing
disturbance in these habitats during early morning hours is intended to
reduce disruption and disturbance of spinner dolphin behavior during
their arrival to the essential daytime habitat and descent into rest.
To limit some potential impacts to the public from the time-area
closure regulations, we propose exceptions that are designed to allow
for transit into and out of ports, harbors, and restricted channels;
ingress and egress to private residential property adjacent to the
restricted areas; public safety measures; avoidance of penalties when
the animal has closely approached a boat or person; organized outrigger
canoe races and traditional fishing practices in outrigger canoes; and
continuation of essential government and permitted activities (see
Exceptions section above). These exceptions occur infrequently and at
such a low intensity that these actions do not individually, or
cumulatively, raise the threat to take.
The reduction in disturbance to Hawaiian spinner dolphins, as
addressed through each element of the rule as described above, provides
a benefit to the dolphins, as well as to members of the public who
value the dolphins. Reducing threats to the dolphins also supports the
long-term sustainability of the responsible dolphin watching.
Therefore, to reduce the threat of take occurring (including harassment
and disturbance) in important essential day-time habitats, NMFS is
proposing mandatory time area-closures for five selected essential
daytime habitats from 6 a.m. to 3 p.m. daily. We are proposing the
time-area closure regulations at this time, after further consideration
since the August 2016 propose rule, because of the specific added
benefits of implementing time-area closures in conjunction with a swim-
with and approach regulation, extensive public comments in support of
time-area closures, and the best available science supporting time-area
closures as a protective measure.
Geographic Scope (Time-Area Closures)
The proposed regulation would establish mandatory time-area
closures at five nearshore sites (bays) identified as essential daytime
habitat for the Hawaiian spinner dolphin: Kealakekua Bay,
H[omacr]naunau Bay, Kauhak[omacr] Bay, and Makako Bay on the Hawai`i
Island, and La Perouse Bay on Maui. We selected these five areas for
time-area closures using a step-down process. In this approach, we
identified important habitats that might benefit from additional
protection, and then considered additional factors that may promote or
obstruct the effectiveness of the closure (See Appendix A of the DEIS
for more detail). The five proposed sites are essential daytime
habitats where human activities are largely Hawaiian spinner dolphin-
directed and where closures are logistically feasible. Once the sites
were selected for time-area closures, we delineated core areas within
each of the five sites where spinner dolphins are most often engaged in
resting activities. The core areas would be subject to closure, while
leaving other areas of the bays open in order to minimize impacts on
other human activities (e.g., snorkeling, surfing) (Figures 1-5).
The boundaries of the time-area closures were specifically designed
to cover the portion of the bays where the dolphins are known to rest
while leaving other portions open to various activities. These closures
were carefully designed with community input to ensure access to the
bays from, and use of, as much of the shoreline as possible. Two of the
proposed closure areas, (Kauhak[omacr] Bay and La Perouse Bay) (Figures
3 and 5) have been slightly modified from the boundaries described in
the 2016 proposed rule and DEIS to accommodate access by canoe groups,
fisherman, and other water users to areas adjacent to the time-area
closure areas.
Additional Measures Eliminated From Consideration
NMFS did not propose some of the regulatory options suggested in
the DEIS and public comments, including voluntary time-area closures
and implementing time-area closures in other essential daytime habitat
areas throughout the Hawaiian Islands. NMFS does not anticipate that
participation will be high for voluntary time-area closures, because
resource users' motivations and beliefs vary widely within the five
closure areas, and voluntary compliance measures have had limited
success in the past. We expect that compliance with voluntary measures
would be generally lower than compliance with mandatory regulations,
and within the five bays, resource users are diverse and have varying
motivations and beliefs with regard to Hawaiian spinner dolphin
conservation. The lack of a common understanding about the value of
these conservation measures may make it difficult to achieve voluntary
compliance for the closures. Further, inconsistent compliance with
voluntary measures could lead to increased tension between resource
user groups that have conflicting views about Hawaiian spinner dolphin
conservation. Therefore, the intensity of spinner dolphin-directed
activities may still remain high in essential daytime habitats with
voluntary time-area closures in place, and spinner dolphins may receive
no additional benefit. Voluntary time-area closures were,
[[Page 53853]]
therefore, eliminated from consideration, and mandatory time-area
closures are being proposed. Implementing closures of all identified
essential daytime habitats throughout the Hawaiian Islands would create
many restrictions on activities that are not dolphin-directed, obstruct
some harbors, be costly, and require a larger infrastructure to
institute and enforce. For these reasons, the consideration of this
option was eliminated from further consideration in the development of
this proposed rule.
