[Federal Register Volume 79, Number 17 (Monday, January 27, 2014)]
[Proposed Rules]
[Pages 4313-4319]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-01506]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 224

[Docket No. 130321272-4020-01; 0648-XC589]


Listing Endangered or Threatened Species: Proposed Amendment to 
the Endangered Species Act Listing of the Southern Resident Killer 
Whale Distinct Population Segment

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

ACTION: Proposed rule; 12-month finding; request for comments.

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SUMMARY: In response to a petition submitted by the People for the 
Ethical Treatment of Animals Foundation to include the killer whale 
``Lolita'' as a protected member of the endangered Southern Resident 
killer whale Distinct Population Segment (DPS), we, the National Marine 
Fisheries Service (NMFS), have completed a status review and propose to 
amend the regulatory language of the Endangered Species Act (ESA) 
listing of the DPS by removing the exclusion for captive members of the 
population. The current regulatory language excluded Lolita, the sole 
member of the Southern Resident killer whale DPS held in captivity, 
from the endangered listing. With removal of the exclusion, Lolita, a 
female killer whale captured from the Southern Resident population in 
1970 who resides at the Miami Seaquarium in Miami, Florida, would be 
included in the Southern Resident killer whale DPS. The Southern 
Resident killer whale DPS was listed as endangered under the ESA in 
2005. We accepted the petition to include Lolita in the Southern 
Resident killer whale DPS on April 29, 2013, initiating a public 
comment period and a status review. Based on our review of the 
petition, public comments, and the best available scientific 
information, we find that amending the regulatory language to remove 
the exclusion for captive whales from the Southern Resident Killer 
whale DPS is warranted. We are soliciting scientific and commercial 
information pertaining to the proposed rule.

DATES: Scientific and commercial information pertinent to the proposed 
action and comments must be received by March 28, 2014.

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:[sol][sol]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 Lynne Barre, Branch Chief.
    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

[[Page 4314]]

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[sol]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. The 
petition, 90-day finding, comments on the 90-day finding, and 12-month 
finding are available at regulations.gov. Go to 
http:[sol][sol]www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2013-
0056.

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) and on our Web page at: 
http:[sol][sol]www.westcoast.fisheries.noaa.gov/protected_species/
marine_mammals/killer_whale/lolita_petition.html.
    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)). The 
Secretary of Commerce has delegated this duty to NMFS. If we find that 
the petition presents substantial information indicating that the 
petitioned action may be warranted, we must 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. On April 29, 2013 (78 FR 25044), we made a finding that 
there was sufficient information indicating that the petitioned action 
may be warranted and requested comments to inform a status review.
    After accepting a petition and initiating a status review, within 
12 months of receipt of the petition we must 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. In this notice, we make a finding that the petitioned 
action to include the killer whale known as Lolita in the ESA listing 
of the Southern Resident killer whale DPS is warranted and propose to 
amend the regulatory language describing the DPS by removing the 
current exclusion for captive whales.
    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-
U.S. Fish and Wildlife (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: (1) Discreteness 
of the population segment in relation to the remainder of the species/
taxon, and, if discrete; (2) the significance of the population segment 
to the species/taxon.
    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)). Thus, we interpret an ``endangered species'' to be one that is 
presently in danger of extinction. A ``threatened species,'' on the 
other hand, is not presently in danger of extinction, but is likely to 
become so in the foreseeable future (that is, at a later time). In 
other words, the primary statutory difference between a threatened and 
endangered species is the timing of when a species may be in danger of 
extinction, either presently (endangered) or in the foreseeable future 
(threatened). 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: The 
present or threatened destruction, modification, or curtailment of 
habitat or range; overutilization for commercial, recreational, 
scientific, or educational purposes; disease or predation; inadequacy 
of existing regulatory mechanisms; and any other natural or manmade 
factors affecting the species' existence (16 U.S.C. 1533(a)(1), 50 CFR 
424.11(c)).
    We make listing determinations based on the best available 
scientific and commercial data available after conducting a review of 
the status of the species and after taking into account efforts being 
made by any State or foreign nation or political subdivision thereof to 
protect the species.

