Protecting Spinner Dolphins in the Main Hawaiian Islands From Human Activities that Cause “Take,” as Defined in the Marine Mammal Protection Act and Its Implementing Regulations, or To Otherwise Adversely Affect the Dolphins, 73426-73429 [05-23928]
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Federal Register / Vol. 70, No. 237 / Monday, December 12, 2005 / Proposed Rules
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[FR Doc. 05–23647 Filed 12–9–05; 8:45 am]
BILLING CODE 3110–01–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 216
[Docket No. 051110296–5296–01; I.D.
102405A]
RIN 0648–AU02
Protecting Spinner Dolphins in the
Main Hawaiian Islands From Human
Activities that Cause ‘‘Take,’’ as
Defined in the Marine Mammal
Protection Act and Its Implementing
Regulations, or To Otherwise
Adversely Affect the Dolphins
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Advance notice of proposed
rulemaking.
AGENCY:
SUMMARY: NMFS is considering whether
to propose regulations to protect wild
spinner dolphins (Stenella longirostris)
in the main Hawaiian Islands from
‘‘take,’’ as defined in the Marine
Mammal Protection Act (MMPA) and its
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implementing regulations, or to
otherwise adversely affect the dolphins.
The scope of this advance notice of
proposed rulemaking (ANPR)
encompasses the activities of any person
or conveyance that may result in the
unauthorized taking of spinner dolphins
and/or that may diminish the value to
the dolphins of habitat routinely used
by them for resting and/or that may
cause detrimental individual-level and
population-level impacts. The proposed
regulation would apply only to the main
Hawaiian Islands and only to spinner
dolphins. NMFS requests comments on
whether—and if so, what type of—
conservation measures, regulations, and,
if necessary, other measures would be
appropriate to protect spinner dolphins
in the main Hawaiian Islands from the
effects of these activities.
DATES: Comments must be received at
the appropriate address (see ADDRESSES)
no later than January 11, 2006.
ADDRESSES: You may submit comments
by any of the following methods:
• E-mail: 0648–
AU02.NOA@noaa.gov. Include in the
subject line the following document
identifier: 0648–AU02–NOA.
• Federal e-rulemaking Portal: https://
www.regulations.gov.
• Mail: Marine Mammal Branch
Chief, Protected Resources Division,
Pacific Islands Regional Office, National
Marine Fisheries Service, 1601
Kapiolani Boulevard, Suite 1110,
Honolulu, HI 96814.
FOR FURTHER INFORMATION CONTACT:
Chris Yates or Jennifer Sepez, Pacific
Islands Regional Office, 808–944–2105;
or Trevor Spradlin, Office of Protected
Resources, 301–713–2322.
SUPPLEMENTARY INFORMATION:
Background
Viewing wild marine mammals in
Hawaii is a popular recreational activity
for both tourists and residents alike. In
the past, most recreational 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, in recent years, recreational
activities have increasingly focused on
viewing small cetaceans, with a
particular emphasis on spinner
dolphins (Stenella longirostris), which
are routinely found close to shore in
shallow coves and bays and other areas
throughout the main Hawaiian Islands.
NMFS is concerned that some of these
activities cause unauthorized taking of
dolphins, diminish the value to the
dolphins of habitat routinely used by
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them for resting, and cause detrimental
individual-level and population-level
impacts.
The biology and behavior of Hawaiian
spinner dolphins has been well
documented in the scientific literature.
Hawaiian spinner dolphins are
identified as a race of Pacific spinner
dolphins found in and around the
Hawaiian Islands, including both the
main Islands of Hawaii and the
Northwestern Hawaiian Islands (Norris
et al. 1994, page 17). Hawaiian spinner
dolphins routinely utilize shallow coves
and bays and other areas close to shore
during the day to rest, care for their
young and avoid predators before
traveling to deeper water at night to
¨
hunt for food (Wursig et al. 1994, Norris
1994). As the dolphins begin or end
their resting period, they engage in
aerial spinning and leaping behaviors
¨
that are noticeable from shore (Wursig et
al. 1994). However, when they are in a
period of deep rest, their behavior
consists of synchronous dives and
extended periods swimming in quiet
formation along the shallow bottom
(see: Norris and Dohl 1980, Norris et al.
¨
1985, Wells and Norris 1994, Wursig et
al. 1994).
Scientific research studies have
documented human disturbance of
Hawaiian spinner dolphins during their
resting periods along the west coast of
the Big Island of Hawaii, most notably
in and around Kealakekua Bay. Norris
and Dohl (1980) noted that ‘‘cruise
boats’’ would seek out and run through
groups of spinner dolphins during an
initial study of the dolphins in 1970,
and in follow up research, Norris et al.
(1985) found that spinner dolphins were
particularly sensitive to disturbance
during the early stage of their entry into
the bay. Forest (2001) compared
sightings records of spinner dolphins in
Kealakekua Bay from 1979–1980 and
1993–1994, and found that the dolphins
were utilizing the bay and engaging in
aerial behaviors less frequently than
before, and suggested increasing human
disturbance as a cause. Courbis (2004)
reported high levels of vessel and
swimmer traffic in Kealakekua Bay and
neighboring Honaunau Bay and
Kauhako Bay, and found that spinner
dolphins exhibited decreased aerial
activity during their entry and exit into
Kealakekua Bay when compared to
previous studies, as well as increased
aerial activity during mid-day when
dolphins typically rest. Spinner
dolphins in Kealakekua Bay also
appeared to have shifted their preferred
resting area in response to vessel and
swimmer presence. In Kauhako Bay,
dolphins were documented avoiding
swimmers and leaving the bay in
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response to being followed, while in
Honaunau Bay, dolphins were
documented to spend more time at the
mouth of the bay or in deep water at the
center of the bay when swimmers were
¨
present. Ostman-Lind et al. (2004)
found that human disturbance was
highest in mid-morning when spinner
dolphins begin their rest period, and
that secondary resting areas with less
vessel traffic were utilized more than
had been previously observed, and
suggested the dolphins have been
displaced from their primary resting
areas. In addition, Ross (2001) found
that Hawaiian spinner dolphins around
Midway Atoll in the Northwest
Hawaiian Islands exhibited short-term
behavioral changes in response to
vessels at distances of 300 meters and
100 meters.