Public Comments
We request that interested persons submit comments, information,
and suggestions concerning this proposed rule during the comment period
(see DATES). We are soliciting comments or suggestions from the public,
other concerned governments and agencies, the scientific community,
industry, or any other interested party concerning this proposed rule.
You may submit your comments and materials concerning this proposal by
any one of several methods (see ADDRESSES). Copies of the proposed rule
and supporting documentation can be found on the NMFS Pacific Islands
Regional website at http://www.fpir.noaa.gov/. We will consider all
comments pertaining to this proposed rule received during the comment
period in preparing the final rule.
References Cited
A complete list of all references cited in this proposed rule 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 EIS and an RIR pursuant to NEPA (42 U.S.C.
4321 et seq.) and Executive Order (E.O.) 12866, to support this
proposed rule. The EIS/RIR contains a full analysis of a No Action
Alternative and five action alternatives. There are a number of
elements that were common to all of the action alternatives analyzed,
and a number of exceptions that would apply to these alternatives. The
mandatory time-area closures proposed in this rule are included as
Alternative 4 in the EIS and along with swim-with and approach
constitute Alternative 4 of the EIS. The EIS/RIR 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. If NMFS
finalizes this rule to implement Alternative 4, a separate ROD will be
issued documenting that decision. NMFS will revisit the analysis in the
FEIS to determine whether any supplementation or modification might be
required.
Regulatory Flexibility Act
Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.)
as amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996, whenever an agency publishes a notice of rulemaking
for any proposed or final rule, it must prepare and make available for
public comment a Regulatory Flexibility Analysis describing the effects
of the rule on small entities, i.e., small businesses, small
organizations, and small government jurisdictions.
Pursuant to the RFA, NMFS prepared the following Initial Regulatory
Flexibility Analysis (IRFA). A description of the action, why it is
being considered, and the legal basis for this action are contained in
the preamble to this proposed rule. This proposed rule does not
duplicate, overlap, or conflict with other Federal rules. The analysis
contains a description of and, where feasible, an estimate of, the
number of small entities to which the proposed rule will apply. The
Small Business Administration (SBA) establishes criteria for defining a
``small entity'' for purposes of the RFA. This IRFA analyzes the
alternatives described in the preamble to the rule and does not address
alternatives previously considered and subsequently dismissed in the
DEIS. There are no record-keeping or reporting requirements associated
with this proposed rule.
Description and Estimate of the Number of Small Entities to Which the
Proposed Rule Applies
There are several types of industries directly affected by this
proposed rulemaking: Swim-with-wild-dolphins tour operators; dolphin
watch tour operators; non-motorized vessel ocean wildlife viewing tour
operators; and generalized commercial boat tour operators. This
analysis uses size standards prescribed by the SBA. Specifically, for
scenic and sightseeing water transportation operators (North American
Industry Classification System Code 487210), the SBA size standard for
a small business is average annual receipts of $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 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 had 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
[[Page 53854]]
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 in 2015: Hawai`i (3),
Maui (21), O`ahu (3), and Kaua`i (11) (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 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 was 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 for 2015,
the estimated numbers of small entities directly affected by the
proposed 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 was collected in 2017, these
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. Restrictions
resulting from the COVID pandemic have significantly impacted the
tourism industry in Hawaii. Following the onset of the COVID pandemic
and restrictions that began in March 2020 to slow the spread of COVID-
19 in the state, a total of 4,564 visitors arrived in Hawaii in April
2020, representing a 99.5 percent decrease from the previous year in
which there were 856,250 visitors in April 2019 (https://www.hawaiitourismauthority.org/media/4635/april-2020-visitor-statistics-press-release-final.pdf). The number of tourists visiting
Hawaii has increased steadily throughout the first half of 2021. In
December 2020 visitor arrivals in Hawaii were down 75.2 percent
compared to the number of visitors in December 2019; however, June 2021
showed an approximate 16.5 percent decrease compared to June 2019
(https://www.hawaiitourismauthority.org/media/7582/june-2021-visitor-statistics-press-release.pdf). With the steady increase in arrivals to
Hawaii during the first half of 2021, we expect tourism to continue to
increase to reach pre-COVID levels.
