[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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