NMFS is concerned that displacement
from primary resting areas has the
potential for adverse impacts on the
dolphins for a number of reasons,
including that these secondary resting
areas may not provide for the same
quality of rest and protection that
primary areas do and that the activities
that displaced the dolphins from
primary areas are likely to follow them.
NMFS scientists are concerned about
the potential for individual-level and
population-level effects because of
anthropogenic activities. NMFS has
received an increasing number of
complaints from constituents alleging
that spinner dolphins in the main
Hawaiian Islands are routinely being
disturbed by people attempting to
closely approach and interact with the
dolphins by vessel (motor powered or
kayak) or in the water (‘‘swim-withwild-dolphin’’ activities). Concerns
have been expressed by officials from
the Hawaii Department of Land and
Natural Resources and the U.S. Marine
Mammal Commission, as well as
representatives of the Native Hawaiian
community, scientific researchers,
wildlife conservation organizations,
public display organizations, and some
commercial tour operators.
Additionally, there are growing public
safety concerns associated with humandolphin interactions. Although there are
no known reports of Hawaiian spinner
dolphins injuring humans, people have
been seriously injured while trying to
interact with various species of marine
mammals in the wild, including species
of dolphins (Webb 1978, Shane et al.
1993, NMFS 1994, Wilson 1994, Orams
et al. 1996, Seideman 1997, Christie
1998, Santos 1997, Samuels and Bejder
1998, Samuels and Bejder 2004,
Samuels et al. 2000). In addition,
researchers have documented Hawaiian
spinner dolphins behaving aggressively
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towards people in the water by charging
and making threat displays (Norris et al.
1985, Johnson and Norris 1994). There
is also a potential risk of shark attack,
since sharks prey upon spinner
dolphins and often are seen with them
along the coast (Johnson and Norris
1994, Norris 1994). In June 2003, an
adult male swimmer was attacked by a
shark while trying to swim with spinner
dolphins off the coast of Oahu. The man
suffered injuries to his leg, which
required medical attention (Hoover and
Espanol 2003).
NMFS encourages members of the
public to view and enjoy spinner
dolphins in the main Hawaiian Islands
in ways that are consistent with the
provisions of the MMPA, and supports
responsible wildlife viewing as
articulated in agency guidelines (see
Web citations below). NMFS is
concerned that some activities occurring
in Hawaii are not in accordance with
these guidelines, and cause
unauthorized taking of spinner
dolphins, diminish the value to the
dolphins of habitat routinely used by
them for resting, or cause detrimental
individual-level and population-level
impacts to these dolphins.
Current MMPA Prohibitions and NMFS
Guidelines and Regulations
The Marine Mammal Protection Act,
16 U.S.C. 1361 et seq., generally
prohibits the ‘‘take’’ of marine
mammals. Section 3(13) of the MMPA
defines the term ‘‘take’’ as ‘‘to harass,
hunt, capture, or kill, or attempt to
harass, hunt, capture, or kill any marine
mammal.’’ Except with respect to
military readiness activities and certain
scientific research activities, the MMPA
defines the term ‘‘harassment’’ as ‘‘any
act of pursuit, torment, or annoyance
which—(i) has the potential to injure a
marine mammal or marine mammal
stock in the wild, [Level A harassment];
or (ii) has the potential to disturb a
marine mammal or marine mammal
stock in the wild by causing disruption
of behavioral patterns, including, but
not limited to, migration, breathing,
nursing, breeding, feeding, or sheltering
[Level B harassment].’’
In addition, NMFS regulations
implementing the MMPA further
describe the term ‘‘take’’ to include:
‘‘the negligent or intentional operation
of an aircraft or vessel, or the doing of
any other negligent or intentional act
which results in disturbing or molesting
a marine mammal; and feeding or
attempting to feed a marine mammal in
the wild’’ (50 CFR 216.3). The MMPA
provides limited exceptions to the
prohibition on ‘‘take’’ for activities such
as scientific research, public display,
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and incidental take in commercial
fisheries. Such activities require a
permit or authorization, which may be
issued only after a thorough agency
review.
Although Hawaiian spinner dolphins
are not a listed species under the
Endangered Species Act (ESA), there are
specific regulations for some ESA-listed
marine mammals which address
interactions with humans in the wild.
These regulations prohibit approaches
within 3 nautical miles (5.5 km) of
particular Steller sea lion rookeries in
the Aleutian Islands and Gulf of Alaska
(50 CFR 223.202), approaches closer
than 100 yards (91.4 m) to humpback
whales in Hawaii, approaches closer
than 100 yards (91.4 m) to humpback
whales in Alaska, and approaches closer
than 500 yards (460 m) to right whales
in the North Atlantic (50 CFR 224.103).
Documentation for these latter two
regulations (66 FR 29502, May 31, 2001,
and 62 FR 6729, February 13, 1997)
cites rulemaking authority under both
the ESA and the MMPA.
For both ESA-listed species and for
MMPA-protected species, wildlife
viewing must be conducted in a manner
that does not cause ‘‘take.’’ This is
consistent with the philosophy of
responsible wildlife viewing advocated
by many federal agencies to
unobtrusively observe the natural
behavior of wild animals in their
habitats without causing disturbance
(see https://www.watchablewildlife.org/
and https://www.watchablewildlife.org/
publications/marine_wild
life_viewing_guidelines.htm).
Each of the six NMFS Regions has
developed recommended viewing
guidelines to educate the general public
on how to responsibly view marine
mammals in the wild and avoid causing
a ‘‘take.’’ These guidelines are available
on line at: https://www.nmfs.noaa.gov/
prot_res/MMWatch/MMViewing.html.
