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Federal Register / Vol. 86, No. 185 / Tuesday, September 28, 2021 / Proposed Rules
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.

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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, Honaunau Bay, Kauhako Bay, and Makako Bay on the Hawaii 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
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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 15.
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, Kauhako 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,
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