Background

    Three distinct forms or ecotypes of killer whales, termed 
residents, transients, and offshores, are recognized in the 
northeastern Pacific Ocean. Resident killer whales in U.S. waters are 
distributed from Alaska to California, with four distinct populations: 
Southern, Northern, Southern Alaska, and Western Alaska (Krahn et al., 
2002; 2004). Resident killer whales are fish eaters and live in stable 
matrilineal pods. The West Coast transient killer whales have a 
different social structure, are found in smaller groups, and eat marine 
mammals. Offshore killer whales are found in large groups, and their 
diet is presumed to consist primarily of fish, including sharks. While 
the ranges of the different ecotypes of whales overlap in the 
northeastern Pacific Ocean, available genetic data indicate that there 
is a high degree of reproductive isolation among residents, transients, 
and offshores (Krahn et al., 2004; NMFS, 2013).
    The Southern Resident killer whale population consists of three 
pods, identified as J, K, and L pods, that reside for part of the year 
in the inland waterways of Washington State and British Columbia 
(Strait of Georgia, Strait of Juan de Fuca, and Puget Sound), 
principally during the late spring, summer, and fall (NMFS, 2008). Pods 
visit coastal sites off Washington and Vancouver Island, and travel as 
far south as central California and as far north as Southeast Alaska 
(Ford et al., 2000; NMFS, 2008; Department of Fisheries and Oceans, 
unpublished data).
    In 2001 we received a petition to list the Southern Resident killer 
whale population as threatened or endangered under the ESA (CBD, 2001) 
and we formed a Biological Review Team (BRT)

[[Page 4315]]

to assist with a status review (NMFS, 2002). After conducting the 
status review, we determined that listing the Southern Resident killer 
whale population as a threatened or endangered species was not 
warranted because the science at that time did not support identifying 
the Southern Resident killer whale population as a DPS 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 whale population 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 order, 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 
transients or offshores). The BRT concluded that the Southern Resident 
killer whale population is discrete from other populations within the 
North Pacific Resident taxon 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 the Southern Resident killer whale DPS 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). The regulatory language in the listing 
limited the DPS to 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 the Southern Resident 
killer whale DPS. We issued a final rule designating critical habitat 
for the Southern Resident killer whale DPS on November 29, 2006 (71 FR 
69055). After engaging stakeholders and providing multiple drafts for 
public comment, we announced the Final Recovery Plan for the Southern 
Resident killer whale DPS 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 
the Southern Resident killer whale DPS concluding that no change was 
needed in its listing status, and that the Southern Resident killer 
whale DPS would remain listed as endangered (NMFS, 2011). The 5-year 
review also noted that there was no relevant new information for this 
species regarding the application of the DPS policy.
    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. 
We made a 90-day finding accepting the petition and soliciting 
information to inform a status review (77 FR 70733; November 27, 2012). 
Based on a review of the scientific information (NWFSC, 2013) and our 
full status review, we issued a 12-month finding on August 5, 2013, 
that the petitioned action was not warranted and the Southern Resident 
killer whale DPS remains listed as endangered (78 FR 47277).

Lolita Petition

    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. The petition 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 
information about Lolita's origin and contend that Lolita is a member 
of the endangered Southern Resident DPS and should be included within 
the ESA listing. In addition, they provide a legal argument that ``the 
ESA applies to captive members of listed species'' and assert that 
``NMFS has a non-discretionary duty to include Lolita in the listing of 
the Southern Resident killer whales under the ESA.'' 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.
    On April 29, 2013, we found that the information contained in the 
petition, viewed in the context of information readily available in our 
files, presented substantial scientific information that would lead a 
reasonable person to believe that the petitioned action may be 
warranted (78 FR 25044). We noted that the information on Lolita's 
genetic heritage and consideration of captive individuals under the ESA 
provided a basis for us to accept the petition. The petition included 
an assessment of how listing Lolita would help conserve the wild 
Southern Resident population and also a review of the 4(a)(1) factors 
described earlier and considered in listing determinations. Our 90-day 
finding accepting the petition, however, was based on the biological 
information regarding Lolita's genetic heritage and consideration of 
the applicability of the ESA to captive members of endangered species. 
Our review of Lolita's status with respect to the Southern Resident 
killer whale DPS similarly focuses on these two aspects and does not 
include a review of the 4(a)(1) factors for Lolita or the wild 
population. Our status review considers the best available information, 
including information received through the public comment period, a 
review of scientific information conducted by our Northwest Fisheries 
Science Center

