[Federal Register Volume 78, Number 82 (Monday, April 29, 2013)]
[Proposed Rules]
[Pages 25044-25047]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-10024]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 224

[Docket No. 130321272-3272-01]
RIN 0648-XC589


Listing Endangered or Threatened Species: 90-Day Finding on a 
Petition To Include the Killer Whale Known as Lolita in the Endangered 
Species Act Listing of Southern Resident Killer Whales, Request for 
Information

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

ACTION: 90-day petition finding; request for information.

-----------------------------------------------------------------------

SUMMARY: We, the National Marine Fisheries Service (NMFS), announce a 
90-day finding on a petition to include the Orcinus orca known as 
Lolita in the Endangered Species Act (ESA) listing of the Southern 
Resident killer whales. Lolita is a female killer whale, captured from 
the Southern Resident population in 1970, who resides at the Miami 
Seaquarium in Miami, Florida. The Southern Resident killer whale 
Distinct Population Segment (DPS) was listed as endangered under the 
ESA in 2005. We find that the petition, viewed in the context of 
information readily available in our files, presents substantial 
information indicating the petitioned action may be warranted. We are 
currently conducting a status review of Southern Resident killer 
whales. During this review, we will examine the application of the DPS 
policy and the listing with respect to Lolita. To ensure that the 
status review and our determination are comprehensive, we are 
soliciting scientific and commercial information pertaining to Lolita.

[[Page 25045]]


DATES: Scientific and commercial information pertinent to the 
petitioned action and DPS review must be received by June 28, 2013.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2013-0056, by any of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to http://www.regulations.gov/#!docketDetail;D=+NOAA-NMFS-2013-0056, click the 
``Comment Now!'' icon, complete the required fields, and enter or 
attach your comments.
     Mail: Submit written comments to Protected Resources 
Division, NMFS, Northwest Region, Protected Resources Division, 7600 
Sand Point Way NE. Attention--Donna Darm, Assistant Regional 
Administrator.
     Fax: (206) 526-6426; Attn: Donna Darm, Assistant Regional 
Administrator.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NMFS will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous). Attachments to electronic comments will be accepted in 
Microsoft Word, Excel, or Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT: Lynne Barre, NMFS Northwest Region, 
(206) 526-4745; Marta Nammack, NMFS Office of Protected Resources, 
(301) 427-8469.

SUPPLEMENTARY INFORMATION: 

ESA Statutory Provisions and Policy Considerations

    On January 25, 2013, we received a petition submitted by the People 
for the Ethical Treatment of Animals Foundation on behalf of the Animal 
Legal Defense Fund, Orca Network, Howard Garrett, Shelby Proie, Karen 
Munro, and Patricia Sykes to include the killer whale (Orcinus orca) 
known as Lolita in the ESA listing of the Southern Resident killer 
whales. Lolita is a female killer whale captured from the Southern 
Resident population in 1970, who currently resides at the Miami 
Seaquarium in Miami, Florida. Copies of the petition are available upon 
request (see ADDRESSES, above).
    In accordance with section 4(b)(3)(A) of the ESA, to the maximum 
extent practicable within 90 days of receipt of a petition to list or 
delist a species as threatened or endangered, the Secretary of Commerce 
is required to make a finding on whether that petition presents 
substantial scientific or commercial information indicating that the 
petitioned action may be warranted, and to promptly publish such 
finding in the Federal Register (16 U.S.C. 1533(b)(3)(A)). When we find 
that substantial scientific or commercial information in a petition 
indicates that the petitioned action may be warranted, as is the case 
here, we are required to promptly commence a review of the status of 
the species concerned, during which we will conduct a comprehensive 
review of the best available scientific and commercial information. 
Within 12 months of receipt of a petition we are to conclude the review 
with a determination that the petitioned action is not warranted, or a 
proposed determination that the action is warranted. Under specific 
facts, we may also issue a determination that the action is warranted 
but precluded. Because the finding at the 12-month stage is based on a 
comprehensive review of all best available information, as compared to 
the more limited scope of review at the 90-day stage, which focuses on 
information set forth in the petition and information readily available 
in our files, this 90-day finding does not prejudge the outcome of the 
status review.
    Under the ESA, the term ``species'' means a species, a subspecies, 
or a DPS of a vertebrate species (16 U.S.C. 1532(16)). A joint NMFS-
USFWS policy clarifies the Services' interpretation of the phrase 
``Distinct Population Segment,'' or DPS (61 FR 4722; February 7, 1996). 
The DPS Policy requires the consideration of two elements when 
evaluating whether a vertebrate population segment qualifies as a DPS 
under the ESA: Discreteness of the population segment in relation to 
the remainder of the species, and, if discrete, the significance of the 
population segment to the species.
    A species is ``endangered'' if it is in danger of extinction 
throughout all or a significant portion of its range, and 
``threatened'' if it is likely to become endangered within the 
foreseeable future throughout all or a significant portion of its range 
(ESA sections 3(6) and 3(20), respectively, 16 U.S.C. 1532(6) and 
(20)). Pursuant to the ESA and our implementing regulations, we 
determine whether a species is threatened or endangered based on any 
one or a combination of the following section 4(a)(1) factors: (1) The 
present or threatened destruction, modification, or curtailment of 
habitat or range; (2) overutilization for commercial, recreational, 
scientific, or educational purposes; (3) disease or predation; (4) 
inadequacy of existing regulatory mechanisms; and (5) any other natural 
or manmade factors affecting the species' existence (16 U.S.C. 
1533(a)(1), 50 CFR 424.11(c)).
    ESA implementing regulations issued jointly by the Services (50 CFR 
424.14(b)) define ``substantial information,'' in the context of 
reviewing a petition to list, delist, or reclassify a species, as the 
amount of information that would lead a reasonable person to believe 
that the measure proposed in the petition may be warranted. In 
evaluating whether substantial information is contained in a petition, 
the Secretary must consider whether the petition: (1) Clearly indicates 
the administrative measure recommended and gives the scientific and any 
common name of the species involved; (2) contains detailed narrative 
justification for the recommended measure, describing, based on 
available information, past and present numbers and distribution of the 
species involved and any threats faced by the species; (3) provides 
information regarding the status of the species over all or a 
significant portion of its range; and (4) is accompanied by the 
appropriate supporting documentation in the form of bibliographic 
references, reprints of pertinent publications, copies of reports or 
letters from authorities, and maps (50 CFR 424.14(b)(2)).
    Judicial decisions have clarified the appropriate scope and 
limitations of the Services' review of petitions at the 90-day finding 
stage, in making a determination that a petitioned action may be 
warranted. As a general matter, these decisions hold that a petition 
need not establish a ``strong likelihood'' or a ``high probability'' 
that a species is or is not either threatened or endangered to support 
a positive 90-day finding.
    To make a 90-day finding on a petition to list, delist, or 
reclassify a species, we evaluate whether the petition presents 
substantial scientific or commercial information indicating that the 
petitioned action may be warranted, including its references and the 
information readily available in our files. We do not conduct 
additional research, and we do not solicit information from parties 
outside the agency to help us in evaluating the petition. We will 
accept the petitioners' sources and characterizations of the

