Questions & Answers - Rule to Prohibit Swimming With and Approaching Hawaiian Spinner Dolphins

Purpose and description of the rulemaking action, exceptions to prohibitions, and next steps for Hawaiian spinner dolphins.

Pacific Islands

Why is NOAA Fisheries establishing these regulations for Hawaiian spinner dolphins?

Unauthorized take of marine mammals, including harassment of spinner dolphins, is prohibited under the Marine Mammal Protection Act (MMPA). However, despite prohibitions, guidelines, outreach, and stewardship efforts currently in place, close interactions between humans and spinner dolphins continue to occur in waters around Hawai‘i. These interactions are especially prevalent during Hawaiian spinner dolphin essential daytime habitats. Based on the best available scientific information we have determined that additional regulations are required to protect Hawaiian spinner dolphins from activities that result in take, including harassment or other forms of disturbance as currently defined by statute and regulation.

What is NOAA Fisheries’ legal basis for implementing these rules?

Under Section 102 of the MMPA (16 U.S.C. 1361 et seq.,) it is unlawful for any person, vessel, or other conveyance to “take” any marine mammal in waters under the jurisdiction of the United States (16 U.S.C. 1372). The prohibition against take includes acts that “harass” marine mammals (16 U.S.C. 1362(13)). Harassment means any act of pursuit, torment, or annoyance which has the potential to injure a marine mammal in the wild (Level A Harassment), or has the potential to disturb a marine mammal in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B Harassment) (16 U.S.C. 1362 (18); see also 50 CFR 216.3). Take is further defined in 50 CFR 216.3 as the negligent or intentional operation of an aircraft or vessel, and the doing of any other negligent or intentional act which results in disturbing or molesting a marine mammal.

Section 112 of the MMPA authorizes NOAA to implement regulations that are “necessary and appropriate to carry out the purpose” of the MMPA (16 U.S.C. 1382). NOAA Fisheries has developed regulations under the MMPA to protect marine mammals from take. An example of this type of regulation is a 100 yard (91.4 meter) approach limit for humpback whales within 200 nautical miles of the islands of Hawai‘i (81 FR 62010).

What are essential daytime habitats and why is undisturbed daytime rest important for Hawaiian spinner dolphins?

Spinner dolphins have a very specific behavior pattern of hunting at night and resting during the day. During the day, spinner dolphins use areas close to shore that have optimal environmental conditions for spinner dolphins to socialize, nurture their young, shelter from predators, and rest in preparation for nightly foraging. These specific areas are considered spinner dolphin essential daytime habitats. Spinner dolphins disturbed during this rest period may engage in avoidance or distress behaviors, and lack of consistent, undisturbed resting periods can reduce the amount of energy available to them for foraging and caring for their young. The rate of chronic exposure of Hawaiian spinner dolphins in their daytime essential habitat may place resident stocks at risk through habitat displacement or reduced fitness, as seen in other dolphin populations.

Can’t a dolphin just swim away if it does not want to be near people or vessels?

Having to swim away from people or vessels closely approaching Hawaiian spinner dolphins interrupts their rest, keeps them in a state of vigilance, and forces the dolphins to expend energy to increase their swimming speed and/or change direction. This increase in their energetic expenditures for purposes of avoidance may lead to decreased energy needed for other important behaviors, such as foraging and nurturing their young and affect the fitness of individual dolphins, and their ability to forage as a group. Further, leaving their preferred resting habitat altogether can lead to a greater risk of predation, and may involve greater energetic demands because they may need to travel farther distances at night to reach their feeding grounds.

How do I responsibly view Hawaiian spinner dolphins?

Viewing Hawaiian spinner dolphins from a safe distance of at least 50 yards (45.7 meters) is allowed under this rule. Additionally, spinner dolphins can often be safely viewed from shore in some areas. You can view the Responsible Marine Wildlife Viewing Guidelines in Hawai‘i page for spinner dolphins and other protected marine wildlife.

Why can’t a person swim with, approach, or remain near a Hawaiian spinner dolphin?

