(a) Applicability. The following special restrictions designed to protect Hawaiian Spinner Dolphins apply:

(1) In all waters within 2 nautical miles (nmi) of the main Hawaiian Islands, and

(2) In all waters bounded by the islands of Lāna`i, Maui, and Kaho`olawe enclosed by 3 line segments that connect points on the 2-nmi boundary between the islands as follows: The straight line between 20°32′51″ N/156°43′50″ W (Kaho`olawe) and 20°42′4″ N/156°55′34″ W (Lāna`i), the straight line between 20°51′1″ N/156°54′0″ W (Lāna`i) and 20°59′48″ N/156°42′28″ W (Maui), and the straight line between 20°33′55″ N/156°26′43″ W (Maui) and 20°32′15″ N/156°29′51″ W (Kaho`olawe) (all coordinates referenced to The World Geodetic System of 1984 (WGS 84)).

(b) Prohibitions. Except as noted in paragraph (c) of this section, it is unlawful for any person subject to the jurisdiction of the United States to commit, to attempt to commit, to solicit another to commit, or to cause to be committed any of the following:

(1) Approach or remain within 50 yards (45.7 m) of a Hawaiian spinner dolphin by any means;

(2) Swim within 50 yards (45.7 m) of a Hawaiian spinner dolphin;

(3) Cause a vessel, person, or other object to approach or remain within 50 yards (45.7 m) of a Hawaiian spinner dolphin; or

(4) Intercept or place a vessel, person, or other object in the path of a Hawaiian spinner dolphin so that the dolphin approaches within 50 yards (45.7 m) of the vessel, person, or object.

(c) Exceptions. The prohibitions of paragraph (b) of this section do not apply to:

(1) Any person who inadvertently comes within 50 yards (45.7 m) 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;

(2) 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 defined as a watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water (1 U.S.C. 3); a vessel is underway if it is not made fast to the shore, at anchor, or aground;

(3) Any vessel transiting to or from a port, harbor, or in a restricted channel when a 50-yard (45.7 m) distance will not allow the vessel to maintain safe navigation;

(4) Vessel operations necessary to avoid an imminent and serious threat to a person or vessel;

(5) 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;

(6) Activities authorized through a permit or authorization issued by the National Marine Fisheries Service to take Hawaiian spinner dolphins;

(7) Federal, State, or local government vessels, aircraft, personnel, and assets when necessary in the course of performing official duties;

(8) 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).

(d) Affirmative defense. In connection with any action alleging a violation of this section, any person claiming the benefit of any exemption, exception, or permit listed in paragraph (c) of this section has the burden of proving that the exemption or exception is applicable, or that the permit was granted and was valid and in force at the time of the alleged violation.

(e) Maps of areas for Hawaiian spinner dolphin special restrictions. The following are overview maps and a table with corresponding coordinate data for the areas for Hawaiian spinner dolphin special restriction.

86 FR 53841, Sept. 28, 2021]