2011-6137. Listing Endangered and Threatened Species: Correction To Codify in the Code of Federal Regulations Endangered Status for Southern Resident Killer Whales

AGENCY:

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

ACTION:

Final rule; correcting amendment.

SUMMARY:

We, NMFS, announce a correcting amendment to the Code of Federal Regulations to identify the Southern Resident killer whale (Orcinus orca) distinct population segment (DPS) as an endangered species under the Endangered Species Act of 1973 (ESA).

DATES:

Effective March 16, 2011.

FOR FURTHER INFORMATION CONTACT:

For further information regarding this correcting amendment contact Steve Stone, NMFS, Northwest Region, 503-231-2317; or Marta Nammack, NMFS, Office of Protected Resources, 301-713-1401.

SUPPLEMENTARY INFORMATION:

Background and Correcting Amendment

We listed the Southern Resident killer whale DPS as an endangered species under the ESA on November 18, 2005 (70 FR 69903). That final rule became effective on February 16, 2006, and the species was included in the enumeration of endangered species at 50 CFR 224.101(b). In separate and unrelated rulemaking, we published a final rule on March 6, 2008 (73 FR 12024), to list the North Pacific right whale (Eubalaena. japonica) and North Atlantic right whale (E. glacialis) as separate endangered species under the ESA. In that more recent rule the Southern Resident killer whale DPS was inadvertently dropped from the enumeration of endangered species at 50 CFR 224.101(b). This correcting amendment remedies that oversight.

Classification

The Assistant Administrator (AA) finds good cause under 5 U.S.C. 553(b)(B) to waive prior notice and opportunity for public comment because it is impracticable, unnecessary, and contrary to the public interest. We fully intended the Southern Resident killer whale DPS to be listed as an endangered species under the ESA and expressly stated this intent in the November 2005 final rule (70 FR 69903; November 18, 2005). We also previously provided public notice in the Federal Register and considered public comments on the 2004 proposed rule (69 FR 76673; December 22, 2004). Further, this DPS was correctly included in the October 2006 and 2007 issues of the CFR. However, due to a clerical error in unrelated rulemaking on March 6, 2008 (73 FR 12024), the DPS was omitted from the list of endangered species published at 50 CFR 224.101 in the October 2008 and subsequent issues of the CFR. In order to avoid regulatory confusion and ensure continuous protections and enforcement capability for the Southern Resident killer whale, the AA waives the requirement for prior notice and opportunity for public comment.

For the same reasons above, the AA finds good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effectiveness and makes this rule effective immediately upon publication.

Because notice and opportunity for comment are not required pursuant to 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. Therefore, a regulatory flexibility analysis is not required and has not been prepared.

It has been determined that this rule is not significant for purposes of Executive Order 12866.

References

Copies of previous Federal Register notices and related reference materials are available on the Internet at http://www.nwr.noaa.gov,, or upon request (see FOR FURTHER INFORMATION CONTACT section above).

List of Subjects in 50 CFR Part 224

• Endangered marine and anadromous species

Dated: March 10, 2011.

Samuel D. Rauch III,

Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

For the reasons set forth in the preamble, 50 CFR part 224 is corrected by making the following correcting amendment:

PART 224—ENDANGERED MARINE AND ANADROMOUS SPECIES

1. 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.

§ 224.101

[Amended]

2. In § 224.101, paragraph (b), add “Killer whale ( Orcinus orca), Southern Resident distinct population segment, which consists of whales from J, K and L pods, wherever they are found in the wild, and not including Southern Resident killer whales placed in captivity prior to listing or their captive born progeny” following “Indus River dolphin (Platanista minor);”.