[[Page 25046]]

information presented if they appear to be based on accepted scientific 
principles (such as citing published and peer reviewed articles and 
studies done in accordance with valid methodologies), unless we have 
specific information in our files that indicates that the petition's 
information is incorrect, unreliable, obsolete, or otherwise irrelevant 
to the requested action. Information that is susceptible to more than 
one interpretation or that is contradicted by other available 
information will not be disregarded at the 90-day finding stage, so 
long as it is reliable and provides a basis for us to find that a 
reasonable person would conclude it supports the petitioners' 
assertions. In other words, conclusive information indicating that the 
species may meet the ESA's requirements for listing or delisting is not 
required to make a positive 90-day finding.

Background

    After receiving a petition to list Southern Resident killer whales 
as threatened or endangered under the ESA in 2001 (CBD, 2001), we 
formed a Biological Review Team (BRT) to assist with a status review 
(NMFS, 2002). After conducting the status review, we determined that 
listing Southern Resident killer whales as a threatened or endangered 
species was not warranted because Southern Resident killer whales did 
not constitute a species as defined by the ESA (67 FR 44133; July 1, 
2002). Because of the uncertainties regarding killer whale taxonomy 
(i.e., whether killer whales globally should be considered as one 
species or as multiple species and/or subspecies), we announced we 
would reconsider the taxonomy of killer whales within 4 years. 
Following the determination, the Center for Biological Diversity and 
other plaintiffs challenged our ``not warranted'' finding under the ESA 
in U.S. District Court. The U.S. District Court for the Western 
District of Washington issued an order on December 17, 2003, which set 
aside our ``not warranted'' finding and remanded the matter to us for 
redetermination of whether the Southern Resident killer whales should 
be listed under the ESA (Center for Biological Diversity v. Lohn, 296 
F. Supp. 2d. 1223 (W.D. Wash. 2003)). The court found that where there 
is ``compelling evidence that the global Orcinus orca taxon is 
inaccurate,'' the agency may not rely on ``a lack of consensus in the 
field of taxonomy regarding the precise, formal taxonomic redefinition 
of killer whales.'' As a result of the court's decision, we co-
sponsored a Cetacean Taxonomy workshop in 2004 which included a special 
session on killer whales, and reconvened a BRT to prepare an updated 
status review document for Southern Resident killer whales (NMFS, 
2004).
    The BRT agreed that the Southern Resident killer whale population 
likely belongs to an unnamed subspecies of resident killer whales in 
the North Pacific, which includes the Southern and Northern Residents, 
as well as the resident killer whales of Southeast Alaska, Prince 
William Sound, Kodiak Island, the Bering Sea and Russia (but not 
transient or offshore killer whales). The BRT concluded that the 
Southern Resident killer whale population is discrete and significant 
with respect to the North Pacific resident taxon and therefore should 
be considered a DPS. In addition, the BRT conducted a population 
viability analysis which modeled the probability of species extinction 
under a range of assumptions. Based on the findings of the status 
review and an evaluation of the factors affecting the DPS, we published 
a proposed rule to list Southern Resident killer whales as threatened 
on December 22, 2004 (69 FR 76673). After considering public comments 
on the proposed rule and other available information, we reconsidered 
the status of the Southern Resident killer whale DPS and issued a final 
rule to list the Southern Resident killer whale DPS as endangered on 
November 18, 2005 (70 FR 69903). In the final rule we described the 
listed entity as: ``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 the listing, we designated critical habitat, completed a 
recovery plan, and conducted a 5-year review for Southern Resident 
killer whales. We issued a final rule designating critical habitat for 
the Southern Resident killer whales November 29, 2006 (71 FR 69055). 
The designation includes three specific areas: (1) The Summer Core Area 
in Haro Strait and waters around the San Juan Islands; (2) Puget Sound; 
and (3) the Strait of Juan de Fuca, which comprise approximately 2,560 
square miles (6,630 square km) of Puget Sound. The designation excludes 
areas with water less than 20 feet (6.1 m) deep relative to extreme 
high water. After engaging stakeholders and providing multiple drafts 
for public comment, we announced the Final Recovery Plan for Southern 
