[Federal Register Volume 68, Number 69 (Thursday, April 10, 2003)]
[Rules and Regulations]
[Pages 17560-17562]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-8683]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 17, 222 and 226

[Docket No. 030318064-3064-01; I.D. 012903C]
RIN 0648-AQ74


Endangered Fish and Wildlife; Notice of Technical Revision to 
Right Whale Nomenclature and Taxonomy Under the U.S. Endangered Species 
Act

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Department of Commerce.

ACTION: Final rule.

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SUMMARY: NMFS is issuing a final rule concerning the nomenclature and 
taxonomy of the North Atlantic right whale, North Pacific right whale, 
and the southern right whale. The first change updates the formerly-
used genus Balaena to the genus Eubalaena to conform to the taxonomy 
currently accepted by the scientific community and supported by the 
scientific literature. The second change reflects the genetic 
distinctiveness now recognized between Pacific and Atlantic right whale 
populations in the northern hemisphere. Due to recent genetic findings, 
NMFS is changing the species name of the northern right whale as 
follows: the North Atlantic right whale, Eubalaena glacialis, and the 
North Pacific right whale, Eubalaena japonica. These technical changes 
will not change the listing status of these species under the 
Endangered Species Act (ESA)(all three remain ``endangered'').

DATES: Effective on May 12, 2003.

ADDRESSES: Supporting documentation is available for public inspection, 
by request from NMFS, National Marine Fisheries Service, 1315 East-West 
Highway, Silver Spring, MD 20910-3226.

FOR FURTHER INFORMATION CONTACT: Aleria Jensen or Gregory Silber at 
(301) 713-2322.

SUPPLEMENTARY INFORMATION: The right whale was originally described as 
Eubalaena glacialis (Muller, 1776). However, the technical literature 
on the nomenclature has not been clear over the course of the last 
three decades. The species was initially listed as Eubalaena glacialis 
by the U.S. Fish and Wildlife Service in the 1973 Edition of Threatened 
Wildlife of the United States (USFWS, 1973). Subsequently, however, 
some authorities have put right and bowhead whales in the same genus, 
Balaena (Rice, 1977). In addition, the current List of Endangered and 
Threatened Wildlife lists the right whale as Balaena glacialis (incl. 
australis) (50 CFR 17.11). Despite these differences in listing, the 
genus Eubalaena has been most widely recognized and commonly used in 
the scientific community as the genus associated with all right whale 
species. Virtually all related scientific literature and popular 
literature on marine mammals (see, for example, Cummings, 1985; Hall 
and Kelson, 1959; Jefferson et al., 1993; Klinowska, 1991) historically 
use the genus Eubalaena to identify right whales as originally named by 
Muller in 1776.
    Eubalaena is also the name accepted by both the International 
Whaling Commission (IWC) and NMFS. The IWC 2001 report on the world-
wide status of right whales uses the genus Eubalaena (Best et al., 
2001). NMFS has used this nomenclature in its Stock Assessment Reports, 
the Final Recovery Plan for the Northern Right Whale (NMFS, 1991), and 
other technical documents dating back to at least 1991. Therefore, this 
nomenclatorial change would make the List consistent with the generally 
accepted use by the scientific community, IWC reports, and NMFS 
technical documents for over a decade. Thus, to recognize the currently 
accepted genus for right whale species worldwide, the first technical 
revision in this rule is to correct right whale nomenclature on the 
list from genus Balaena to genus Eubalaena.
    The second change reflects new evidence from recent genetic studies 
regarding the taxonomic classification of right whales. Historically, 
right whales were classified as two distinct species, Eubalaena 
glacialis in the northern hemisphere (Pacific and Atlantic Ocean 
basins) and Eubalaena australis in the southern hemisphere, based on a 
morphological difference in the orbital region of the skull (Muller, 
1954; Rosenbaum et al., 2000). Other interpretations had given North 
Pacific right whales full species status as Eubalaena japonica 
(Lacepede 1818) or treated the population as a subspecies of Eubalaena 
glacialis. Prior to the current technical revision, North Pacific right 
whales have been most widely recognized as an intraspecific population 
of northern right whales (Rice, 1998). The taxonomic structure of

[[Page 17561]]

