Protective Regulations for Hawaiian Spinner Dolphins Under the Marine Mammal Protection Act
Federal Register, Volume 81 Issue 164 (Wednesday, August 24, 2016)
Federal Register Volume 81, Number 164 (Wednesday, August 24, 2016)
Proposed Rules
Pages 57854-57876
From the Federal Register Online via the Government Publishing Office www.gpo.gov
FR Doc No: 2016-20324
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 216
Docket No. 080302361-6677-01
RIN 0648-AU02
Protective Regulations for Hawaiian Spinner Dolphins Under the Marine Mammal Protection Act
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: We, the National Marine Fisheries Service (NMFS), propose regulations under the Marine Mammal Protection Act (MMPA) to prohibit swimming with and approaching a Hawaiian spinner dolphin within 50 yards (45.7 m) (for persons, vessels, and objects), including approach by interception. These proposed regulatory measures are intended to prevent take of Hawaiian spinner dolphins from occurring in marine areas where viewing pressures are most prevalent; prohibitions would apply in waters within 2 nautical miles (nm; 3.7 km) of the Hawaiian Islands and in the waters between the islands of Lanai, Maui, and Kahoolawe. This proposed rule to establish 50-yard swim-with and approach regulations would help ensure public compliance by providing clear notice of prohibited conduct that results in take, including harassment and disturbance.
Although unauthorized take of marine mammals, including harassment of spinner dolphins, already is and continues to be prohibited under the MMPA throughout their range, the purpose of this regulation is to identify and prohibit specific human activities that result in take (including harassment) of spinner dolphins, and thus reduce disturbance and disruption of important Hawaiian spinner dolphin behaviors in areas where human-dolphin interactions are most likely to occur. These proposed regulations would reduce take of Hawaiian spinner dolphins and the impact of human viewing and interaction on these animals in the Main Hawaiian Islands (MHI). We developed this proposed rule after considering comments submitted in response to an Advance Notice of Proposed Rulemaking (ANPR), as well as information received during the public scoping period for the Draft Environmental Impact Statement (DEIS), from community meetings, and from a dedicated scientific research project.
Although not currently part of this proposal, we are also 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. Accordingly, we are soliciting public comment on the proposed swim-with and approach regulations, as well as alternative management options discussed in this rule and in detail in the DEIS.
DATES: Comments must be received no later than 5 p.m. on October 23, 2016.
Public meetings will provide the public with an opportunity to provide comments on any portion of the proposed rule or DEIS. These meetings are scheduled for:
September 7, 2016, 5:30-9:30 p.m. at Konawaena High School Cafeteria, 81-1043 Konawaena School Rd., Kealakekua, HI 96750;
September 8, 2016, 5:30-9:30 p.m. at Kealakehe High School Cafeteria, 74-5000 Puohulihuli St., Kailua Kona, HI 96740;
September 21, 2016, 5:30-9:00 p.m. at Kauai High School Cafeteria, 3577 Lala Rd., Lihue, HI 96766;
September 22, 2016, 5:30-9:00 p.m. at the Hawaiian Islands Humpback Whale National Marine Sanctuary Visitor Center, 726 South Kihei Rd., Kihei, HI 96753;
September 27, 2016, 5:30-9:30 p.m. at Roosevelt High School Dining Hall, 1120 Nehoa Street, Honolulu, HI 96822; and
September 28, 2016, 5:30-9:30 p.m. at Waianae High School Cafeteria, 85-251 Farrington Hwy., Waianae, HI 96792.
ADDRESSES: You may submit comments, information, or data on this document, identified by NOAA-2005-0226, and on the DEIS by either of the following methods:
Electronic Submission: Submit all electronic comments via the Federal
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eRulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-
2005-0226, click the ``Comment Now!'' icon, complete the required fields, and enter or attach your comments.
Mail: Submit written comments to Susan Pultz, Chief, Conservation Planning and Rulemaking Branch, Protected Resources Division, National Marine Fisheries Service, Pacific Islands Regional Office, 1845 Wasp Blvd., Bldg. 176, Honolulu, HI 96818, Attn: Hawaiian Spinner Dolphin Proposed Rule.
Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. We will accept anonymous comments (enter ``N/A'' in the required fields if you wish to remain anonymous).
