[Federal Register Volume 70, Number 7 (Tuesday, January 11, 2005)]
[Rules and Regulations]
[Pages 1830-1832]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-527]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 222, 224 and 226

[Docket No. 041221357-4357-01; I.D. 113004A]
RIN 0648-AS94


Endangered Marine and Anadromous Species; Final Rule to Remove 
Technical Revisions to Right Whale Listing Under the U.S. Endangered 
Species Act

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

ACTION: Final rule.

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SUMMARY: NMFS issues a final rule to remove two technical revisions 
made in an April 2003 final rule to the northern right whale (Eubalaena 
sp.) listing under the Endangered Species Act (ESA). The technical 
revisions purported to change: the way right whales are listed by 
splitting the endangered northern right whale into two separate 
endangered species - North Pacific right whale and North Atlantic right 
whale; the definition of ``right whale'' as it applies to the right 
whale approach regulations; and the section heading for right whale 
critical habitat. NMFS has determined that issuance of the 2003 final 
rule did not comply with the requirements of the ESA. This final rule 
corrects these mistakes by removing these technical revisions to 50 CFR 
and reinstating the language that existed before April 2003.

DATES: This rule takes effect on January 11, 2005.

ADDRESSES: Supporting documentation is available by request from the 
Chief, Endangered Species Division, NMFS, 1315 East-West Highway, F/
PR3, Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT: Marta Nammack, NMFS, Endangered 
Species Division, (301) 713-1401, ext. 180.

SUPPLEMENTARY INFORMATION:

Background

Right Whale Listing

    From 1970 through 1975 the endangered and threatened species lists 
maintained by NMFS (50 CFR 224.101(b)) and the U.S. Fish and Wildlife 
Service (FWS) both identified endangered right whales as ``Right whales 
(Eubalaena spp.).'' In 1980 the FWS list identified the listing as 
``Whale, right...Balaena glacialis'' and in

[[Page 1831]]

1993, as ``Whale, right...Balaena glacialis (inc. australis),'' but the 
NMFS list continued to identify the listed entities as ``Right whales 
(Eubalaena spp.).'' Through the years taxonomists have had different 
opinions on the proper genus name for right whales and on the number of 
species of right whales, but NMFS interpreted the listing to mean that 
two separate species were listed as endangered: northern right whale 
(Eubalaena glacialis) and southern right whale (Eubalaena australis). 
This was consistent with the view of most taxonomists at the time of 
listing.

April 2003 Technical Revision

    On April 10, 2003, NMFS (henceforth, we) published a final rule (68 
FR 17560) that purported to split the single endangered northern right 
whale species listed in 50 CFR 17.11 (Whale, right - Balaena glacialis) 
into two endangered species - North Atlantic right whale (Eubalaena 
glacialis) and North Pacific right whale (Eubalaena japonica). The 
intent of replacing the genus Balaena with Eubalaena was to correct the 
genus name in the FWS listing, a technical change. The intent of 
changing the listing from one northern right whale species to two 
species North Pacific right whale and North Atlantic right whale was to 
recognize the best available scientific information, which indicated 
that the population in the North Atlantic was genetically distinct from 
the population in the North Pacific. At the time, we considered this 
second change also to be a technical change that did not require a 
notice and comment period. We did not make the same change to 50 CFR 
224.101(b) because we believed that ``Right whales (Eubalaena spp)'' 
would already include any species that is subsequently recognized 
within the same genus.
    To be consistent with the changes described above, we also amended: 
(1) the definition of ``right whale'' in 50 CFR 222.102 so that the 
approach regulations in 50 CFR 224 would apply only to western North 
Atlantic right whales; and (2) the heading of 50 CFR 226.203 to 
indicate that critical habitat was designated only for the North 
Atlantic right whale.
    The technical revision did not purport to affect the status or 
taxonomy of the southern right whale.

ESA Section 4 Listing Procedure

    The process for determining whether species should be added to the 
Federal list of threatened and endangered species under the ESA is 
specified in section 4 of the ESA and informed by the definition of 
``species,'' ``endangered species,'' and ``threatened species'' found 
in section 3. However, the final rule we published in April 2003 was 
procedurally and substantively flawed. First, we did not follow the 
public notice and comment procedural requirements outlined in section 4 
for listing a species as endangered or threatened. Second, we did not 
meet the ESA's substantive requirements of conducting a review of the 
status of the species to determine whether each species is endangered 
or threatened as a result of any of the five listing factors in that 
section.
    In addition, we did not have the authority to make any changes to 
50 CFR 17.11 because 50 CFR part 17 is solely within the jurisdiction 
of the FWS. Because we did not have the authority to amend 50 CFR 
17.11, the changes we purported to make in that part are not valid. The 
status of right whales reverts to the pre-April 2003 status such that 
all right whales are endangered either as Eubalaena glacialis (Northern 
right whales) or Eubalaena australis (Southern right whales). We will 
request that FWS remove the changes to eliminate confusion regarding 
the listed entities.

