Proposed Rules From Tour Operators – Proposed Manta Ray Rules

URGENT: the proposed rules from manta ray tour operators will be submitted to the DLNR by Feb. 23, 2023. Please sign up to show your support for these rules today.

Proposed Rules From Manta Ray Tour Operators

February 07, 2023

According to the DLNR, current manta ray tour operators in Kona have a 31.4% chance of losing their ability to run manta ray tours when the DLNR’s proposed manta ray viewing rules go into effect (48 manta ray permits will be issued to an estimated 70 manta ray tour operators). For the other 68.6% of manta ray tour operators that obtain a permit to continue operating, tour length will be restricted to two hours per night and revenue for most tour operators will be reduced by 50% or more. If the DLNR’s proposed rules are passed, the financial impact on manta ray tour operators will be catastrophic and there will be no measurable safety benefit. A group of manta ray tour operators have worked together to propose changes to the DLNR’s rules, with the goal of improving safety and reducing the financial impact on manta ray tour operators. Keep reading to learn more about the proposed rules from manta ray tour operators, and sign up to show your support.

Summary Of Proposed Rules From Manta Ray Tour Operators

Intro

We know the proposed rules from the DLNR will cause massive revenue reductions for most manta ray tour operators, and we also know the rules won’t improve safety in a meaningful way because safety can not possibly be improved in a meaningful way. This is because millions of passengers have safely viewed manta rays in Kona, with only one known severe accident that would not have been prevented as a result of the DLNR’s proposed rules. Put simply, manta ray tours have proven to be a safe activity and the proposed rules from the DLNR will unnecessarily harm tour operators.

We believe there are reasonable rules that can be implemented to improve safety without unnecessarily damaging local businesses. We have included a summary of the proposed rules from manta ray tour operators in simple language below, followed by a complete rule set in legalese. We are asking tour operators and concerned citizens to join the cause and sign up to support the proposed rules that will be presented to the DLNR by February 23, 2023.

Most Consequential Rules

Rule (d) (2) (i) and Rule (d) (2) (ii)

This rule set bans live boating, which is the most consequential rule in the DLNR proposal. This rule set introduces extreme safety concerns and sets the stage for a massive revenue reduction for tour operators. There is no data to suggest live boating is dangerous, as this is a common practice that has safely delivered manta ray tours to millions of guests over the years.

Safety: Live boating allows vessels to remain close to their in-water guests and crew members, which carries multiple safety benefits. When currents are strong, especially in Keauhou, guests engaged in snorkeling tours can drift more than 200 yards from their vessels. When this happens today, the captain will follow the drifting guests from a safe distance and monitor the situation for safety concerns. If there is a safety concern, the Captain can quickly and safely react. With the DLNR’s proposed rule that bans live boating, the captain would be prevented from following the guests from a safe distance, and may be unaware of distress that requires action. This unnecessarily creates a safety hazard, especially for snorkel tour operators in Keauhou.
Revenue: By eliminating live boating, all boats would be required to moor. The manta ray viewing sites may not be big enough to install mooring balls for every current manta ray tour operator. The DLNR is proposing the installation of just 24 mooring balls, which means the ban on live boating is setting the stage for up to 31.4% of manta ray tour operators to lose the ability to run manta ray tours.
Proposed Solution: We believe live boating should be regulated rather than banned altogether. By regulating live boating, we can address the perceived safety concerns while protecting revenue for tour operators. We are proposing that live boating be allowed for snorkel boats that are under 36 feet in length, that have a dedicated lookout on board. On snorkel tours, there is a greater risk of drifting from a vessel than scuba tours, which is why snorkel tours benefit from the ability to live boat. Furthermore, scuba guests need their vessel to remain in a fixed location so they know where to surface at the end of the tour, which creates a unique need for scuba vessels to moor. For vessels that engage in live boating, a dedicated lookout can help the captain safely navigate the waters. In summary, allowing regulated live boating would improve safety vs. current practices, it would eliminate the new safety concerns that have been introduced by the DLNR’s approved rules, and it would allow more manta ray tour operators to continue operating.

Rule (b) (1)

This rule limits the total number of manta ray viewing permits to 48. The DLNR has estimated that 70 boats currently operate manta ray viewing tours, so 31.4% of manta ray tour operators would lose the ability to continue operating as a result of this rule. There is no data to suggest that 70 boats is too many. There have not been any studies on this matter, and choosing an arbitrary limit of 48 permits will put a high volume of local tour operators out of business while delivering no measurable safety impact. This is a blatant overreach that will disproportionately impact some tour operators.

Safety: There is no measurable safety benefit in limiting the number of permits to 48. If an estimated 70 boats are currently operating, then we have data to prove that 70 boats is a safe amount because there has only been one severe accident while accommodating millions of guests. It is unreasonable to take permits away from 31.4% of manta ray tour operators unless there is a true safety concern (that’s backed by data) that can provably be eliminated.
Revenue: For most manta ray tour operators, manta ray tours represent a majority of the company’s revenue. For some tour operators, manta ray revenue represents 100% of company revenue. If this rule goes into effect, up to 22 tour operators will face revenue reductions, layoffs, and potentially insolvency that leads to closing down the businesses altogether.
Proposed Solution: We are proposing issuing manta ray permits to all tour operators that have been operating manta ray tours for at least the past year. This effectively caps the amount of manta ray permits at a safe amount and prevents the fleet of manta ray vessels from growing in the future, which would eliminate some potential safety concerns.