Economic Impacts to Small Entities Resulting From the Proposed Action
(Mandatory Time-Area Closures in Five Selected Essential Daytime
Habitats)
This proposed rule would prohibit people from using areas closed in
five selected essential daytime resting habitats during specific times.
NMFS believes that this restriction is needed within established
resting areas because research has indicated that Hawaiian spinner
dolphins show high site fidelity, returning from offshore feeding
grounds to the same protected bays and shallow, sandy-bottomed habitats
to rest. Spinner dolphins appear to select these specific locations
because they are located close to the feeding grounds while also
offering protection from predators. Yet, the consistency in which
spinner dolphins return to these resting sites has also encouraged tour
operators to visit these same locations in order to increase the
opportunity for clientele to view or otherwise interact with spinner
dolphins. Because of constant reliance that spinner dolphins have shown
for these locations, NMFS has decided to propose the mandatory time-
area closures within these resting areas.
Businesses that rely on providing activities within locations
potentially subject to time-area closures, would potentially see 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
viewing spinner dolphins at these locations where dolphins can
regularly be seen. The loss in overall revenue to individual businesses
and the industry as a whole that rely on providing access to these bays
for revenue is uncertain.
For generalized tour boat operators with a clientele base that does
not have a specific goal of viewing spinner dolphins, the direct
economic impact of the proposed action is likely to be minimal.
Individuals or companies that conduct kayak tours or other non-
motorized vessel tours in or near time-area closures may see a slight
reduction in revenues relative to their dependence on dolphin-directed
customers. Additionally, due to the closed areas, these tour companies
may choose to offer alternative tour locations that set fewer viewing
restrictions.
The time area closures are expected to affect tour operators that
typically operate within or nearby areas subject to these restrictions.
Dolphin-viewing tour operators using these areas may choose to view
dolphins from outside the closures or otherwise experience increased
costs to travel to alternative sites not subject to closure to allow
more flexibility in viewing the dolphins from the required 50 yard
minimum distance. Similarly, generalized commercial boat tour operators
may continue to use areas or times outside of the closures for their
tours or choose alternative locations that allow greater viewing
flexibility. Those individuals or companies that conduct kayak tours or
other motorized or non-motorized vessel tours in or near time-area
closures may see a slight reduction in revenues if their customer base
is comprised of individuals who wish to view dolphins within those
areas. For those operators who operate within or nearby the bays
subject to time-area closures, the economic impact on generalized
commercial tour boat operators is likely to be minimal while non-
motorized vessel tour operators may see a slight reduction in revenue,
and there should be little to no impact on these operators that
primarily operate outside of the time-area closures.
NMFS concludes that there would be disproportionate impacts to the
operators with dolphin-directed
[[Page 53855]]
activities or other ocean-based recreational entities operating near
the time-area closures from implementation of this proposed action
relative to all other general wildlife viewing tour operators. As a
result, dolphin-watch tour entities may face disproportionate impacts
relative to the generalized commercial boat tour companies, which are
likely to incur few direct economic impacts from the proposed action.
We note that dolphin watch tour entities are all believed to be small
entities, and most of the generalized commercial boat tour companies
are as well, although a few might be considered large entities with
revenues exceeding $8.0 million.
NMFS considered Alternative 1, the No Action Alternative, in
addition to Alternative 4, the mandatory time-area closures.
Alternative 4 would result in a slightly higher direct economic impact
to individual small entities and the dolphin-viewing industry as a
whole, relative to the proposed action compared to the No Action
Alternative, but Alternative 4 would also offer more protection to
spinner dolphins in specific resting habitat. 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 proposed
regulation includes no new collection of information, so further
analysis is not required.
