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Federal Register / Vol. 86, No. 185 / Tuesday, September 28, 2021 / Proposed Rules
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 timearea 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 swimwith 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 Hawaii Island and Maui in the proposed rule published on August 24, 2016 81 FR

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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 timearea 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 Hawaii Island, Kealakekua Bay, Honaunau Bay, Kauhako 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 swimwith 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 timearea 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
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complete closure of all known spinner dolphin resting areas in the MHI.
During the ANPR and the NOI
comment periods, five public scoping meetings were held on the islands of Kauai, Oahu, Maui, and Hawaii, and oral statements were taken at each meeting. NMFS received a total of 4,641
public comments in response to the ANPR and the NOI this includes all emails, letters, and public testimonies.
Comments were submitted by concerned citizens, tour operators, scientific researchers, conservation and education groups, and Federal, state, and other government entities.
Comments received through both of the public comment periods 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
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