[Federal Register Volume 87, Number 134 (Thursday, July 14, 2022)]
[Rules and Regulations]
[Pages 42104-42105]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-14973]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 216
[Docket No. 210901-0173]
Swim With and Approach Regulation for Hawaiian Spinner Dolphins
Under the Marine Mammal Protection Act; Ratification of Regulation
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Ratification.
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SUMMARY: NOAA is publishing notification of the NOAA Administrator's
ratification of a rule.
DATES: The ratification was signed on July 8, 2022.
FOR FURTHER INFORMATION CONTACT: Kevin Brindock, NMFS, Pacific Islands
Region, Deputy Assistant Regional Administrator, Protected Resources
Division, (808) 725-5146; or Trevor Spradlin, NMFS, Office of Protected
Resources, Deputy Chief, Marine Mammal and Sea Turtle Conservation
Division, Office of Protected Resources, (301) 427-8402.
SUPPLEMENTARY INFORMATION: On July 8, 2022, the Under Secretary of
Commerce for Oceans and Atmosphere and NOAA Administrator, Dr. Richard
W. Spinrad, ratified a final rule issued by NMFS on September 28, 2021,
that restricts swimming with and approaching Hawaiian spinner dolphins
within 50 yards (45.7 m) in designated waters of Hawaii, subject to
certain exceptions. See Swim With and Approach Regulation for Hawaiian
Spinner Dolphins under the Marine Mammal Protection Act, 86 FR 53818
(Sept. 28, 2021) (Approach Rule). NOAA is now publishing the
ratification in the Federal Register out of an abundance of caution.
Neither the ratification nor the publication is a statement that the
ratified action would be invalid absent the ratification, whether
published or otherwise.
Appendix
Ratification
I, Richard W. Spinrad, hereby declare as follows:
As the Under Secretary of Commerce for Oceans and Atmosphere and
the National Oceanic and Atmospheric Administration (NOAA)
Administrator, I am affirming and ratifying a prior action by the
Assistant Administrator for NOAA Fisheries, Janet Coit. On September
28, 2021, the National Marine Fisheries Service (NMFS or NOAA
Fisheries) published in the Federal Register a final rule that
restricts swimming with and approaching Hawaiian spinner dolphins
within 50 yards (45.7 m) in designated coastal waters of Hawaii,
subject to designated exceptions. See Swim With and Approach
Regulation for Hawaiian Spinner Dolphins Under the Marine Mammal
Protection Act, 86 FR 53818 (Sept. 28, 2021) (Approach Rule). The
Approach Rule was approved by the Assistant Administrator for NOAA
Fisheries, Janet Coit, and signed by the Deputy Assistant
Administrator for NOAA Fisheries, Samuel Rauch. Questions have been
raised in litigation concerning the authority of these officials to
issue the Approach Rule.
I have the authority to ratify the Approach Rule. President
Biden appointed me to the position of Under Secretary of Commerce
for Oceans and Atmosphere and NOAA Administrator on April 22, 2021,
and the Senate confirmed my appointment on June 17, 2021. I was
sworn in to office on June 22, 2021. In my capacity as NOAA
Administrator, I oversee NOAA, a bureau within the Department of
Commerce. Among other duties, NOAA is responsible for implementing
various Federal laws that provide for the conservation and
management of protected species and their habitats, including the
Marine Mammal Protection Act (MMPA), 16 U.S.C. 1371, et seq.,
through NMFS, a subunit within NOAA. I possess the requisite
statutory authority under sections 103 and 112 of the MMPA, and
Department of Commerce Department Organization Order 10-15, to
promulgate the Approach Rule as described below. Pursuant to the
NOAA Organization Handbook Transmittal No. 61, the authority to
perform functions under the MMPA has been redelegated to the
Assistant Administrator for NOAA Fisheries; however, I retain the
authority to take any action that is redelegated.
Out of an abundance of caution, and to remove any doubt as to
its validity, I have independently evaluated the Approach Rule and
the basis for adopting it, and I now affirm and ratify the Approach
Rule without deference to Assistant Administrator Coit's prior
decision. I state that I have knowledge of the contents, purpose,
and requirements of the Approach Rule and its rulemaking record. I
undertake this action based on my careful review of the Approach
Rule, my knowledge of its provisions, and my independent judgment
that the Approach Rule was and remains necessary to protect Hawaiian
spinner dolphins, a protected species under the MMPA, from illegal
``take'' by people wishing to closely swim with or approach the
species. Pursuant to my authority as the NOAA Administrator, and
based on my independent review of the action and the reasons for
taking it, I hereby affirm and ratify the Approach Rule as of
September 28, 2021, including all regulatory analysis certifications
contained therein.
[[Page 42105]]
This action is taken without prejudice to any right to litigate
the validity of the Approach Rule as approved and published on
September 28, 2021. Nothing in this action is intended to suggest
any legal defect or infirmity in the approval or publication of the
Approach Rule.
Authority: 16 U.S.C. 1361 et seq.
Dated: July 8, 2022.
Richard W. Spinrad,
Under Secretary of Commerce for Oceans and Atmosphere and NOAA
Administrator.
[FR Doc. 2022-14973 Filed 7-13-22; 8:45 am]
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