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

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-hawaiianspinner-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.

Public Comments
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 recordkeeping or reporting requirements associated with this proposed rule.

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-hawaiianspinner-dolphins, or at www.regulations.gov, and is available upon request from the NMFS office in Honolulu, Hawaii 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
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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
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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 Hawaii. 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 Hawaii Island reportedly provided direct Hawaiian spinner dolphin interaction in 2017. No numbers were provided for spiritual retreat businesses operating on Oahu, Maui, and Kauai.
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 swimwith-dolphins tour companies operated on Hawaii and seven operated on Oahu. 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
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