[[Page 4316]]

(Center), and information in the petition.
    Upon publishing our 90-day finding accepting the petition, we 
initiated a status review and solicited information from the public to 
help us gather any additional information to inform our review of 
Lolita's relationship to the Southern Resident killer whale DPS. During 
the public comment period, which closed on June 28, 2013, we received 
1,837 comments from citizens, researchers, non-profit organizations, 
government agencies, and the public display industry, from the United 
States and around the world. While we solicited information concerning 
Lolita's genetic heritage and status, the vast majority of individual 
commenters simply stated their support for the petition to include 
Lolita as a member of the Southern Resident killer whale DPS. Along 
with support for the petition or as a stand-alone comment, many 
commenters suggested that Lolita be freed from her captivity and 
returned to her native waters of the Pacific Northwest. Commenters also 
expressed concern over Lolita's current care at the Miami Seaquarium, 
which is regulated by the United States Department of Agriculture's 
Animal and Plant Health Inspection Service under the Animal Welfare Act 
(AWA) and beyond the scope of our determination regarding the petition. 
Because the AWA captive care requirements are not under NMFS 
jurisdiction and are beyond the scope of our determination, those 
comments are not addressed in this proposed rule. Five comments, all 
submitted by groups associated with the public display industry, 
provided substantive comments opposing the petition. Eight comments 
from conservation organizations, individuals, or government agencies 
were substantive in support of the petition, many citing recent Federal 
Register notices from the USFWS that provide information on the 
consideration of captive individuals under the ESA with respect to the 
listing status of captive chimpanzees (78 FR 35201; June 12, 2013) and 
the status of captive individuals from three listed antelope species 
(78 FR 33790; June 5, 2013).
    The recent review of biological information and our DPS 
determination conducted by the Center in response to the petition to 
delist the Southern Resident killer whale DPS included a review of 
information specific to Lolita's genetic heritage (NMFS, 2013). This 
review and update of our determinations about killer whale taxonomy and 
identification of a DPS informs our 12-month finding about the 
petitioned action to include Lolita in the Southern Resident killer 
whale DPS.

Determination of Taxon and DPS

    Based on the best information available, we previously concluded, 
with advice from the 2004 BRT (Krahn et al., 2004), that the Southern 
Resident killer whale population (J, K, and L pods) met the two 
criteria of the DPS policy (discreteness and significance) and 
constituted a DPS of the North Pacific Resident subspecies. A detailed 
analysis of (1) the reference taxon for consideration under the DPS 
policy; (2) the discreteness of the Southern Resident population from 
other populations within that taxon; and (3) the significance of the 
Southern Resident population to that taxon was included in our 12-month 
determination that the petition to delist was not warranted (78 FR 
47277; August 5, 2013) and is summarized below. Based on our recent 
status review and in response to a petition to delist the Southern 
Resident killer whale DPS, we concluded that the best available 
scientific information indicates that, similar to our 2005 rulemaking 
when we listed the Southern Resident DPS, the North Pacific Resident 
subspecies is the appropriate reference taxon for considering whether 
the Southern Resident killer whale population is discrete and 
significant. In our 2005 rulemaking we concluded that there was strong 
evidence that the Southern Resident killer whale population is discrete 
from other North Pacific Resident killer whale populations as defined 
by the 1996 DPS policy. The new information subsequent to 2004, such as 
recent genetic studies, is consistent with and generally strengthens 
the conclusion that the Southern Resident killer whale population is a 
discrete population within the North Pacific Resident taxon. As in 
2004, all the available information clearly indicates that the Southern 
Resident population is discrete from other populations in the North 
Pacific resident subspecies. In addition we concluded that the new 
information on genetics and behavioral and cultural diversity available 
since 2004 was consistent with or strengthens the 2004 BRT's conclusion 
that the Southern Resident killer whale population meets the 
significance criterion of the DPS policy. In summary, in our 12-month 
finding that delisting was not warranted we concluded that members of 
the Southern Resident killer whale population are discrete from other 
populations within the North Pacific Resident killer whale taxon and 
significant with respect to the North Pacific Resident killer whale 
taxon and therefore comprise a valid DPS which remains listed as 
endangered (78 FR 47277; August 5, 2013).

