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Federal Register / Vol. 86, No. 185 / Tuesday, September 28, 2021 / Proposed Rules the attendees, the ANPR, public comments, and background materials are provided at https
www.fisheries.noaa.gov/resource/
document/hawaiian-spinner-dolphindraft-environmental-impact-statementand-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 projects 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, Honaunau Bay, Kauhako Bay, and Makako Bay and nearshore waters of Hawaii Island began in August 2010 and was completed in May 2013. Results from this study provided robust population estimates for the Hawaii Island stock see Background, as well as additional information about spinner dolphin habitat use and the pressure 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 nonregulatory alternatives in the DEIS. We analyzed the environmental effects of
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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 Hawaii, Oahu, Maui, and Kauai, 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 Kamaaina United to ina KUPAFriends of Protect the A
Hookena Beach Park Kauhako 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 OConnor 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

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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, Honaunau Bay, Kauhako Bay Hookena, and Makako Bay on Hawaii 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. 1382a and 102 16 U.S.C.
1372.
Scope and Applicability Applications to all Hawaiian Spinner Dolphins The proposed rules 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
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