The Draft Environmental Impact Statement (DEIS) and references can be found online at http://www.fpir.noaa.gov/PRD/prd_spinner_EIS.html. Additionally, copies of the DEIS are available in print at the following libraries:
Hilo Library, 300 Waianuenue Ave., Hilo, HI 96720;
Kailua-Kona Library, 75-138 Hualalai Rd., Kailua Kona, HI 96740;
Kealakekua Library, 81-6619 Mamalahoa Hwy., Kealakekua, HI 96750;
Pahoa Library, 15-3070 Pahoa-Kalapana Rd., Pahoa, HI 96778;
Kihei Library, 35 Waimahaihai St., Kihei, HI 96753;
Lahaina Library, 680 Wharf St., Lahaina, HI 96761;
Lanai Library, 555 Fraser Ave., Lanai City, HI 96763;
Hawaii State Library, 478 S. King St., Honolulu, HI 96813;
Molokai Public Library, 15 Ala Malama, Kaunakakai, HI 96748;
Waianae Library, 85-625 Farrington Hwy., Waianae, HI 96792; and
Lihue Library, 4344 Hardy St., Lihue, HI 96766; or upon request from the Conservation Planning and Rulemaking Branch Chief (see ADDRESSES).
FOR FURTHER INFORMATION CONTACT: Susan Pultz, NMFS, Pacific Islands Region, Chief, Conservation Planning and Rulemaking Branch, 808-725-
5150; or Trevor Spradlin, NMFS, Office of Protected Resources, Acting Chief, Marine Mammal and Sea Turtle Conservation Division, 301-427-
8402.
SUPPLEMENTARY INFORMATION
Background
Viewing wild marine mammals in Hawaii has been a popular recreational activity for both tourists and residents over the past several decades. Historically, most marine mammal viewing focused on humpback whales (Megaptera novaeangliae) during the winter months when the whales migrate from their feeding grounds off the coast of Alaska to Hawaii's warm and protected waters to breed and calve. However, increased viewing has focused on small cetaceans, with a particular emphasis on Hawaiian spinner dolphins (Stenella longirostris), which can be predictably found close to shore in shallow waters throughout the MHI.
The number of commercial operators engaged in wild dolphin viewing has grown dramatically in Hawaii in recent years (O'Connor 2009), putting new pressures on easily accessible groups of resting Hawaiian spinner dolphins. In addition, a number of residents and visitors venture on their own, independent of commercial operators, to view and interact with spinner dolphins. The expectation for close interactions with wild dolphins has been encouraged by some operators and various media outlets, which routinely contradict established wildlife viewing guidelines by promoting close vessel or in-water encounters with the dolphins.
We have received many complaints that spinner dolphins are being routinely disturbed by people attempting to closely approach and interact with the dolphins by boat or other watercraft (e.g., kayaks), or in the water (e.g., snorkel or ``swim-with-wild-dolphins'' activities). In addition, concerns over human-dolphin interactions have been expressed by officials from the Hawaii Department of Land and Natural Resources (DLNR) and the U.S. Marine Mammal Commission (MMC), as well as various members of the public, including representatives of the Native Hawaiian community, scientific researchers, wildlife conservation organizations, public display organizations, and some commercial tour operators.
In 2010, we recognized five island-associated stocks and one pelagic stock of Hawaiian spinner dolphins in our annual Stock Assessment Report, identifying genetic distinctions and site fidelity differences as reasons to separately manage stocks found in waters surrounding the Hawaiian Islands (Carretta et al. 2010). Three of the five island-associated stocks (the Kauai/Niihau stock, Oahu/4 Islands (i.e., Maui County) stock, and Hawaii Island stock) are found near the MHI and are considered resident stocks. These three stocks reside in waters surrounding their namesake islands out to approximately 10 nm (18.5 km) (Hill et al. 2010), and population estimates for each stock are relatively small. Recent research indicates that the Hawaii Island stock, which is thought to be the largest stock, has an estimated 631 individuals (Coefficient of Variation (CV) = 0.09) (Tyne et al. 2014, Carretta et al. 2016). Data for other stocks in the MHI is limited; however, using the best available information, the Kauai/Niihau and Oahu/4 Islands stocks are estimated to be around 601 (CV = 0.20) and 355 (CV = 0.09) individuals, respectively (Carretta et al. 2016).
Island-associated spinner dolphins, such as those found in the MHI, have complex social structures and behavioral patterns linked to specific habitats that support their high energetic demands. The rigid, cyclical, and patterned behavior of a Hawaiian spinner dolphin's day is well documented from decades of scientific research on spinner dolphins off the Kona coast on the island of Hawaii (Norris and Dohl 1980, Norris et al. 1994). The daily pattern of Hawaiian spinner dolphins has been characterized as ``working the night shift,'' because the energetically demanding task of foraging is accomplished nightly when spinner dolphins move offshore in large groups to feed. Spinner dolphins feed on fish, shrimp, and squid found in the mesopelagic boundary community, part of the pelagic zone that extends from a depth of 200 to 1,000 m (~660 to 3,300 feet) below the ocean surface. Spinner dolphins maximize their foraging time by actively moving with, or tracking, the horizontal migration of the mesopelagic boundary community throughout the night, as it moves inshore until midnight and then offshore around sunrise (Benoit-Bird and Au 2003). Spinner dolphins are acoustically very active during foraging activities (Norris et al. 1994), working cooperatively in large groups using coordinated movements to maximize foraging potential (Benoit-Bird 2004).
