[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

[[Page 53848]]

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
----------------------------------------------------------------------------------------------------------------
Shoreline boundary--Mean low water line between A and D.
----------------------------------------------------------------------------------------------------------------
             Coordinates for the Maui--La Perouse Bay time-area closure (Figure 7 to Sec.   216.20)
                                              Maui--La Perouse Bay
----------------------------------------------------------------------------------------------------------------
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]
BILLING CODE 3510-22-C