12-Month Finding and Proposed Change to Listing

    The petition maintains that Lolita is a member of the Southern 
Resident killer whale population and states that she must, therefore, 
be included in the listed DPS. As summarized above, our consideration 
of the petitioned action focuses on biological information regarding 
Lolita's genetic heritage and the application of the ESA to captive 
members of a listed species or DPS. The petitioners contend that Lolita 
was taken from L pod during captures on August 8, 1970, in Penn Cove, 
approximately 50 miles (80 km) north of Seattle, Washington, that her 
mother is believed to be L25, an adult female Southern Resident killer 
whale who remains in the wild, and that Lolita makes the unique calls 
of the L25 subpod. In our recent status review update (NMFS, 2013), we 
cite a new genetic analysis, available since the original 2005 listing, 
which indicates that Lolita has a genotype consistent with a Southern 
Resident origin (Hoelzel et al. 2007; Hoelzel, personal communication) 
and note that Lolita's acoustic calls are typical of L pod (Ford, 1987; 
Candice Emmons, personal communication). As described above, in support 
of the DPS determination for Southern Resident killer whales, recent 
genetic studies all indicate that the Southern Resident population is 
significantly differentiated and that there is a high degree of 
reproductive isolation from other resident populations that comprise 
the North Pacific Resident subspecies. Differences in acoustic behavior 
between populations of resident killer whales also support the 
conclusion that Southern Resident killer whales are discrete and 
significant and, therefore, qualify as a DPS. Lolita shares both 
genetic and acoustic characteristics with the members of the Southern 
Resident killer whale DPS found in the wild. Based upon this best 
available science we confirm that Lolita is a member of the Southern 
Resident killer whale population and as such she should be included as 
a member of the Southern Resident Killer Whale DPS.
    In addition to the biological information about Lolita's origin and 
acoustic behavior, the petitioners also provide legal arguments 
regarding the application of the ESA to captive members of a listed 
species. While the ESA authorizes the listing, delisting, or 
reclassification of a species, subspecies,

[[Page 4317]]