Final Rule

    We also are removing the April 2003 technical revisions to 50 CFR 
222.102 and 50 CFR 226.203 so that they revert to the pre-April 2003 
language. This will amend the definition of ``right whale'' as used in 
the right whale approach regulations found at 50 CFR 224 to read, 
``Right whale means, as used in Sec.  224.103(c), any whale that is a 
member of the western North Atlantic population of the northern right 
whale species (Eubalaena glacialis).'' This will also amend the heading 
in 50 CFR 226.203 to read, ``Sec.  226.203 Critical Habitat for 
northern right whales--Northern Right Whale (Eubalaena glacialis).'' 
For the sake of consistency, we are also changing the heading of 50 CFR 
224.103(c) from ``Approaching North Atlantic right whales--(1) 
Prohibitions'' to ``Approaching right whales--(1) Prohibitions.''

Next Steps under Section 4

    In order to be eligible for listing under the ESA as either 
endangered or threatened, a group of organisms must constitute a 
``species,'' which the ESA defines to include ``any subspecies of fish 
or wildlife or plants, and any distinct population segment of any 
species or vertebrate fish or wildlife which interbreeds when mature.'' 
Under section 4 of the ESA, the listing determination must be made 
``solely on the basis of the best scientific and commercial data 
available.'' When considering a species for listing under the ESA, NMFS 
considers whether a species is endangered or threatened as a result of 
any of five statutorily enumerated factors: (1) the present or 
threatened destruction, modification, or curtailment of its habitat or 
range; (2) overutilization for commercial, recreational, scientific, or 
educational purposes; (3) disease or predation; (4) the inadequacy of 
existing regulatory mechanisms; and (5) other natural or manmade 
factors affecting its continued existence.
    We plan to conduct a status review of the northern right whale to 
determine whether it consists of more than one species as defined by 
the ESA. If we make that determination, we will evaluate the status of 
each species to determine whether it is endangered or threatened as a 
result of any of the five listing factors, publish a summary of our 
conclusions regarding the listing factors, and, if warranted, publish a 
proposed rule to list each entity in accordance with section 4 of the 
ESA and 50 CFR 424.16. In addition, the notice of a proposed rule to 
list any species would contain the complete text of the proposed rule, 
a summary of the data on which the proposed rule is based (including, 
as appropriate, citation to pertinent information sources), and the 
relationship of such data to the proposed rule.
    In addition, section 4(a)(3) of the ESA requires that, to the 
maximum extent prudent and determinable, critical habitat be designated 
for a species concurrent with making a determination that it is 
endangered or threatened. Therefore, if we determine that we should 
list species of right whales different from the northern right whale, 
we will also designate, to the maximum extent prudent and determinable, 
any habitat determined to be critical habitat of each of the new 
species proposed for listing. We will issue proposed and final rules to 
make the necessary determinations regarding critical habitat for any 
new species to be listed. We plan to complete this process by the end 
of 2006.

Classification

Administrative Procedure Act

    The Assistant Administrator for Fisheries, NMFS, finds good cause 
exists to waive the requirement for prior notice and the opportunity 
for comment pursuant to 5 U.S.C. 553(b)(B) as well as the requirement 
for a delay in the effective date pursuant to 5 U.S.C. 553(d)(3). Such 
procedures are unnecessary because this rule merely

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removes changes in the CFR that are not valid because they were never 
promulgated properly.

Executive Order 13132 - Federalism

    Executive Order 13132 requires agencies to take into account any 
federalism impacts of regulations under development. It includes 
specific consultation directives for situations where a regulation will 
preempt state law, or impose substantial direct compliance costs on 
state and local governments (unless required by statute). Neither of 
those circumstances is applicable to this rule.

Executive Order 12866

    This final rule is exempt from review under Executive Order 12866.

Regulatory Flexibility Act

    Because prior notice and opportunity for public comment are not 
required for this rule by 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.

List of Subjects

50 CFR Part 222

    Administrative practice and procedure, endangered and threatened 
species, exports, imports, reporting and recordkeeping requirements, 
transportation.

50 CFR Part 224

    Administrative practice and procedure, endangered and threatened 
marine species, exports, imports, reporting and recordkeeping 
requirements, transportation.

50 CFR Part 226

    Endangered and threatened species.

    Dated: January 4, 2004.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
For the reasons set out in the preamble, 50 CFR parts 222, 224 and 226 
are amended as follows:

PART 222--GENERAL ENDANGERED AND THREATENED MARINE SPECIES

0
1. 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
2. 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(c), any whale that is a 
member of the western North Atlantic population of the northern right 
whale species (Eubalaena glacialis).
* * * * *

PART 224--ENDANGERED MARINE AND ANADROMOUS SPECIES

0
3. The authority citation for part 224 continues to read as follows:

    Authority: 16 U.S.C. 1531-1543 and 16 U.S.C. 1361 et seq.

0
4. In Sec.  224.103, section heading of paragraph (c) is revised to 
read as follows:


Sec.  224.103  Special prohibitions for endangered marine mammals.

* * * * *
    (c) Approaching right whales--(1) Prohibitions.
* * * * *

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 northern right whales.

    Northern Right Whale (Eubalaena glacialis)
* * * * *
[FR Doc. 05-527 Filed 1-10-05; 8:45 am]
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