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Federal Register / Vol. 86, No. 185 / Tuesday, September 28, 2021 / Proposed Rules 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 ActionTime-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 publics 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 OstmanLind 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
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al. 2006a, 2006b; Gannier and Petiau 2006; Nature Conservation Sector 2006;
Lusseau and Bejder 2007; Notarbartolodi-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 Notarbartolodi-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, Notarbartolodi-Sciara et al. 2009.
Studies on Hawaii 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 MHIs 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 timearea 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
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closures, and while some comments were opposed to the implementation of time-area closures, the majority of comments were supportive of the timearea 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 timearea 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 OConnor 2009, Impact Assessment 2018. The spinner dolphin essential daytime habitats are targeted for dolphindirected activities, and dolphins that use these areas are being exposed to high levels of disruption on a yearround, 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
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