During the day, spinner dolphins return in smaller groups to areas closer to shore to socialize, nurture their young, and rest in preparation for nightly foraging (Norris et al. 1994). These smaller groups visit specific habitats that are located along the coastlines of the MHI. These preferred daytime habitats of spinner dolphins are
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areas that provide space with optimal environmental conditions for resting, socializing, and nurturing young, and are referred to hereafter as ``essential daytime habitats.'' Spinner dolphins' essential daytime habitats are located close to offshore feeding areas, which minimizes the energetic cost of nightly travel to these areas (Norris et al. 1994, Thorne et al. 2012). Additionally, essential daytime habitats have large patches of sand bottom habitat, which increases the dolphins' ability to visually (instead of acoustically) detect predators while resting, and thus minimizes the energetic costs of vigilance (Norris et al. 1994). Throughout the day, spinner dolphins take advantage of the physical characteristics of essential daytime habitats to engage in specific patterned resting behaviors to recuperate between foraging bouts. The physical characteristics of these essential daytime habitats, combined with specific patterned resting behaviors, play an important role in supporting the dolphins' activity and energetic budgets.
Essential daytime habitats have been targeted by commercial operators and individuals interested in viewing or interacting with Hawaiian spinner dolphins because encounters with dolphins in these areas are virtually guaranteed. At some locations, up to 13 tour boats have been observed jockeying for position on a single dolphin group, with up to 60 snorkelers in the water (Heenehan et al. 2014). Apart from commercial tour operations, people also swim, kayak, or paddle into essential daytime habitats to seek interactions with the dolphins (Sepez 2006). In addition, organized retreats centered on dolphin encounters, dolphin-assisted therapy, and dolphin-associated spiritual practices have flourished in certain areas, further increasing the intensity of dolphin-directed activities in nearshore areas and especially within essential daytime habitats (Sepez 2006).
There is a growing body of scientific evidence documenting the effects of dolphin-directed activities on spinner dolphins, especially activities that involve close approaches by humans. Peer-reviewed scientific literature documents disturbance of individual spinner dolphins as well as changes to spinner dolphin group behavioral patterns. Individual dolphin responses to these activities vary, and in some cases may not be apparent to an observer (e.g., elevated heart rates or increased watchfulness). However, discernable responses may include aerial displays when closely approached by vessels and swimmers (Forest 2001, Courbis and Timmel 2008); avoidance behaviors, including moving around and away from swimmers and vessels, or leaving the area in response to human pursuit (Ostman-Lind et al. 2004, Courbis 2004, Courbis and Timmel 2008); and aggressive behaviors directed at people, including charging or threat displays (Norris et al. 1985, Norris et al. 1994).
Effects have been documented in the form of changes over time to spinner dolphins' behavioral patterns in essential daytime habitats, where spinner dolphins' behavioral patterns are easily observed. Courbis and Timmel (2008) reported differences in peak aerial activity throughout the day in comparison with earlier studies (Forrest 2001) and noted that dolphins may have reduced aerial behavior when entering and exiting bays to avoid human notice and approaches. Timmel et al. (2008) noted the dolphins' direction of travel altered more frequently as the number of swimmers and/or vessels near to them increased. Symons (2013) found that spinner dolphins are less likely to rest when swimmers are present within 150 m. Numerous studies report changes in dolphin residence time within essential daytime habitats compared to earlier studies (Courbis 2004, Courbis and Timmel 2008, Ostman-Lind 2007, Forest 2001). In addition, human activities within essential daytime habitats may be affecting where spinner dolphins engage in their daytime behaviors within these areas. Courbis and Timmel (2008) reported changes in the location of resting spots within Kealakekua Bay from previous studies by Doty (1968) and Norris and Dohl (1980), and warned that changes in locations within the bay could be a precursor to abandonment of the bay with future increases in traffic.
Hawaiian spinner dolphin studies off the island of Oahu also demonstrate the effects of swimmers on dolphins' daily resting behavioral patterns. As the number of swimmers increased in an essential daytime habitat off the west coast of Oahu, the dolphins departed the area at earlier times during the day, possibly indicating reduced rest periods in response to swimmer presence (Danil et al. 2005). Additionally, Danil et al. (2005) noted that on several occasions, smaller spinner dolphin groups (
