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 ( printed 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° N to 20° N;

2. The North Pacific right whale ( Eubalaena japonica), historically ranging in the North Pacific Ocean from latitudes 70° N to 20° 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 ( printed 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.

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

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.

2. In § 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:

50 CFR CHAPTER II

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.

4. In § 222.102, the definition for “Right whale” is revised to read as follows:

50 CFR CHAPTER II

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

Authority: 16 U.S.C. 1533.

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

68 FR 17560