The guidelines developed by the NMFS
Pacific Islands Regional Office for
marine mammals in Hawaii are also
available at: https://www.nmfs.noaa.gov/
prot_res/MMWatch/hawaii.htm. The
Regional Office viewing guidelines for
Hawaii recommend that people view
wild dolphins from a safe distance of at
least 50 yards (45 m) and refrain from
trying to chase, closely approach,
surround, swim with, or touch the
animals. To support the guidelines in
Hawaii, NMFS has partnered with the
State of Hawaii and the Hawaiian
Islands Humpback Whale National
Marine Sanctuary over the past several
years to promote safe and responsible
wildlife viewing practices through the
development of outreach materials,
training workshops and public service
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announcements. NMFS’ education and
outreach efforts have also been
supported by a partnership with the
Watchable Wildlife program, a
consortium of Federal and State wildlife
agencies and wildlife interest groups
that encourages passive viewing of
wildlife from a distance for the safety
and well-being of both animals and
people (Duda 1995, Oberbillig 2000).
However, despite the regulations,
guidelines and outreach efforts,
interactions through swim-withdolphins programs continue to occur
and are increasing in Hawaii.
Advertisements on the Internet and in
local media in Hawaii promote activities
that contradict the NMFS guidelines.
NMFS has received letters from the
Marine Mammal Commission (MMC),
members of the scientific research
community, environmental groups, the
public display community, and
members of the general public
expressing the view that swimming with
and other types of interactions with
wild marine mammals have the
potential to harass and/or disturb the
animals by causing injury or disruption
of normal behavior patterns. NMFS has
also received inquiries from members of
the public and commercial tour
operators requesting clarification on
NMFS’ policy on these matters.
The MMC sponsored a literature
review by Samuels et al. (2000) to
compile information regarding human
interactions with wild dolphins. Upon
review of the report, the MMC stated:
The information and analyses in the report
provide compelling evidence that any efforts
to interact intentionally with dolphins in the
wild are likely to result in at least Level B
harassment and, in some cases, could result
in the death or injury of both people and
marine mammals.
The MMC subsequently recommended
that NMFS ‘‘promulgate regulations
specifying that any activity intended to
enable in-water interactions between
humans and dolphins in the wild
constitutes a taking and is prohibited’’
(Letter from MMC to NMFS dated May
23, 2000).
In 2002, NMFS published an ANPR
requesting comments from the public on
what types of regulations and other
measures would be appropriate to
prevent harassment of marine mammals
in the wild caused by human activities
directed at the animals (67 FR 4379,
January 30, 2002). The 2002 ANPR was
national in scope and covered all
species of marine mammals under
NMFS’ jurisdiction (whales, dolphins,
porpoises, seals and sea lions), and
requested comments on ways to address
concerns about the public and
commercial operators closely
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approaching, swimming with, touching
or otherwise interacting with marine
mammals in the wild. Several potential
options were proposed for consideration
and comment, including: (1) Codifying
the current NMFS Regional marine
mammal viewing guidelines into
regulations; (2) codifying the guidelines
into regulations with additional
improvements; (3) establishing
minimum approach rules similar to the
ones under the ESA regulations for
humpback whales in Hawaii and Alaska
and North Atlantic right whales; and (4)
restricting activities of concern similar
to the MMPA regulation prohibiting the
public from feeding or attempting to
feed wild marine mammals. The 2002
ANPR specifically mentioned the
concerns about Hawaiian spinner
dolphins and increasing human
interactions. Over 500 comments were
received on the 2002 ANPR regarding
human interactions with wild marine
mammals in United States waters and
along the nation’s coastlines. A portion
of the comments specifically addressed
Hawaii concerns and recommended a
wide spectrum of measures from no
action to restricting swim with activities
through regulations or time-area
closures.
Request for Comments
NMFS is requesting comments on
whether —and if so, what type of—
conservation measures, regulations, and,
if necessary, other measures would be
appropriate to protect spinner dolphins
in the main Hawaiian Islands from
human activities that result in the
unauthorized taking of spinner dolphins
and/or that may diminish the value to
the dolphins of habitat routinely used
by them for resting and/or that may
cause detrimental individual-level and
population-level impacts. If a rule were
proposed, the agency could further
delineate the definition of ‘‘take’’ in the
Code of Federal Regulations for
situations involving Hawaiian spinner
dolphins, focusing on the take of
individual dolphins. The agency could
also design regulations to address
possible adverse effects at the
population level, where repeated
intrusions into resting areas
cumulatively have the potential to
disrupt the behavioral patterns within
the population of dolphins and/or have
the potential to injure the stock as a
whole through displacement of animals
from their preferred habitat. The agency
could also act to protect essential
habitats, including mating grounds and
areas of similar significance to the
dolphins.
NMFS offers several possible options
for consideration and comment:
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Codify the current NMFS Pacific
Islands Regional Office’s marine
mammal viewing guidelines—Codifying
the guidelines as regulations would
make them requirements rather than
recommendations, and would provide
for enforcement of these provisions and
penalties for violations.
Codify the current NMFS Pacific
Islands Regional Office’s marine
mammal viewing guidelines with
improvements—The current guidelines
could be revised to more clearly address
specific activities of concern, such as
those discussed below, and then
codified as enforceable regulations.
Establish minimum approach rule—
Similar to the minimum approach rules
for humpback whales in Hawaii and
Alaska, and right whales in the North
Atlantic (50 CFR 224.103; 66 FR 29502,
May 31, 2001), a limit could be
established by regulation to
accommodate a reasonable level of
dolphin viewing opportunities while
minimizing the potential detrimental
impacts from humans. If establishing a
minimum approach rule is appropriate,
then NMFS would have to consider
whether the current guideline of 50
yards is appropriate for this regulation.