National Historic Preservation Act (NHPA)
The goal of the National Historical Preservation Act (NHPA; 16
U.S.C. 470 et seq.) is to have Federal agencies act as responsible
stewards of our nation's resources when their actions affect historic
properties. Section 106 of the NHPA requires Federal agencies to take
into account the effects of undertakings they carry out, assist, fund,
or permit on historic properties. Federal agencies meet this
requirement by completing the section 106 process set forth in the
implementing regulations, ``Protection of Historic Properties,'' 36 CFR
part 800. The goal of the section 106 process is to identify and
consider historic properties (or sites eligible for listing) that might
be affected by an undertaking, and to attempt to resolve any adverse
effects through consultation. The process provides for participation by
State Historic Preservation Officers, Tribal Historic Preservation
Officers, tribal, state and local governments, Indian tribes and Native
Hawaiian organizations, applicants for Federal assistance, permits, or
licenses, representatives from interested organizations, private
citizens, and other members of the public. Federal agencies and
consulting parties strive to reach agreement on measures to avoid,
minimize, and mitigate adverse effects on historic properties and to
find a balance between project goals and preservation objectives.
Under the NHPA, an ``effect'' means an alteration to the
characteristics of a historic property qualifying it for inclusion or
eligibility for the National Register. In April 2012, NMFS sent a
letter to the Hawaii State Historic Preservation Division (SHPD)
describing the undertaking and requested assistance in identifying
organizations that may have an interest in preserving any historic
properties that may occur in the time-area closures. In July and August
2012, NMFS held scoping meetings on Hawaii Island and Maui to determine
if historic or cultural properties may be affected by the proposed
regulation. In 2013, NMFS conducted interviews with 15 individuals from
three lineal descendants from each of the five bays identified for
time-area closures to assist in providing additional information about
historic properties or practices that may be affected by the proposed
action. By letter to the Hawaii State Historic Preservation Division
dated June 7, 2021, NMFS has determined that this undertaking
constitutes a finding of no historic properties affected (36 CFR
800.4(d)(1)). NMFS has requested review and concurrence with SHPD for
our determination for the undertaking to establish time-area closures
at essential daytime habitats for Hawaiian spinner dolphins. NMFS
invites public comment on this determination.
Coastal Zone Management Act
Section 307(c)(1) of the Federal Coastal Zone Management Act of
1972 requires that all Federal activities that affect any land or water
use or natural resource of the coastal zone be consistent with approved
state coastal zone management programs to the maximum extent
practicable. We have determined that these proposed time-area closures
are consistent to the maximum extent practicable with the enforceable
policies of the approved Coastal Zone Management Program of Hawai`i.
This determination, a copy of this document, and the EIS will be
submitted for review by the Hawai`i Coastal Zone Management Program.
Executive Order 13132, Federalism
E.O. 13132 requires agencies to take into account any federalism
impacts of regulations under development. It includes specific
consultation directives for situations in which a regulation may
preempt state law or impose substantial direct compliance costs on
state and local governments (unless required by statute). As described
in a May 13, 2020 letter NMFS received from the State of Hawai`i DLNR,
the State supports implementing time-area closures in the 5 sites, as
described in the FEIS, to increase protection of Hawaiian spinner
dolphins from harassment and disturbance pursuant to the MMPA. NMFS has
determined that the proposed time-area closures regulation does not
have federalism implications.
Information Quality Act (IQA)
Pursuant to Section 515 of Public Law 106-554 (the Information
Quality Act), this information product has undergone a pre-
dissemination review by NMFS. The signed Pre-dissemination Review and
Documentation Form is on file with the NMFS Pacific Islands Regional
Office (see FOR FURTHER INFORMATION CONTACT).
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, as
amended elsewhere in this issue of the Federal Register, effective
October 28, 2021, is proposed to be amended as follows:
[[Page 53856]]
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. Section 216.20 amended by adding paragraphs (f) through (j) to read
as follows:
Sec. 216.20 Special restrictions for Hawaiian spinner dolphins.
* * * * *
(f) Applicability. The following special restrictions designed to
protect Hawaiian Spinner Dolphins apply:
(1) Hawai`i Island--Kealakekua Bay (Figure 3):
(i) The time-area closure in place between 6 a.m. to 3 p.m. Hawai`i
Standard Time (HST) daily for Kealakekua Bay includes all surface and
subsurface waters between points A, B, C, and D (Figure 3 to Sec.
216.20). Approximate segment lengths A-B and C-D are 1,005 meters (m)
(0.62 miles (mi)), and segment lengths A-D and B-C are 220 m (0.14 mi).
The total surface area of closure is 0.09 square miles (mi\2\). The
latitude/longitude coordinates are:
(A) A--19[deg]28'37'' N, 155[deg]55'15'' W;
(B) B--19[deg]28'54'' N, 155[deg]55'44'' W;
(C) C--19[deg]28'48'' N, 155[deg]55'49'' W;
(D) D--19[deg]28'32'' N, 155[deg]55'19'' W.