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 and effects of swimmers on dolphins’ daily resting behavioral patterns. Because main Hawaiian Island resident spinner dolphins rest in nearshore areas during the day, concentrated daily viewing and interactions put pressure on individual dolphins and groups over extended periods of time. The chronic nature of these problems in Hawai‘i and observed changes to spinner dolphin behavioral patterns over time are a cause for concern. Reported behavioral changes observed in scientific studies may not be obvious to an observer who is not systematically observing the behavioral patterns that support spinner dolphins throughout the day. However, many independent scientists studying varying geographic areas have reported changes in spinner dolphin behavior and reduced time spent engaging in resting behavior when in the presence of human activity. This chronic disturbance to the resident spinner dolphins could ultimately lead to habitat displacement and/or long term impacts to their individual fitness.

What if a Hawaiian spinner dolphin approaches a person or vessel?

Any person who inadvertently comes within 50 yards (45.7 meters) of a Hawaiian spinner dolphin or is approached by a spinner dolphin, must make no effort to engage or pursue the animal, and take immediate steps to move away. Any vessel that is underway or adrift and is approached by a Hawaiian spinner dolphin may continue normal navigation as long as it makes no effort to engage or pursue the animal. Vessels that are anchored and approached by spinner dolphins are not required to move away, provided they make no effort to engage or pursue the animal(s).

How does the swim-with and approach final rule apply to dolphin or wildlife tour operators and participants?

Dolphin and wildlife tour operators, and their vessels, must maintain a distance of at least 50 yards (45.7 meters) from Hawaiian spinner dolphins. Participants in these tours must also maintain a distance of at least 50 yards (45.7 meters) when on the vessel or in the water. Commercial tour operators interested in learning how to view dolphins and other protected marine wildlife can opt into the Dolphin SMART program. Dolphin SMART is a unique voluntary recognition and education program that promotes responsible viewing, advertising, and conservation awareness of wild dolphins and other protected marine wildlife. More information on Dolphin SMART, including instructions on how to join the program and a list of current participants, can be found on the Dolphin SMART website.

How did you determine 50 yards would be sufficient to minimize take?

We have determined that a 50-yard approach distance will support increased protection and safety of spinner dolphins, and yet would not result in unreasonably restricting the public from observing these animals. This distance is consistent with regional and national guidance for respectful viewing. People may still inadvertently engage in behaviors that are disruptive and result in the disturbance and take of spinner dolphins at distances of greater than 50 yards. Compliance with the rule does not necessarily absolve those behaviors from enforcement action.

What are the eight (8) exceptions to this rule?

Specific categories are exempt from the swim-with and approach regulation, and are outlined below:

Any person who inadvertently comes within 50 yards (45.7 meters) of a Hawaiian spinner dolphin or is approached by a spinner dolphin, provided the person makes no effort to engage or pursue the animal and takes immediate steps to move away from the animal
Any vessel that is underway and is approached by a Hawaiian spinner dolphin, provided the vessel continues normal navigation and makes no effort to engage or pursue the animal. For purposes of this exception, a vessel is underway if it is not at anchor, made fast to the shore, or aground
Any vessel transiting to or from a port, harbor, or in a restricted channel when a 50 yard (45.7 meters) distance will not allow the vessel to maintain safe navigation
Vessel operations necessary to avoid an imminent and serious threat to a person or vessel
Any vessel that is anchored or aground and is approached by a Hawaiian spinner dolphin, provided the vessel makes no effort to engage or pursue the animal
Activities authorized through a permit or authorization issued by NOAA Fisheries to take Hawaiian spinner dolphins
Federal, state, or local government vessels, aircraft, personnel, and assets when necessary in the course of performing official duties
Commercial fishing vessels that incidentally take spinner dolphins during the course of commercial fishing operations, provided such vessels operate in compliance with a valid marine mammal authorization in accordance with MMPA Section 118(c)

How does the swim-with and approach final rule apply to commercial or recreational fishers?

Commercial or recreational fishers must maintain a distance of at least 50 yards (45.7 meters) from Hawaiian spinner dolphins. If a dolphin approaches a fishing vessel that is underway or adrift, the vessel may continue normal navigation as long as it makes no effort to engage or pursue the animal. Fishing vessels that are anchored and approached by spinner dolphins are not required to move away, provided they make no effort to engage or pursue the animal(s). If a Hawaiian spinner dolphin approaches a spearfisher or other fisher in the water, the fisher must make no effort to engage or pursue the animal, and take immediate steps to move away. Additional details on how the regulations apply to specific circumstances concerning vessels and navigation can be found in the final rule.

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Last updated by Pacific Islands Regional Office on 09/30/2022

Rules and Regulations