right whales had not been analyzed in a comprehensive manner for the 
purposes of conservation and systematics until recent genetic studies. 
The generally accepted analyses by Rosenbaum et al. (2000) conclude 
that the right whale should be regarded as three separate species as 
follows:
    1. The North Atlantic right whale (Eubalaena glacialis), 
historically ranging in the North Atlantic Ocean from latitudes 60[deg] 
N to 20[deg] N;
    2. The North Pacific right whale (Eubalaena japonica), historically 
ranging in the North Pacific Ocean from latitudes 70[deg] N to 20[deg] 
N; and
    3. The southern right whale (Eubalaena australis), historically 
ranging throughout the southern hemisphere's oceans.
    Previous genetic studies concluded there was sufficient haplotypic 
divergence between North Atlantic and South Atlantic right whales to 
indicate that the northern and southern populations have not interbred 
for approximately 3-12.5 million years (Malik et al., 2000; Schaeff et 
al., 1997). Through an analysis of mitochondrial DNA control region 
sequences isolated from skin tissue biopsy, stranded animals, and 
historical whaling samples, Rosenbaum et al.(2000) supported these 
conclusions and, in addition, demonstrated a relatively strong 
historical separation of North Atlantic, North Pacific, and Southern 
Ocean right whale lineages (i.e., no haplotypes were shared among these 
three populations). Their findings led to the conclusion that these 
populations are three distinct evolutionary entities. In addition, the 
probability of future interbreeding among the three lineages is 
extremely low considering current distribution. The International 
Whaling Commission's Scientific Committee formally recognized the 
three-species classification for right whales at its 2000 meeting in 
Adelaide, Australia (IWC 2000).
    Conservation measures, recovery planning, and Federal consultations 
have been treated distinctly for each of these species. For over a 
decade, the treatment of these species as discrete entities has been 
well-established in agency science and management. Draft recovery plans 
are currently in review for both North Atlantic and North Pacific right 
whales, designated in these plans as Eubalaena glacialis and Eubalaena 
japonica. Issues of critical habitat have been addressed separately for 
both species under U.S. management authority.
    Refining the taxonomy of these endangered cetaceans is critical to 
the recovery planning and conservation of these species. Genetic data 
now provide unequivocal support to distinguish three right whale 
lineages as separate phylogenetic species. The revised designation of 
these populations allows for consistent scientific practice and 
management policies in recovering these populations.
    The following NMFS documents will be affected by this technical 
revision:
    1. MMPA Stock Assessment Reports for Alaska currently refer to 
stocks of right whales in the North Pacific as ``Northern Right Whale, 
Eubalaena glacialis''. This will be changed in all future Stock 
Assessment Reports to read ``North Pacific Right Whale, Eubalaena 
japonica''.
    2. All Biological Opinions prepared under section 7 of the ESA will 
now consider the North Pacific, North Atlantic and southern right 
whales as separate species for the purposes of establishing baseline 
information and conducting consultations on Federal actions with the 
potential to affect the taxa.
    3. The ``Final Recovery Plan for the Northern Right Whale, 
Eubalaena glacialis'' (NMFS, 1991) has been divided, in the process of 
updating the plan, into two separate draft recovery plans: ``Updated 
Recovery Plan for the North Atlantic right whale, Eubalaena glacialis'' 
and ``Updated Recovery Plan for the North Pacific right whale, 
Eubalaena japonica.'' These will become final as separate recovery 
plans.
    These changes result in technical revisions to provisions related 
to right whales in 50 CFR parts 17, 222, and 226. However, all right 
whales will remain listed as endangered under the Endangered Species 
Act and subject to the same protections as existed prior to these 
changes.

Classification

    The Assistant Administrator for Fisheries, NMFS (AA) finds that 
good cause exists to waive the requirement for prior notice and the 
opportunity for comment, pursuant to authority set forth at 5 U.S.C. 
553(b)(B). Such procedures would be unnecessary, as the taxonomic 
changes made in this rule are technical and reflect actions already 
taken in the scientific community. This rule does not change the 
listing status of right whales under the ESA; therefore, it does not 
increase the scope of the regulated community nor add any new 
requirements.
    This action is not subject to review under Executive Order 12866. 
In addition, because a general notice of proposed rulemaking is not 
required under 5 U.S.C. 553, or any other law, the analytical 
requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., 
are inapplicable.
    Although this final rule simply makes taxonomic changes relative to 
a listing determination that NMFS has already made under the ESA and 
does not change the listing status of right whales under the ESA, NOAA 
has concluded that ESA listing determinations are exempt from 
requirements of the National Environmental Policy Act. Therefore, these 
taxonomic changes relative to a listing determination are also exempt 
from these requirements. (See NOAA Administrative Order 216-6.)
    This final rule does not contain policies with federalism 
implications under Executive Order 13132.