(ii) [Reserved]
(2) Hawai`i Island--H[omacr]naunau Bay (Figure 4):
(i) The time-area closure in place between 6 a.m. to 3 p.m. HST
daily for H[omacr]naunau Bay includes all surface and subsurface waters
between points A, B, and C (Figure 4 to Sec. 216.20); the shoreline
boundary is at the mean lower low water line between points A and C.
The approximate segment length of A-B is 440 m (0.27 mi) and the
segment length of B-C is 330 m (0.21 miles). The total surface area of
closure is 0.04 mi\2\. The latitude/longitude coordinates are:
(A) A--19[deg]25'27'' N, 155[deg]54'41'' W;
(B) B--19[deg]25'22'' N, 155[deg]54'57'' W;
(C) C--19[deg]25'31'' N, 155[deg]54'58'' W.
(ii) {Reserved]
(3) Hawai`i Island--Kauhak[omacr] Bay (Figure 5):
(i) The time-area closure in place between 6 a.m. to 3 p.m. HST
daily for Kauhak[omacr] Bay includes all surface and subsurface waters
between points A, B, C, and D (Figure 5 to Sec. 216.20). The
approximate segment length of A-B is 290 m (0.18 mi), the approximate
segment length of A-D is 540 m (0.34 mi), and the segment length of B-C
is 915 m (0.57 miles). The total surface area of closure is 0.06 mi\2\.
The latitude/longitude coordinates are:
(A) A--19[deg]22'44'' N, 155[deg]53'49'' W;
(B) B--19[deg]22'44'' N, 155[deg]53'57'' W;
(C) C--19[deg]22'16'' N, 155[deg]53'49'' W;
(D) D--19[deg]22'30'' N, 155[deg]53'46'' W.
(4) Hawai`i Island--Makako Bay (Figure 6):
(i) The time-area closure in place between 6 a.m. to 3 p.m. HST
daily for Makako Bay includes all surface and subsurface waters between
points A, B, C, and D (Figure 6 to Sec. 216.20); the shoreline
boundary is at the mean lower low water line between points A and D.
The approximate segment length of A-B is 315 m (0.20 mi), the segment
length of B-C is 758 m (0.47 miles) and the segment length of C-D is
372 m (0.23 mi). The total surface area of closure is 0.14 mi\2\. The
latitude/longitude coordinates are:
(A) A--19[deg]44'21'' N, 156[deg]3'16'' W;
(B) B--19[deg]44'25'' N, 156[deg]3'26'' W;
(C) C--19[deg]44'2'' N, 156[deg]3'36'' W;
(D) D--19[deg]43'57'' N, 156[deg]3'23'' W.
(ii) [Reserved]
(5) Maui--La Perouse Bay (Figure 7):
(i) The time-area closure in place between 6 a.m. to 3 p.m. HST
daily for La Perouse Bay includes all surface and subsurface waters
between points A, B, C, and D (Figure 7 to Sec. 216.20). The
approximate segment length of A-B is 1,120 m (0.70 mi), the segment
length of C-D is 1,290 m (0.80 mi), the segment length of A-C is 670 m
(0.42 mi), and the segment length of B-D is 510 m (0.32 mi). The total
surface area of closure is 0.31 mi\2\. The latitude/longitude
coordinates are:
(A) A--20[deg]35'53'' N, 156[deg]25'12'' W;
(B) B--20[deg]35'31'' N, 156[deg]24'50'' W;
(C) C--20[deg]35'35'' N, 156[deg]25'26'' W;
(D) D--20[deg]35'13'' N, 156[deg]24'54'' W.
(ii) All coordinates referenced to The World Geodetic System of
1984 (WGS 84)).