NMFS would consider exceptions for
situations in which marine mammals
approach vessels or humans as well as
other situations in which approach is
not reasonably avoidable.
Restrict individual activities of
concern—Similar to the prohibition on
feeding wild marine mammals (50 CFR
216.3), a regulation further delineating
the definition of ‘‘take’’ for the case of
Hawaiian spinner dolphins could clarify
which specific activities are prohibited.
Such activities could include actions
engaged in by individuals, e.g.,
swimming with, touching (either
directly or with an object), or otherwise
acting on or with a Hawaiian spinner
dolphin in the wild. It could also
include operating a vessel or providing
other platforms from which such
interactions are conducted or supported.
Restrict vessel activities of concern—
Activities of concern engaged in by
vessels could also be prohibited through
a regulation further delineating the
definition of ‘‘take’’ for the case of
Hawaiian spinner dolphins. These
activities of concern could include
actions engaged in by vessels, e.g., the
use of vessels to herd dolphins,
surround dolphins, or otherwise prevent
a reasonable means of escape, to
‘‘leapfrog’’ dolphins by positioning in
their predictable paths, separate calves
from attending adults, approach at or
above specified speeds, or to ‘‘run
through’’ a group of dolphins in order
to elicit bow-wake riding.
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Establish time-area closures in resting
bays—Similar to the prohibitions used
to protect fish stocks or habitat, a
regulation restricting human access to
specific areas could be established.
These restrictions could be for full-time,
or limited to certain times of the day
when dolphins have the most potential
to be present. They could: restrict all
human entry to the area; restrict only
specified types of activities; restrict
human access to an entire area or a
particular zone within an area; or a
closure could be any combination of the
above parameters.
NMFS also recognizes that the most
appropriate regulations may be some
combination of the above measures, or
that additional possibilities may exist.
The geographic scope of these
regulations, if proposed, would be the
near shore habitats off the main
Hawaiian Islands, including the Big
Island of Hawaii, Maui, Kohoolawe,
Lanai, Molokai, Oahu, Kauai, and
Niihau, and their nearby land or landlike masses (e.g., Molokini, Kaohiakipu,
etc.). These are the locations where
activities of concern are concentrated.
The Northwestern Hawaiian Islands
(NWHI) do not currently have a
significant level of activities of concern,
and NMFS feels the remoteness of these
islands makes it unlikely that they will
develop at significant levels in the
future. In addition, a marine sanctuary
is contemplated which would
encompass the NWHI. NMFS requests
comments on the geographic scope of
this ANPR, including whether the
agency should be considering a larger or
smaller overall geographic scope to
protect Hawaiian spinner dolphins.
NMFS invites comment on the above
options and other possible measures
that will help the agency decide what
type of regulations, if any, would be
most appropriate to consider for
protecting spinner dolphins in the main
Hawaiian Islands from human activities
that cause unauthorized taking of
spinner dolphins, diminish the value to
the dolphins of habitat routinely used
by them for resting, or cause detrimental
individual-level and population-level
impacts to these dolphins.
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Classification
This advance notice of proposed
rulemaking was determined to be
significant for purposes of E.O. 12866.
Dated: December 6, 2005.
William T. Hogarth,
Assistant Administrator for Fisheries,
National Marine Fisheries Service.
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trouble. Audubon, 99:76–82.
Shane, S.H., L. Tepley and L. Costello.
1993. Life threatening contact between a
woman and a pilot whale captured on film.
Marine Mammal Science, 9(3):331–336.
Webb, N.G. 1978. Women and children
abducted by a wild but sociable adult male
bottlenose dolphin. Carnivore, 1(2):89–94.
Wells, R.S. and K.S. Norris. 1994. The
¨
island habitat. In K.S. Norris, B. Wursig, R.S.
¨
Wells and M. Wursig (Eds.), The Hawaiian
Spinner Dolphin. University of California
Press, Berkeley. Pp. 31–53.
Wilson, B. 1994. Review of dolphin
management at Monkey Mia. Department of
Conservation and Land Management, Perth,
Western Australia. 37 pp.
¨
Wursig, B., R.S. Wells, K.S. Norris and M.
¨
Wursig. 1994. A spinner dolphin’s day. In
¨
K.S. Norris, B. Wursig, R.S. Wells and M.
¨
Wursig (Eds.), The Hawaiian Spinner
Dolphin. University of California Press,
Berkeley. Pp. 65–102.
[FR Doc. 05–23928 Filed 12–9–05; 8:45 am]
BILLING CODE 3510–22–P
E:\FR\FM\12DEP1.SGM
12DEP1
Agencies
[Federal Register Volume 70, Number 237 (Monday, December 12, 2005)]
[Proposed Rules]
[Pages 73426-73429]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-23928]
=======================================================================
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 216
[Docket No. 051110296-5296-01; I.D. 102405A]
RIN 0648-AU02
Protecting Spinner Dolphins in the Main Hawaiian Islands From
Human Activities that Cause ``Take,'' as Defined in the Marine Mammal
Protection Act and Its Implementing Regulations, or To Otherwise
Adversely Affect the Dolphins
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Advance notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: NMFS is considering whether to propose regulations to protect
wild spinner dolphins (Stenella longirostris) in the main Hawaiian
Islands from ``take,'' as defined in the Marine Mammal Protection Act
(MMPA) and its implementing regulations, or to otherwise adversely
affect the dolphins. The scope of this advance notice of proposed
rulemaking (ANPR) encompasses the activities of any person or
conveyance that may result in the unauthorized taking of spinner
dolphins and/or that may diminish the value to the dolphins of habitat
routinely used by them for resting and/or that may cause detrimental
individual-level and population-level impacts. The proposed regulation
would apply only to the main Hawaiian Islands and only to spinner
dolphins. NMFS requests comments on whether--and if so, what type of--
conservation measures, regulations, and, if necessary, other measures
would be appropriate to protect spinner dolphins in the main Hawaiian
Islands from the effects of these activities.