or DPS of a vertebrate species, it does not authorize the exclusion of 
the members of a subset or portion of a listed species, subspecies, or 
DPS from a listing decision. In 2001, the U.S. District Court in 
Eugene, Oregon (Alsea Valley Alliance v.Evans, 161 F. Supp.2d 1154 (D. 
Or. 2001)) (Alsea), ruled that once we had identified and listed a DPS 
(for Oregon Coast coho), the ESA did not allow listing only a subset 
(that which excluded 10 captive hatchery stocks) of that DPS. NMFS 
agrees with the reasoning of this case that it cannot exclude Lolita 
from the listing having found her to be part of the species.
    Some commenters contend that Lolita should not be included in the 
Southern Resident killer whale DPS, similarly to other wild whales that 
are members of the North Pacific Resident subspecies (i.e. Northern 
Resident and Alaska Resident killer whale populations). These 
commenters fail to recognize the previously discussed best available 
science defining the genetic and acoustic characteristics that Lolita 
shares with the Southern Resident killer whale DPS. We find these 
shared characteristics to be compelling lines of evidence that render 
Lolita and other members of the Southern Resident killer whale DPS 
discrete from and significant to the North Pacific Resident subspecies 
(NMFS, 2013).
    Other commenters note that there are other characteristics, such as 
behavior and habitat use, that Lolita does not share with the other 
wild members of the Southern Resident killer whales and suggest that 
NMFS could exercise its discretion to identify a separate captive only 
DPS. However, legislative history surrounding the 1978 Amendments to 
the ESA that gave the Services the authority to designate DPSs 
indicates that Congress intended designation of DPSs to be used for the 
designation of wild populations, not separation of captive held 
specimens from wild members of the same taxonomic species (see 
Endangered Species Act Oversight: Hearing Before Senate Subcommittee on 
Resource Protection, Senate Committee on Environment and Public Works, 
95th Cong. 50 (July 7, 1977). Additionally, these arguments fail to 
adhere to Congress' directive to the Services that the authority to 
designate DPSs be exercised ``sparingly'' (Senate Report 151, 96th 
Congress, 1st Session). Finally, NMFS decision-making relevant to 
identifying and designating DPSs is discretionary and not subject to 
judicial review (Safari Club International v. Jewell, 2013 WL 4041541 
(DDC 2013)).
    The ESA does not support the exclusion of captive members from a 
listing based solely on their status as captive. On its face the ESA 
does not treat captives differently. Rather, specific language in 
Section 9 and Section 10 of the ESA presumes their inclusion in the 
listed entity, and captives are subject to certain exemptions to 
Section 9. Section 9(a)(1)(A)-(G) of the ESA applies to endangered 
species regardless of their captive status. However, Section 9(b) 
provides certain exemptions from the 9(a)(1)(A) and (a)(1)(G) 
prohibitions for listed animals held in captivity or in a controlled 
environment as of the date of the species' listing (or enactment of the 
ESA), provided the holding in captivity and any subsequent use is not 
in the course of commercial activity. Additionally, Section 9(b)(2) 
refers to captive raptors and identifies that the prohibitions in 
9(a)(1) shall not apply to raptors legally held in captivity. Section 
10(a)(1)(A) of the ESA allows issuance of permits to ``enhance the 
propagation or survival'' of the species. This demonstrates that 
Congress recognized the value of captive holding and propagation of 
listed species held in captivity but intended that such specimens would 
be protected under the ESA, with these activities generally regulated 
by permit.
    We have specifically identified captive members as part of the 
listed unit during listing actions, such as for endangered smalltooth 
sawfish (68 FR 15674; April 1, 2003), and endangered Atlantic sturgeon 
(77 FR 5914; February 6, 2012), and in the proposed listing of five 
species of foreign sturgeons (78 FR 65249; October 31, 2013). Further, 
based upon the purposes of the ESA and its legislative history, the 
USFWS has recently concluded that the ESA does not allow captive 
animals to be assigned different legal status from their wild 
counterparts on the basis of their captive status. Subsequent to the 
submission of the petition regarding Lolita, USFWS published a proposed 
rule to amend the listing status of captive chimpanzees, so that all 
chimpanzees (wild and captive) would be listed as endangered (78 FR 
35201; June 12, 2013). USFWS also published a 12-month finding that 
delisting the captive members of three listed antelope species was not 
warranted (78 FR 33790; June 5, 2013).
    Based on the preceding discussion, the information submitted during 
the public comment period, and best available science and information, 
we find that Lolita is a member of the Southern Resident killer whale 
population and should be included as a member of the listed Southern 
Resident killer whale DPS. Accordingly, we propose to remove the 
exclusion for captive whales in the regulatory language describing the 
Southern Resident killer whale DPS. Our finding is consistent with the 
recent USFWS conclusions regarding the status of captive animals under 
the ESA and also with the Marine Mammal Commission recommendation to 
adopt a policy consistent with the USFWS in the proposed chimpanzee 
listing rule, and treat all biological members of the Southern Resident 
killer whales as part of the DPS, regardless of whether those 
individuals are in the wild or in captivity (Marine Mammal Commission 
letter, August 13, 2013).
    As part of the 2005 ESA listing of the Southern Resident killer 
whale DPS (70 FR 69903; November 18, 2005), we conducted an analysis of 
the five ESA section 4(a)(1) factors and concluded that the DPS was in 
danger of extinction and listed it as endangered. In March 2011, we 
completed a 5-year review of the ESA status of the Southern Resident 
killer whale DPS, concluding that no change was needed in its listing 
status and that the Southern Resident killer whale DPS would remain 
listed as endangered (NMFS, 2011). The petition includes an analysis of 
the five ESA section 4(a)(1) factors with respect to Lolita, although 
petitioners note that the analysis is not required to justify Lolita's 
inclusion in the DPS and that Lolita's genetic heritage is sufficient 
to support her inclusion in the listing. We agree that biological 
information regarding Lolita's origin and consideration of the 
applicability of the ESA to captive members of endangered species 
provide a sufficient basis for our determination and, therefore, do not 
include a review of the 4(a)(1) factors for Lolita or the wild 
population.
    While progress toward recovery has been achieved since the listing, 
as described in the 5-year review, the status of the DPS remains as 
endangered. Since the 5-year review was completed, additional actions 
have been taken to address threats, such as regulations to protect 
killer whales from vessel impacts (76 FR 20870; April 14, 2011), 
completion of a scientific review of the effects of salmon fisheries on 
Southern Resident killer whales (Hilborn, 2012), and ongoing technical 
working groups with the Environmental Protection Agency to assess 
contaminant exposure. However, the population growth outlined in the 
biological recovery criteria and some of the threats criteria have not 
been met. We have no new information that would change the 
recommendation in our 5-year review that the Southern Resident killer 
whale DPS remain classified as endangered (NMFS, 2011). Our