(g) Prohibitions. Unless otherwise excepted in paragraph (c) of
this section, it is unlawful for any person or vessel, during the hours
from 6 a.m. to 3 p.m. (HST), to enter, cause to enter, solicit to
enter, or remain within any of the five time-area closures identified
in paragraph (f) of this section. This prohibition includes all means
of accessing the closed area during the relevant times, including on or
below the surface of the water;
(h) Exceptions. The prohibitions of paragraph (b) of this section
do not apply to:
(1) Vessel operations necessary to avoid an imminent and serious
threat to a person or vessel;
(2) Activities authorized through a permit or authorization issued
by the National Marine Fisheries Service;
(3) Federal, State, or local government vessels, aircraft,
personnel, and assets when necessary in the course of performing
official duties;
(4) Vessels participating in organized community-based outrigger
canoe races that transit straight through a time-area closure;
(5) Vessels that transit straight through the time-area closure for
the sole purpose of ingress and egress to privately owned shoreline
residential property located immediately adjacent to the time-area
closure; and
(6) Outrigger canoes used for traditional subsistence fishing
intended for personal, family, or community consumption or traditional
use;
(i) 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.
(j) Maps of areas for Hawaiian spinner dolphin special
restrictions. Figures 3 through 7 to this section are overview maps.
Table 2 to paragraph (j) provides the corresponding coordinate data for
the time-area closure areas for Hawaiian spinner dolphin special
restrictions.
Table 2 to Paragraph (j)--Coordinates for the Five Time-Area Closures Designated in Hawai`i and Maui
----------------------------------------------------------------------------------------------------------------
Latitude Longitude
----------------------------------------------------------------------------------------------------------------
Coordinates for the Hawai`i Island--Kealakekua Bay time-area closure (Figure 3 to Sec. 216.20)
Hawai`i Island--Kealakekua Bay
----------------------------------------------------------------------------------------------------------------
Figure 1 Label:
A............................................. 19[deg]28'37'' N 155[deg]55'15'' W
B............................................. 19[deg]28'54'' N 155[deg]55'44'' W
C............................................. 19[deg]28'48'' N 155[deg]55'49'' W
[[Page 53857]]
D............................................. 19[deg]28'32'' N 155[deg]55'19'' W
----------------------------------------------------------------------------------------------------------------
Coordinates for the Hawai`i Island--H[omacr]naunau Bay time-area closure (Figure 4 to Sec. 216.20)
Hawai`i Island--H[omacr]naunau Bay
----------------------------------------------------------------------------------------------------------------
Figure 2 Label:
A............................................. 19[deg]25'27'' N 155[deg]54'41'' W
B............................................. 19[deg]25'22'' N 155[deg]54'57'' W
C............................................. 19[deg]25'31'' N 155[deg]54'58'' W
----------------------------------------------------------------------------------------------------------------
Shoreline boundary--Mean low water line between A and C.
----------------------------------------------------------------------------------------------------------------
Coordinates for the Hawai`i Island--Kauhak[omacr] Bay time-area closure (Figure 5 to Sec. 216.20)
Hawai`i Island--Kauhak[omacr] Bay
----------------------------------------------------------------------------------------------------------------
Figure 3 Label:
A............................................. 19[deg]22'44'' N 155[deg]53'49'' W
B............................................. 19[deg]22'44'' N 155[deg]53'57'' W
C............................................. 19[deg]22'16'' N 155[deg]53'49'' W
D............................................. 19[deg]22'30'' N 155[deg]53'46'' W
----------------------------------------------------------------------------------------------------------------
Shoreline boundary--Mean low water line between C and D.
----------------------------------------------------------------------------------------------------------------
Coordinates for the Hawai`i Island--Makako Bay time-area closure (Figure 6 to Sec. 216.20)
Hawai`i Island--Makako Bay
----------------------------------------------------------------------------------------------------------------
Figure 1 Label:
A............................................. 19[deg]44'21'' N 156[deg]3'16'' W
B............................................. 19[deg]44'25.18'' N 156[deg]3'26.07'' W
C............................................. 19[deg]44'2'' N 156[deg]3'36'' W
D............................................. 19[deg]43'57'' N 156[deg]3'23'' W
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Shoreline boundary--Mean low water line between A and D.
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Coordinates for the Maui--La Perouse Bay time-area closure (Figure 7 to Sec. 216.20)
Maui--La Perouse Bay
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Figure 1 Label:
A............................................. 20[deg]35'53'' N 156[deg]25'12'' W
B............................................. 20[deg]35'31'' N 156[deg]24'50'' W
C............................................. 20[deg]35'35'' N 156[deg]25'26'' W
D............................................. 20[deg]35'13'' N 156[deg]24'54'' W
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[FR Doc. 2021-20620 Filed 9-27-21; 8:45 am]
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