Literature Cited

    Best, P.B., J.L. Bannister, R.L. Brownell Jr., and G.P. Donovan 
(Eds). 2001. Right Whales: Worldwide Status. The Journal of Cetacean 
Research and Management, Special Issue 2. International Whaling 
Commission, Cambridge, UK. 309 pp.
    Cummings, W.C. 1985. Right Whales: Eubalaena glacialis (Muller, 
1776) and Eubalaena australis (Desmoulins, 1822). In: Ridgway, S.H. and 
R.J. Harrison, Eds. Handbook of Marine Mammals, Vol. 3. The Sirenians 
and Baleen Whales. Academic Press, London. 362 pp.
    Hall, R.E. and K.E. Kelson. 1959. The Mammals of North America. The 
Ronald Press Company, New York. 546 pp.
    Jefferson, T.A., S. Leatherwood, and M.A. Webber. 1993. Marine 
Mammals of the World. United Nations Environment Programme, Food and 
Agriculture Organization of the United Nations, Rome. 320 pp.
    Klinowska, M. 1991. Dolphins, Porpoises and Whales of the World. 
The IUCN Red Data Book. IUCN, Gland, Switzerland and Cambridge, U.K. 
429 pp.IWC. 2000. Report of the Scientific Review Committee. 52\nd\ 
Annual Meeting, Adelaide, Australia.
    Lacepede. 1818. Mem. Mus. Hist. Nat. Paris 4:409, 473.
    Malik, S; Brown, MW; Kraus, SD; White, BN. 2000. Analysis of 
mitochondrial DNA diversity within and between North and South Atlantic 
right whales. Marine Mammal Science, Vol. 16, no. 3, pp. 545-558.
    Muller. 1776. B[alaena] glacialis. Zool. Danicae prodr., 7 pp.
    Muller, J. 1954. Observations of the orbital regions of the skull 
of the Mystacoceti. Zoologische Mededelingen, 32, 239-290.
    National Marine Fisheries Service. 1991. Final recovery plan for 
the Northern right whale Eubalaena

[[Page 17562]]

glacialis. U.S. Dept. of Commerce, NMFS, Silver Spring, MD. 86 pp.
    Rice, D.W. 1977. A list of marine mammals of the world. U.S. Dept. 
of Commerce, NOAA Technical Report NMFS SSRF-711, 15 pp.
    Rice D.W. 1998. Marine Mammals of the World: Systematics and 
Distribution. Allen Press-The Society for Marine Mammalogy, Lawrence, 
Kansas.
    Rosenbaum, CH; Brownell, LR; Brown, WM; et al. 2000. World-wide 
genetic differentiation of Eubalaena: questioning the number of right 
whale species. Molecular Ecology, Vol. 9, no. 11, pp. 1793-1802.

    Schaeff, CM; Kraus, SD; Brown, MW; Perkins, JS; Payne, R; White, 
BN. 1997. Comparison of genetic variability of North and South Atlantic 
right whales (Eubalaena), using DNA fingerprinting. Canadian Journal of 
Zoology, Vol. 75, no. 7, pp. 1073-1080.
    U.S. Fish and Wildlife Service. 1973. Threatened wildlife of the 
United States. Bureau of Sport Fisheries and Wildlife, Washington DC 
289 pp.

List of Subjects in 50 CFR Parts 17, 222 and 226

    Endangered and threatened species.

    Dated: April 2, 2003.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

0
For the reasons set out in the preamble, 50 CFR part 17, 50 CFR part 
222, and 50 CFR part 226 are amended as follows:

50 CFR CHAPTER 1

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

0
1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

0
2. In Sec.  17.11, paragraph (h), in the table that contains the list 
of endangered and threatened wildlife, remove the ``Whale, right'' 
entry in between ``Whale, humpback'' and ``Whale, Sei'' and add in its 
place the following three entries to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                Species                                                               Vertebrate
------------------------------------------------------------------------                              population
                                                                                                         where                When    Critical   Special
                                                                                Historic Range        endangered   Status    listed    habitat    rules
                  Common Name                       Scientific Name                                       or
                                                                                                      threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
Mammals.......................................  .......................  ...........................  ..........  ........  ........  ........  ........
 
                                                                      * * * * * * *
Whale, North Atlantic right...................      Eubalaena glacialis                      Oceanic     Entire          E         3   226.203   224.103
Whale, North Pacific right....................       Eubalaena japonica                      do.....    do.....    do.....   do.....        NA        NA
Whale, Southern right.........................      Eubalaena australis                      do.....    do.....    do.....   do.....        NA        NA
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

50 CFR CHAPTER II

PART 222--GENERAL ENDANGERED AND THREATENED MARINE SPECIES

0
3. The authority citation for part 222 continues to read as follows:

    Authority: 16 U.S.C. 1531 et seq.; 16 U.S.C. 742a et seq.; 31 
U.S.C. 9701.

0
4. In Sec.  222.102, the definition for ``Right whale'' is revised to 
read as follows:


Sec.  222.102  Definitions.

* * * * *
    Right whale means, as used in Sec.  224.103 of this chapter, any 
whale that is a member of the western North Atlantic population of the 
North Atlantic right whale species (Eubalaena glacialis).
* * * * *

50 CFR CHAPTER II

PART 226--DESIGNATED CRITICAL HABITAT

0
5. The authority citation for part 226 continues to read as follows:

    Authority: 16 U.S.C. 1533.

0
6. In Sec.  226.203, the section heading and the introductory text are 
revised to read as follows:


Sec.  226.203  Critical Habitat for North Atlantic right whales.

NORTH ATLANTIC RIGHT WHALE (Eubalaena glacialis)
* * * * *
[FR Doc. 03-8683 Filed 4-9-03; 8:45 am]
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