Rule (b) (2)

This rule limits the total viewing time to two hours per night, per manta ray permit. Currently, most manta ray vessels run for at least four hours per night, and some run up to seven hours per night. This rule would reduce revenue for a majority of manta ray tour operators by 50% or more. This rule is intended to limit the number of boats and participants in a manta ray viewing zone, but it creates new safety concerns. It also unnecessarily constricts revenue for manta ray tour operators in scenarios where no safety benefit would be gained. It is an overreach to implement a rule that reduces revenue by 50% or more, fails to address current safety concerns, and introduces new safety concerns at the same time.

Safety: The DLNR is proposing two shifts of two hours per night. This means 24 boats would be exiting the manta ray viewing zones at the same exact time that 24 boats would be entering the manta ray viewing zones. This “shift change” would create a scenario where 48 boats are simultaneously engaged in ingress or egress, which introduces new safety concerns with boat traffic. Today, with no set shifts, boats sporadically come and go from manta zones and there is never a time when 48 boats are simultaneously engaged in ingress or egress. This proposed rule from the DLNR will reduce the amount of boats on the water, but will inadvertently increase boat traffic and introduce new safety concerns.
Revenue: This rule will unnecessarily reduce revenue by 50% or more for many tour operators. As we have previously noted, manta ray tours are safe and we have statistically relevant data to support this claim. Implementing a rule that reduces revenue by 50% without solving any historical safety concerns is an overreach by any standard. Furthermore, this rule defies logic by arbitrarily restricting the time of manta ray tour operations to four hours per night. For instance, if a tour operator wants to run a tour from 10pm to midnight, and there are no other boats on the water at that time, what is the safety benefit in preventing this tour from running? There is no safety benefit in this scenario, but there is a business impact that prevents tour operators from earning money.
Proposed Solution: We are proposing that all permitted manta ray tour operators will be able to run tours at all times during manta ray viewing hours (4pm-4am). This is a continuation of existing practices that have proven to be safe. Manta ray tours are already safe, and additional rules included in our proposal will help make the tours even safer than they are today, without causing catastrophic damage to local businesses.

Additional Concerning Rules

Rule (b) (5)

This rule limits the total number of nightly guests to 60 per manta ray permit, and it establishes a ratio of a max of eight participants to one guide. It also states that no more than one commercial manta ray viewing permit shall be issued per person or business entity. None of these limitations will improve safety in a measurable way, but they will constrict revenue for some tour operators.

Safety: The max of 60 guests per manta ray permit is an arbitrary limitation with no measurable safety benefit. If a tour operator has already carried 60 guests, and wants to run another tour at 10pm when no other vessels are on the water, then the cap of 60 guests would not deliver any safety benefits. Regarding the ratio of participants to guides, there are different safety concerns for scuba diving and snorkeling tours. For scuba diving, a max ratio of eight guests per one guide potentially makes sense because scuba divers can get lost from their group on a dive, and scuba tour operators commonly work with a ratio of eight participants to one guide for that reason. For snorkel tours, participants remain on the surface and hold onto a light board, so there is very little risk of them getting lost from their group. One snorkel guide can safely manage 12 guests, as we currently see every night without any safety concerns. Furthermore, the US Coast Guard is already regulating the maximum number of guides to guests by certifying each vessel to carry a specific amount of guests and crew members. The US Coast Guard uses data to guide their rules, and their rules are already promoting a safe environment for manta ray tours. There is no safety benefit in adding additional Hawaii State regulations to the existing Federal US Coast Guard regulations for guide-to-participant ratios.
Revenue: By implementing a max of 60 guests per manta ray permit per night, some tour operators will face revenue reductions without realizing a safety benefit. And by unnecessarily implementing a max of one guide per eight guests, snorkel tour boats would be uniquely harmed (where scuba boats commonly stay under a ratio of 8:1). As a result, some snorkel tour boats would face revenue reductions up to 50%. Furthermore, preventing one person or business entity from owning more than one manta ray permit would unfairly impact individuals with more than one vessel conducting manta ray tours.
Proposed Solution: We are proposing no cap on the number of participants per manta ray permit. We are also proposing a max of 12 participants per guide for snorkel tours, and a max of eight participants per guide for scuba tours. We are proposing to eliminate the restriction of one manta ray permit per person or business entity. This is in line with current practices that have proven to be safe.

Rule (c) (2) (ii)

This rule states that commercial vessels can only moor at their department-approved mooring balls, while non-commercial vessels may moor at any mooring.