DATES: Comments must be received at the appropriate address (see
ADDRESSES) no later than January 11, 2006.
ADDRESSES: You may submit comments by any of the following methods:
E-mail: 0648-AU02.NOA@noaa.gov. Include in the subject
line the following document identifier: 0648-AU02-NOA.
Federal e-rulemaking Portal: https://www.regulations.gov.
Mail: Marine Mammal Branch Chief, Protected Resources
Division, Pacific Islands Regional Office, National Marine Fisheries
Service, 1601 Kapiolani Boulevard, Suite 1110, Honolulu, HI 96814.
FOR FURTHER INFORMATION CONTACT: Chris Yates or Jennifer Sepez, Pacific
Islands Regional Office, 808-944-2105; or Trevor Spradlin, Office of
Protected Resources, 301-713-2322.
SUPPLEMENTARY INFORMATION:
Background
Viewing wild marine mammals in Hawaii is a popular recreational
activity for both tourists and residents alike. In the past, most
recreational 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, in recent years,
recreational activities have increasingly focused on viewing small
cetaceans, with a particular emphasis on spinner dolphins (Stenella
longirostris), which are routinely found close to shore in shallow
coves and bays and other areas throughout the main Hawaiian Islands.
NMFS is concerned that some of these activities cause unauthorized
taking of dolphins, diminish the value to the dolphins of habitat
routinely used by them for resting, and cause detrimental individual-
level and population-level impacts.
The biology and behavior of Hawaiian spinner dolphins has been well
documented in the scientific literature. Hawaiian spinner dolphins are
identified as a race of Pacific spinner dolphins found in and around
the Hawaiian Islands, including both the main Islands of Hawaii and the
Northwestern Hawaiian Islands (Norris et al. 1994, page 17). Hawaiian
spinner dolphins routinely utilize shallow coves and bays and other
areas close to shore during the day to rest, care for their young and
avoid predators before traveling to deeper water at night to hunt for
food (W[uuml]rsig et al. 1994, Norris 1994). As the dolphins begin or
end their resting period, they engage in aerial spinning and leaping
behaviors that are noticeable from shore (W[uuml]rsig et al. 1994).
However, when they are in a period of deep rest, their behavior
consists of synchronous dives and extended periods swimming in quiet
formation along the shallow bottom (see: Norris and Dohl 1980, Norris
et al. 1985, Wells and Norris 1994, W[uuml]rsig et al. 1994).
Scientific research studies have documented human disturbance of
Hawaiian spinner dolphins during their resting periods along the west
coast of the Big Island of Hawaii, most notably in and around
Kealakekua Bay. Norris and Dohl (1980) noted that ``cruise boats''
would seek out and run through groups of spinner dolphins during an
initial study of the dolphins in 1970, and in follow up research,
Norris et al. (1985) found that spinner dolphins were particularly
sensitive to disturbance during the early stage of their entry into the
bay. Forest (2001) compared sightings records of spinner dolphins in
Kealakekua Bay from 1979-1980 and 1993-1994, and found that the
dolphins were utilizing the bay and engaging in aerial behaviors less
frequently than before, and suggested increasing human disturbance as a
cause. Courbis (2004) reported high levels of vessel and swimmer
traffic in Kealakekua Bay and neighboring Honaunau Bay and Kauhako Bay,
and found that spinner dolphins exhibited decreased aerial activity
during their entry and exit into Kealakekua Bay when compared to
previous studies, as well as increased aerial activity during mid-day
when dolphins typically rest. Spinner dolphins in Kealakekua Bay also
appeared to have shifted their preferred resting area in response to
vessel and swimmer presence. In Kauhako Bay, dolphins were documented
avoiding swimmers and leaving the bay in
[[Page 73427]]
response to being followed, while in Honaunau Bay, dolphins were
documented to spend more time at the mouth of the bay or in deep water
at the center of the bay when swimmers were present. [Ouml]stman-Lind
et al. (2004) found that human disturbance was highest in mid-morning
when spinner dolphins begin their rest period, and that secondary
resting areas with less vessel traffic were utilized more than had been
previously observed, and suggested the dolphins have been displaced
from their primary resting areas. In addition, Ross (2001) found that
Hawaiian spinner dolphins around Midway Atoll in the Northwest Hawaiian
Islands exhibited short-term behavioral changes in response to vessels
at distances of 300 meters and 100 meters.
NMFS is concerned that displacement from primary resting areas has
the potential for adverse impacts on the dolphins for a number of
reasons, including that these secondary resting areas may not provide
for the same quality of rest and protection that primary areas do and
that the activities that displaced the dolphins from primary areas are
likely to follow them. NMFS scientists are concerned about the
potential for individual-level and population-level effects because of
anthropogenic activities. NMFS has received an increasing number of
complaints from constituents alleging that spinner dolphins in the main
Hawaiian Islands are routinely being disturbed by people attempting to
closely approach and interact with the dolphins by vessel (motor
powered or kayak) or in the water (``swim-with-wild-dolphin''
activities). Concerns have been expressed by officials from the Hawaii
Department of Land and Natural Resources and the U.S. Marine Mammal
Commission, as well as representatives of the Native Hawaiian
community, scientific researchers, wildlife conservation organizations,
public display organizations, and some commercial tour operators.
Additionally, there are growing public safety concerns associated
with human-dolphin interactions. Although there are no known reports of
Hawaiian spinner dolphins injuring humans, people have been seriously
injured while trying to interact with various species of marine mammals
in the wild, including species of dolphins (Webb 1978, Shane et al.