[[Page 4318]]

proposed rule would amend the language describing the Southern Resident 
killer whale DPS to remove the exception for captive whales, and, if 
the proposal is finalized, Lolita would then be included under the 
endangered classification.

Effects of Amendment to Listing

    Conservation measures provided for species listed as endangered or 
threatened under the ESA include concurrent designation of critical 
habitat if prudent and determinable (16 U.S.C. 1533(a)(3)(A)); recovery 
plans and actions (16 U.S.C. 1536(f)); Federal agency requirements to 
consult with NMFS and to ensure that its actions do not jeopardize the 
species or result in adverse modification or destruction of critical 
habitat should it be designated (16 U.S.C. 1536); and prohibitions on 
taking (16 U.S.C. 1538).
    Following the listing, we designated critical habitat and completed 
a recovery plan for the Southern Resident killer whale DPS. We issued a 
final rule designating critical habitat for the Southern Resident 
killer whale DPS 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 together comprise approximately 2,560 
square miles (6,630 square km). The designation excludes areas with 
water less than 20 feet (6.1 m) deep relative to extreme high water. 
The designated critical habitat will not be affected by removing the 
exclusion of captive whales from the regulatory language describing the 
Southern Resident killer whale DPS. As the USFWS identified in its 
recent chimpanzee rule, there is an ``anomaly of identifying the 
physical and biological features that would be essential to the 
conservation of a species consisting entirely of captive animals in an 
artificial environment'' (78 FR 35201; June 12, 2013). This observation 
also holds for a listed entity with only one captive member. In the 
event that this proposed action is finalized, we do not intend to 
modify the critical habitat designation to include consideration of 
Lolita and her captive environment.
    After engaging stakeholders and providing multiple drafts for 
public comment, we announced the Final Recovery Plan for the Southern 
Resident killer whale DPS on January 24, 2008 (73 FR 4176). Lolita's 
capture and captivity is mentioned in the recovery plan; however, the 
recovery actions in the plan are focused on addressing the threats to 
and the recovery of the wild population. If this proposal is finalized, 
as the recovery plan is updated in the future, we will consider 
including an update that Lolita is included in the DPS.
    Sections 7(a)(2) of the ESA requires Federal agencies to ensure 
that activities they authorize, fund, or carry out are not likely to 
jeopardize the continued existence of a listed species, or to adversely 
modify critical habitat. In the USFWS proposed rule for chimpanzees (78 
FR 35201; June 12, 2013), USFWS identifies that ``the section 7 
consultation process is not well suited to analysis of adverse impacts 
posed to a purely captive-held group of specimens given that such 
specimens are maintained under controlled, artificial conditions.'' 
This observation also holds for a listed entity with only one captive 
member. Previous guidance on examples of Federal actions that have the 
potential to impact Southern Resident killer whales was focused on 
activities that may affect wild whales. If this proposal is finalized, 
additional considerations of actions that have the potential to affect 
Southern Resident killer whales, including Lolita, will be considered 
along with prohibitions on activities that affect the Southern Resident 
killer whale DPS. Some of these considerations are discussed below.