Resident killer whales on January 24, 2008 (73 FR 4176). We have 
continued working with partners to implement actions in the recovery 
plan. In March 2011, we completed a 5-year review of the ESA status of 
Southern Resident killer whales concluding that no change was needed in 
their listing status, and that the Southern Resident killer whale DPS 
would remain listed as endangered (NMFS, 2011).
    On August 2, 2012, we received a petition submitted by the Pacific 
Legal Foundation on behalf of the Center for Environmental Science 
Accuracy and Reliability, Empresas Del Bosque, and Coburn Ranch to 
delist the endangered Southern Resident killer whale DPS under the ESA. 
The petitioners contend that the killer whale DPS does not constitute a 
listable unit under the ESA because NMFS is without authority to list a 
DPS of a subspecies. The petitioners also contend that there is no 
scientific basis for the designation of the unnamed North Pacific 
Resident subspecies of which the Southern Resident killer whales are a 
purported DPS. The petition also presents new information regarding 
genetic samples and data analysis pertinent to the question of 
discreteness and the DPS determination. On November 27, 2012, we made a 
90-day finding accepting the petition, based on the additional genetic 
samples and publication of new peer reviewed scientific journal 
articles regarding the taxonomy of killer whales, and requested 
information to inform a status review (77 FR 70733). That status review 
is currently underway.

Petition Finding

    The petition addressed by this notice describes Lolita, a female 
killer whale captured from the Southern Resident population in 1970, 
who currently resides at the Miami Seaquarium in Miami, Florida, as the 
only remaining member of the Southern Residents alive in captivity. The 
petitioners present biological information about Lolita's genetic 
heritage and contend that Lolita is a member of the endangered Southern 
Resident DPS and should be included under the ESA listing. In addition, 
they provide a legal argument regarding the applicability of the ESA to 
captive members of endangered species. The petition also includes 
information about how each of the five section 4(a)(1) factors applies 
with respect to Lolita. Lastly, the petitioners contend that including 
Lolita in the ESA listing will contribute to conservation of the wild 
Southern Resident killer whale population.
    As described above, the standard for determination of whether a 
petition includes substantial information is whether the amount of 
information

[[Page 25047]]

presented provides a basis for us to find that it would lead a 
reasonable person to believe that the measure proposed in the petition 
may be warranted. We find the biological information regarding Lolita's 
genetic heritage and consideration of captive individuals under the ESA 
meets this standard, based on the information presented and referenced 
in the petition, as well as all other information readily available in 
our files.

Information Solicited

    We are soliciting information from the public, governmental 
agencies, tribes, the scientific community, industry, environmental 
entities, and any other interested parties concerning Lolita's genetic 
heritage and status. We will consider all of the available information 
in our determination of whether including Lolita in the Southern 
Resident killer whale ESA listing is warranted. If we propose to 
include Lolita in the DPS, we would seek public comment before making a 
final decision. We will coordinate our review of the petition to 
include Lolita in the Southern Resident DPS with our ongoing review of 
the concurrent petition to delist the DPS. If we propose to delist the 
Southern Resident DPS, we would seek public comment before making a 
final decision.

List of Subjects in 50 CFR Part 224

    Administrative practice and procedure, Endangered and threatened 
species, Reporting and recordkeeping requirements.

References Cited

    The complete citations for the references used in this document can 
be obtained by contacting NMFS (See ADDRESSES and FOR FURTHER 
INFORMATION CONTACT) or on our Web page at: http://www.nwr.noaa.gov/protected_species/marine_mammals/cetaceans_whales_dolphins_porpoise/toothed_whales/killer_whales/esa_status_of_puget_sound_killer_whales.html

Authority

    The authority for this action is the Endangered Species Act of 
1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: April 24, 2013.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and 
duties of the Deputy Assistant Administrator for Regulatory Programs, 
National Marine Fisheries Service.
[FR Doc. 2013-10024 Filed 4-24-13; 4:15 pm]
BILLING CODE 3510-22-P