1993, NMFS 1994, Wilson 1994, Orams et al. 1996, Seideman 1997,
Christie 1998, Santos 1997, Samuels and Bejder 1998, Samuels and Bejder
2004, Samuels et al. 2000). In addition, researchers have documented
Hawaiian spinner dolphins behaving aggressively towards people in the
water by charging and making threat displays (Norris et al. 1985,
Johnson and Norris 1994). There is also a potential risk of shark
attack, since sharks prey upon spinner dolphins and often are seen with
them along the coast (Johnson and Norris 1994, Norris 1994). In June
2003, an adult male swimmer was attacked by a shark while trying to
swim with spinner dolphins off the coast of Oahu. The man suffered
injuries to his leg, which required medical attention (Hoover and
Espanol 2003).
NMFS encourages members of the public to view and enjoy spinner
dolphins in the main Hawaiian Islands in ways that are consistent with
the provisions of the MMPA, and supports responsible wildlife viewing
as articulated in agency guidelines (see Web citations below). NMFS is
concerned that some activities occurring in Hawaii are not in
accordance with these guidelines, and cause unauthorized taking of
spinner dolphins, diminish the value to the dolphins of habitat
routinely used by them for resting, or cause detrimental individual-
level and population-level impacts to these dolphins.
Current MMPA Prohibitions and NMFS Guidelines and Regulations
The Marine Mammal Protection Act, 16 U.S.C. 1361 et seq., generally
prohibits the ``take'' of marine mammals. Section 3(13) of the MMPA
defines the term ``take'' as ``to harass, hunt, capture, or kill, or
attempt to harass, hunt, capture, or kill any marine mammal.'' Except
with respect to military readiness activities and certain scientific
research activities, the MMPA defines the term ``harassment'' as ``any
act of pursuit, torment, or annoyance which--(i) has the potential to
injure a marine mammal or marine mammal stock in the wild, [Level A
harassment]; or (ii) has the potential to disturb a marine mammal or
marine mammal stock in the wild by causing disruption of behavioral
patterns, including, but not limited to, migration, breathing, nursing,
breeding, feeding, or sheltering [Level B harassment].''
In addition, NMFS regulations implementing the MMPA further
describe the term ``take'' to include: ``the negligent or intentional
operation of an aircraft or vessel, or the doing of any other negligent
or intentional act which results in disturbing or molesting a marine
mammal; and feeding or attempting to feed a marine mammal in the wild''
(50 CFR 216.3). The MMPA provides limited exceptions to the prohibition
on ``take'' for activities such as scientific research, public display,
and incidental take in commercial fisheries. Such activities require a
permit or authorization, which may be issued only after a thorough
agency review.
Although Hawaiian spinner dolphins are not a listed species under
the Endangered Species Act (ESA), there are specific regulations for
some ESA-listed marine mammals which address interactions with humans
in the wild. These regulations prohibit approaches within 3 nautical
miles (5.5 km) of particular Steller sea lion rookeries in the Aleutian
Islands and Gulf of Alaska (50 CFR 223.202), approaches closer than 100
yards (91.4 m) to humpback whales in Hawaii, approaches closer than 100
yards (91.4 m) to humpback whales in Alaska, and approaches closer than
500 yards (460 m) to right whales in the North Atlantic (50 CFR
224.103). Documentation for these latter two regulations (66 FR 29502,
May 31, 2001, and 62 FR 6729, February 13, 1997) cites rulemaking
authority under both the ESA and the MMPA.
For both ESA-listed species and for MMPA-protected species,
wildlife viewing must be conducted in a manner that does not cause
``take.'' This is consistent with the philosophy of responsible
wildlife viewing advocated by many federal agencies to unobtrusively
observe the natural behavior of wild animals in their habitats without
causing disturbance (see https://www.watchablewildlife.org/ and https://
www.watchablewildlife.org/publications/marine_wild life--viewing--
guidelines.htm).
Each of the six NMFS Regions has developed recommended viewing
guidelines to educate the general public on how to responsibly view
marine mammals in the wild and avoid causing a ``take.'' These
guidelines are available on line at: https://www.nmfs.noaa.gov/prot_
res/MMWatch/MMViewing.html. The guidelines developed by the NMFS
Pacific Islands Regional Office for marine mammals in Hawaii are also
available at: https://www.nmfs.noaa.gov/prot_res/MMWatch/hawaii.htm.
The Regional Office viewing guidelines for Hawaii recommend that people
view wild dolphins from a safe distance of at least 50 yards (45 m) and
refrain from trying to chase, closely approach, surround, swim with, or
touch the animals. To support the guidelines in Hawaii, NMFS has
partnered with the State of Hawaii and the Hawaiian Islands Humpback
Whale National Marine Sanctuary over the past several years to promote
safe and responsible wildlife viewing practices through the development
of outreach materials, training workshops and public service
[[Page 73428]]
announcements. NMFS' education and outreach efforts have also been
supported by a partnership with the Watchable Wildlife program, a
consortium of Federal and State wildlife agencies and wildlife interest
groups that encourages passive viewing of wildlife from a distance for
the safety and well-being of both animals and people (Duda 1995,
Oberbillig 2000).
However, despite the regulations, guidelines and outreach efforts,
interactions through swim-with-dolphins programs continue to occur and
are increasing in Hawaii. Advertisements on the Internet and in local
media in Hawaii promote activities that contradict the NMFS guidelines.
NMFS has received letters from the Marine Mammal Commission (MMC),
members of the scientific research community, environmental groups, the
public display community, and members of the general public expressing
the view that swimming with and other types of interactions with wild
marine mammals have the potential to harass and/or disturb the animals
by causing injury or disruption of normal behavior patterns. NMFS has
also received inquiries from members of the public and commercial tour
operators requesting clarification on NMFS' policy on these matters.
The MMC sponsored a literature review by Samuels et al. (2000) to
compile information regarding human interactions with wild dolphins.
Upon review of the report, the MMC stated:
The information and analyses in the report provide compelling
evidence that any efforts to interact intentionally with dolphins in
the wild are likely to result in at least Level B harassment and, in
some cases, could result in the death or injury of both people and
marine mammals.