Safety: We previously discussed the safety concerns with eliminating live boating and forcing all vessels to moor. This mooring rule introduces another concern about conflict on the water. Imagine a scenario where a manta ray tour operator is approaching their department-approved mooring ball and it is being occupied by a non-commercial vessel. The tour operator would be forced to wait for the non-commercial vessel to leave the mooring, which could be up to 2.5 hours. Or, the manta ray tour operator would need to cancel the tour that’s underway. This is a nightmare scenario that would likely lead to verbal and physical conflict between commercial and non-commercial vessels. Additionally, if the commercial manta ray industry is gutted while non-commercial vessels are given access to commercial mooring balls, the nom-commercial manta ray industry will undoubtedly rise and introduce a whole new set of safety concerns.
Revenue: In the scenario where a tour that’s underway is forced to be cancelled, the tour operator gets hit on revenue and costs. They are forced to refund their guests and lose revenue while paying for the boat fuel and staff. If that were to happen, the tour operator would likely face more damage by receiving negative online reviews. This is a money-losing situation that could potentially happen every night to every commercial vessel, if a high volume of non-commercial vessels take advantage. The potential for conflict would be very high.
Proposed Solution: We are proposing that commercial vessels can only moor at their department-approved moorings, and that non-commercial vessels can only moor at non-commercial moorings.

Rule (c) (2) (iii)

This rule states that moored vessels must depart from a mooring for at least 30 minutes after reaching their time limit of 2.5 hours. For vessels departing from Honokohau Harbor or Kailua Pier, this rule would have a minimal impact because it takes longer than 30 minutes to depart from the manta ray viewing zone, return to the harbor to drop off guests, and then return to the manta ray viewing zone after picking up new guests. For vessels that depart from Keauhou and have a 2-3 minute boat ride to and from the manta ray viewing zone, this rule creates safety issues while unnecessarily restricting revenue.

Safety: In Keauhou, if vessels are required to unnecessarily wait in between tours, the vessels will likely end up crowding the boat channel and creating new potential safety concerns. They would either need to wait near the boat ramps and clog up that area, or they would need to exit the bay after one tour and return to the boat ramp after 30 minutes, which would increase the amount of boats entering and exiting the channel.
Revenue: By creating unnecessary delays in between tours for vessels that operate out of Keauhou, tour operators can run fewer tours per night and revenue is restricted.
Proposed Solution: We are proposing that mooring balls will be assigned to specific vessels, and the vessels will have exclusive access to the mooring balls at all times during manta ray viewing hours. Mooring ball assignments should be prioritized for scuba vessels and vessels over 36 ft. in length. Snorkel vessels under 36 ft. in length should be eligible to be assigned mooring balls, but should be allowed to live boat if they are not assigned a mooring ball. By allowing live boating, eliminating the two hour shifts, and eliminating the cap of 60 participants per night, tour operators would be able to run tours for longer periods of time and offset some of the revenue reductions introduced by other proposed rules.

Rule (d) (2) (iii)

This rule prevents fishing in manta ray viewing zones from 4pm to 4am, even if no manta ray vessels are present. Since the DLNR is suggesting a max of four hours per night of manta ray viewing tours, and the manta ray viewing hours are 12 hours long, this means fishing would be banned during an eight hour period when manta ray tours could not possibly be operating. This defies logic and unnecessarily harms people that rely on fishing.

Proposed Solution: We are proposing that fishing should be allowed in manta ray viewing zones when no manta ray vessels are present.

Rule (d) (2) (vii)

This rule requires vessels to install propeller guards if they do not have a dedicated lookout on board. Since all US Coastguard inspected vessels are already required to have a dedicated lookout, this means un-inspected vessels that carry a max of six guests would be uniquely impacted by this rule.

Safety: Propeller guards are designed to protect propellers. They may provide some protection to people in the unlikely event of being struck by a propeller, but this is not settled fact. There are studies that say propeller guards can cause blunt injuries that can be more devastating than being cut by a propeller. While propeller guards may have some safety benefits, they also introduce new safety concerns. Boats may handle differently with a propeller guard installed, which creates potential safety concerns. Propeller guards also reduce fuel efficiency and increase the likelihood of a vessel running out of fuel and being stranded in the ocean at night.
Revenue: There is a cost to install propeller guards, and propeller guards drive up fuel costs for tour operators. This rule hurts profitability for tour operators, but not necessarily revenue.
Proposed Solution: We are proposing the elimination of the rule that requires vessels to install propeller guards if they do not have a dedicated lookout on board. Since we are already proposing that all vessels engaged in live boating be required to have a dedicated lookout, we have a separate rule to address this concern.

The Entire Proposed Rule Set From DLNR With Recommended Edits From Manta Ray Tour Operators

While we are suggesting many edits to the DLNR’s proposed rules, we are also accepting many of their proposed rules. The following document shows all proposed rules from the DLNR, and all proposed edits from manta ray tour operators.

All changes to the DLNR’s proposed rules have been crossed out, and all proposed replacement text from manta ray tour operators is shown in red.

If you support the proposed rules from the manta ray tour operators, please sign up to show your support.

**COMING SOON**

URGENT: the proposed rules from manta ray tour operators will be submitted to the DLNR by Feb. 23, 2023. Please sign up to show your support for these rules today.