04-26413. Regulations Governing the Approach to North Atlantic Right Whales

AGENCY:

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

ACTION:

Final rule; technical amendment.

SUMMARY:

NMFS issues a correcting amendment to clarify the regulations that prohibit approaches within 500 yards (460 m) of North Atlantic right whales (right whales). The purpose of this action is to correct errors contained in the text of the regulation that inadvertently refers to regulations contained in the previous paragraph within 50 CFR part 224. These technical amendments will not change the regulations for approaching right whales found in § 224.103.

DATES:

Effective November 30, 2004.

FOR FURTHER INFORMATION CONTACT:

Brian D. Hopper, NMFS, Northeast Region, 978-281-9328; Barb Zoodsma, NMFS, Southeast Region, 904-321-2806; or Kristy Long, NMFS, Office of Protected Resources, 301-713-2322.

SUPPLEMENTARY INFORMATION:

Background

The interim final rule implementing approach limits for right whales was published on February 13, 1997 (62 FR 6729), and codified at 50 CFR 222.32, subpart D of part 222. As part of an action taken to consolidate and reorganize existing NMFS regulations implementing the Endangered Species Act (ESA) pursuant to the President's Regulatory Reinvention Initiative (RRI), subpart D was removed from part 222 and relocated to part 224 (64 FR 14066, March 23, 1999). As a result of this reorganization, a new section was created in 50 CFR part 224 for the special prohibitions for endangered marine mammals, which included the regulations for approaching right and humpback whales.

Subsequent to the 1999 reorganization initiative, NMFS published a final rule to establish approach regulations for humpback whales within Alaskan waters (66 FR 29502, May 31, 2001). The final rule redesignated paragraphs (b) and (c) under § 224.103, as paragraphs (c) and (d), respectively, and a new paragraph (b) was added for the Alaska humpback whale approach regulations. However, the final rule did not make the changes to the right whale approach regulations, which were previously codified as paragraph (b), necessary to reflect the redsignation as paragraph (c). In other words, the subparagraphs under the right whale approach regulations still referred to its previous location in paragraph (b).

This rule does not substantively impact the public's current expectations, increase the scope of the regulated community, or add any new requirements to these regulations. This rule makes a minor change to the regulations for approaching right whales, which corrects an unintended error caused by a previous final rule that reordered the paragraphs in § 224.103.

Need for Correction

As published, the regulations governing approaches to right whales contain errors that may be misleading and need to be corrected.

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 5 U.S.C. 553(b)(B). Such procedures would be unnecessary because the changes made in this rule do not substantively change the regulations for approaching right whales. Therefore, it does not alter the scope of the regulated community nor add any new requirements. For the same reasons, the AA finds that good cause exists to waive the 30-day delay in effective date. Any delay in implementing this technical change would be impracticable, unnecessary, and contrary to the public interest. A delay in implementing these changes would be unnecessary because they do not substantively alter the regulations for approaching right whales by increasing the scope of the regulated community or adding any new requirements. Accordingly, pursuant to 5 U.S.C. 553(d)(3), a delay in the effective date is waived.

In addition, because 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.

This action is not subject to review under Executive Order 12866 because the changes made are non-substantive.

This final rule does not impact the human environment, therefore, NMFS has determined that this action is not subject to the analytical requirements of the National Environmental Policy Act.

This final rule does not contain policies with federalism implications under Executive Order 13132.

List of Subjects in 50 CFR part 224

• Endangered and threatened species
• Reporting and recordkeeping requirements

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

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.

§ 224.103

[Amended]

2. In the table below, in § 224.103, for each paragraph indicated in the left column, remove text from the middle column from wherever it appears in the paragraph, and add the text indicated in the right column:

Paragraph	Remove	Add
(c)(1)	(b)(3)	(c)(3)
(c)(1)(ii)	(b)(2)	(c)(2)
(c)(2)	(b)(3)	(c)(3)
(c)(3)(i)	(b)(1) and (b)(2)	(c)(1) and (c)(2)
(c)(3)(ii)	(b)(1) and (b)(2)	(c)(1) and (c)(2)
(c)(3)(iii)	(b)(1) and (b)(2)	(c)(1) and (c)(2)
(c)(3)(iv)	(b)(1) and (b)(2)	(c)(1) and (c)(2)
(c)(3)(v)	(b)(2)	(c)(2)

Dated: November 23, 2004.

John Oliver,

Deputy Assistant Administrator for Operations, National Marine Fisheries Service.