The MMC subsequently recommended that NMFS ``promulgate regulations
specifying that any activity intended to enable in-water interactions
between humans and dolphins in the wild constitutes a taking and is
prohibited'' (Letter from MMC to NMFS dated May 23, 2000).
In 2002, NMFS published an ANPR requesting comments from the public
on what types of regulations and other measures would be appropriate to
prevent harassment of marine mammals in the wild caused by human
activities directed at the animals (67 FR 4379, January 30, 2002). The
2002 ANPR was national in scope and covered all species of marine
mammals under NMFS' jurisdiction (whales, dolphins, porpoises, seals
and sea lions), and requested comments on ways to address concerns
about the public and commercial operators closely approaching, swimming
with, touching or otherwise interacting with marine mammals in the
wild. Several potential options were proposed for consideration and
comment, including: (1) Codifying the current NMFS Regional marine
mammal viewing guidelines into regulations; (2) codifying the
guidelines into regulations with additional improvements; (3)
establishing minimum approach rules similar to the ones under the ESA
regulations for humpback whales in Hawaii and Alaska and North Atlantic
right whales; and (4) restricting activities of concern similar to the
MMPA regulation prohibiting the public from feeding or attempting to
feed wild marine mammals. The 2002 ANPR specifically mentioned the
concerns about Hawaiian spinner dolphins and increasing human
interactions. Over 500 comments were received on the 2002 ANPR
regarding human interactions with wild marine mammals in United States
waters and along the nation's coastlines. A portion of the comments
specifically addressed Hawaii concerns and recommended a wide spectrum
of measures from no action to restricting swim with activities through
regulations or time-area closures.
Request for Comments
NMFS is requesting comments on whether --and if so, what type of--
conservation measures, regulations, and, if necessary, other measures
would be appropriate to protect spinner dolphins in the main Hawaiian
Islands from human activities that result in the unauthorized taking of
spinner dolphins and/or that may diminish the value to the dolphins of
habitat routinely used by them for resting and/or that may cause
detrimental individual-level and population-level impacts. If a rule
were proposed, the agency could further delineate the definition of
``take'' in the Code of Federal Regulations for situations involving
Hawaiian spinner dolphins, focusing on the take of individual dolphins.
The agency could also design regulations to address possible adverse
effects at the population level, where repeated intrusions into resting
areas cumulatively have the potential to disrupt the behavioral
patterns within the population of dolphins and/or have the potential to
injure the stock as a whole through displacement of animals from their
preferred habitat. The agency could also act to protect essential
habitats, including mating grounds and areas of similar significance to
the dolphins.
NMFS offers several possible options for consideration and comment:
Codify the current NMFS Pacific Islands Regional Office's marine
mammal viewing guidelines--Codifying the guidelines as regulations
would make them requirements rather than recommendations, and would
provide for enforcement of these provisions and penalties for
violations.
Codify the current NMFS Pacific Islands Regional Office's marine
mammal viewing guidelines with improvements--The current guidelines
could be revised to more clearly address specific activities of
concern, such as those discussed below, and then codified as
enforceable regulations.
Establish minimum approach rule--Similar to the minimum approach
rules for humpback whales in Hawaii and Alaska, and right whales in the
North Atlantic (50 CFR 224.103; 66 FR 29502, May 31, 2001), a limit
could be established by regulation to accommodate a reasonable level of
dolphin viewing opportunities while minimizing the potential
detrimental impacts from humans. If establishing a minimum approach
rule is appropriate, then NMFS would have to consider whether the
current guideline of 50 yards is appropriate for this regulation. NMFS
would consider exceptions for situations in which marine mammals
approach vessels or humans as well as other situations in which
approach is not reasonably avoidable.
Restrict individual activities of concern--Similar to the
prohibition on feeding wild marine mammals (50 CFR 216.3), a regulation
further delineating the definition of ``take'' for the case of Hawaiian
spinner dolphins could clarify which specific activities are
prohibited. Such activities could include actions engaged in by
individuals, e.g., swimming with, touching (either directly or with an
object), or otherwise acting on or with a Hawaiian spinner dolphin in
the wild. It could also include operating a vessel or providing other
platforms from which such interactions are conducted or supported.
Restrict vessel activities of concern--Activities of concern
engaged in by vessels could also be prohibited through a regulation
further delineating the definition of ``take'' for the case of Hawaiian
spinner dolphins. These activities of concern could include actions
engaged in by vessels, e.g., the use of vessels to herd dolphins,
surround dolphins, or otherwise prevent a reasonable means of escape,
to ``leapfrog'' dolphins by positioning in their predictable paths,
separate calves from attending adults, approach at or above specified
speeds, or to ``run through'' a group of dolphins in order to elicit
bow-wake riding.
[[Page 73429]]
Establish time-area closures in resting bays--Similar to the
prohibitions used to protect fish stocks or habitat, a regulation
restricting human access to specific areas could be established. These
restrictions could be for full-time, or limited to certain times of the
day when dolphins have the most potential to be present. They could:
restrict all human entry to the area; restrict only specified types of
activities; restrict human access to an entire area or a particular
zone within an area; or a closure could be any combination of the above
parameters.
NMFS also recognizes that the most appropriate regulations may be
some combination of the above measures, or that additional
possibilities may exist.
The geographic scope of these regulations, if proposed, would be
the near shore habitats off the main Hawaiian Islands, including the
Big Island of Hawaii, Maui, Kohoolawe, Lanai, Molokai, Oahu, Kauai, and
Niihau, and their nearby land or land-like masses (e.g., Molokini,
Kaohiakipu, etc.). These are the locations where activities of concern
are concentrated. The Northwestern Hawaiian Islands (NWHI) do not
currently have a significant level of activities of concern, and NMFS
feels the remoteness of these islands makes it unlikely that they will
develop at significant levels in the future. In addition, a marine
sanctuary is contemplated which would encompass the NWHI. NMFS requests
comments on the geographic scope of this ANPR, including whether the
agency should be considering a larger or smaller overall geographic
scope to protect Hawaiian spinner dolphins.
NMFS invites comment on the above options and other possible
measures that will help the agency decide what type of regulations, if
any, would be most appropriate to consider for protecting spinner
dolphins in the main Hawaiian Islands from human activities that cause
unauthorized taking of spinner dolphins, diminish the value to the
dolphins of habitat routinely used by them for resting, or cause
detrimental individual-level and population-level impacts to these
dolphins.
Classification
This advance notice of proposed rulemaking was determined to be
significant for purposes of E.O. 12866.
Dated: December 6, 2005.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
References
Christie, S. 1998. Learning to live with giants: Elephant seals
get the right of way at Piedras Blancas. California Coast & Oceans,
14(1):11-14.
Courbis, S.S. 2004. Behavior of Hawaiian spinner dolphins
(Stenella longirostris) in response to vessels/swimmers. Masters
Thesis, San Francisco State University. 209 pp.
Duda, Mark D. 1995. Watching Wildlife: Tips, Gear and Great
Places for Enjoying America's Wild Creatures. Falcon Press
Publishing Co., Helena and Billings, MT. 117 pp.
Forest, A. 2001. The Hawaiian spinner dolphin, Stenella
longirostris: Effects of tourism. Masters Thesis, Texas A&M
University. 91 pp.
Johnson, C.M. and K.S. Norris. 1994 Social Behavior. In: K.S.
Norris, B. W[uuml]rsig , R.S. Wells and M. W[uuml]rsig (Eds.), The
Hawaiian Spinner Dolphin. University of California Press, Berkeley.
Pp. 14-30.
Marine Mammal Protection Act. 16 U.S.C. et seq. and 50 CFR part
216.
NMFS. 1994. Report to Congress on Results of Feeding Wild
Dolphins: 1989-1994. NOAA/National Marine Fisheries Service, Office
of Protected Resources. 23 pp.
Norris, K.S. 1994. Predators, Parasites, and Multispecies
Aggregations. In K.S. Norris, B. W[uuml]rsig , R.S. Wells and M.
W[uuml]rsig (Eds.), The Hawaiian Spinner Dolphin. University of
California Press, Berkeley. Pp. 14-30.
Norris, K.S. and T.P. Dohl. 1980. Behavior of the Hawaiian
spinner dolphin, Stenella longirostris. Fishery Bulletin, 77(4):821-
849.
Norris, K.S., B. W[uuml]rsig, R.S. Wells, M. W[uuml]rsig, S.M.
Brownlee, C. Johnson and J. Solow. 1985. The behavior of the
Hawaiian spinner dolphin, Stenella longirostris. NMFS Southwest
Fisheries Center Administrative Report No. LJ-85-06C. 213 pp.
Norris, K.S., B. W[uuml]rsig, and R.S. Wells. 1994. The Spinner
Dolphin. In K.S. Norris, B. W[uuml]rsig , R.S. Wells and M.
W[uuml]rsig (Eds.), The Hawaiian Spinner Dolphin. University of
California Press, Berkeley. Pp. 14-30.
Oberbillig, D.E. 2000. Providing Positive Wildlife Viewing
Experiences: A Practical Handbook. Watchable Wildlife, Inc.,
Colorado Division of Wildlife Publication. 68 pp.
Orams, M.B., G.J.E. Hill and A.J. Baglioni, Jr. 1996. ``Pushy''
behavior in a wild dolphin feeding program at Tangalooma, Australia.
Marine Mammal Science, 12(1):107-117.
[Ouml]stman-Lind, J., A. Driscoll-Lind and S.H. Rickards. 2004.
Delphinid abundance, distribution and habitat use off the western
coast of the Island of Hawaii. NMFS Southwest Fisheries Science
Center Administrative Report LJ-04-02C. 28 pp.
Ross, G. 2001. Response of Hawaiian spinner dolphins, Stenella
longirostris, to boat presenece in Midway Atoll. Masters Thesis, San
Francisco State University. 74 pp.
Samuels, A., and L. Bejder. 1998. Habitual interactions between
humans and wild bottlenose dolphins (Tursiops truncatus) near Panama
City Beach, Florida. Report to the Marine Mammal Commission, Silver
Spring, MD. 13 pp.
Samuels, A., and L. Bejder. 2004. Chronic interaction between
humans and free-ranging bottlenose dolphins near Panama City Beach,
Florida, USA. Journal of Cetacean Research and Management, 6(1):69-
77.
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Literature Pertaining to Swimming with Wild Dolphins. Report to the
Marine Mammal Commission. 57 pp.
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Brazil: Human fatality and management. Marine Mammal Science,
13(2):355-356.
Seideman, D. 1997. Swimming with trouble. Audubon, 99:76-82.
Shane, S.H., L. Tepley and L. Costello. 1993. Life threatening
contact between a woman and a pilot whale captured on film. Marine
Mammal Science, 9(3):331-336.
Webb, N.G. 1978. Women and children abducted by a wild but
sociable adult male bottlenose dolphin. Carnivore, 1(2):89-94.
Wells, R.S. and K.S. Norris. 1994. The island habitat. In K.S.
Norris, B. W[uuml]rsig, R.S. Wells and M. W[uuml]rsig (Eds.), The
Hawaiian Spinner Dolphin. University of California Press, Berkeley.
Pp. 31-53.
Wilson, B. 1994. Review of dolphin management at Monkey Mia.
Department of Conservation and Land Management, Perth, Western
Australia. 37 pp.
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1994. A spinner dolphin's day. In K.S. Norris, B. W[uuml]rsig, R.S.
Wells and M. W[uuml]rsig (Eds.), The Hawaiian Spinner Dolphin.
University of California Press, Berkeley. Pp. 65-102.
[FR Doc. 05-23928 Filed 12-9-05; 8:45 am]
BILLING CODE 3510-22-P