Take Prohibitions and Identification of Those Activities That Would 
Constitute a Violation of Section 9 of the ESA

    On July 1, 1994, NMFS and USFWS published a policy (59 FR 34272) 
that requires us to identify, to the maximum extent practicable at the 
time a species is listed, those activities that would or would not 
constitute a violation of section 9 of the ESA. The ESA does not 
prohibit possession of animals lawfully taken, so a permit is required 
only if the person possessing the animal intends to engage in an 
otherwise prohibited act. Prohibited activities for ESA-listed 
endangered species include, but are not limited to: (1) ``Take'' of 
such species, as defined in the ESA (including to harass, harm, pursue, 
hunt, shoot, wound, kill, trap, capture, or collect, or attempt to 
engage in any such conduct); (2) delivering, receiving, carrying, 
transporting, or shipping in interstate or foreign commerce, in the 
course of a commercial activity, any such species; or (3) selling or 
offering for sale in interstate or foreign commerce any such species.
    Activities that we believe may result in violation of section 9 
prohibitions against ``take'' under section 9, depending on the 
circumstances, include, but are not limited to, releasing a captive 
animal into the wild. For example, in the recent proposed listing of 
five species of sturgeon, we noted that release of a captive animal 
into the wild has the potential to injure or kill not only the 
particular animal, but also the wild populations of that same species 
through introduction of diseases or inappropriate genetic mixing (78 FR 
65249; October 31, 2013). Additionally, we consider the following 
activities, depending on the circumstances, as likely not resulting in 
a violation of ESA section 9 (and therefore do not require a section 10 
permit): (1) Continued possession of captives, and (2) continued 
provision of Animal Welfare Act-compliant care and maintenance of 
captives, including handling and manipulation as necessary for care and 
maintenance, as long as such practices or procedures are not likely to 
result in injury. We are seeking public comment on these issues as part 
of this proposed rulemaking.

Peer Review

    On July 1, 1994, the NMFS and USFWS published a series of policies 
regarding listings under the ESA, including a policy for peer review of 
scientific data (59 FR 34270). The intent of the peer review policy is 
to ensure that listings are based on the best scientific and commercial 
data available. Prior to a final listing, NMFS will solicit the expert 
opinions of three qualified specialists selected from the academic and 
scientific community, Federal and state agencies, and the private 
sector on listing recommendations to ensure the best biological and 
commercial information is being used in the decision-making process, as 
well as to ensure that reviews by recognized experts are incorporated 
into the review process of rulemakings developed in accordance with the 
requirements of the ESA.

Public Comments Solicited on Listing Change

    To ensure that the final action resulting from this proposal will 
be as accurate and effective as possible, we solicit comments from the 
public, governmental agencies, tribes, the scientific community, 
industry, environmental entities, and any other interested parties 
concerning the proposal to amend the regulatory language describing the 
listing of the Southern Resident killer whale DPS by removing the 
exception for captive whales. We will consider all of the information 
provided before making a final decision. You may submit your comments 
and materials concerning this proposal by any one of several methods 
(see ADDRESSES). We will review all

[[Page 4319]]

public comments and any additional information regarding the status of 
these subspecies and will complete a final determination within 12 
months of publication of this proposed rule, as required under the ESA. 
Final promulgation of the regulation(s) will consider the comments and 
any additional information we receive, and such communications may lead 
to a final regulation that differs from this proposal.

Public Hearings

    If requested by the public within 45 days of publication of this 
proposed rule, a hearing will be held regarding this proposal to amend 
the listing of the Southern Resident killer whale DPS by removing the 
exclusion for captive whales. If a hearing is scheduled, details 
regarding location(s), date(s), and time(s) will be published in a 
forthcoming Federal Register notice.

Classification

National Environmental Policy Act (NEPA)

    The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the 
information that may be considered when assessing species for listing. 
Based on this limitation of criteria for a listing decision and the 
opinion in Pacific Legal Foundation v. Andrus, 657 F. 2d 829 (6th Cir. 
1981), we have concluded that NEPA does not apply to ESA listing 
actions. (See NOAA Administrative Order 216-6.)

Executive Order 12866, Regulatory Flexibility Act, and Paperwork 
Reduction Act

    As noted in the Conference Report on the 1982 amendments to the 
ESA, economic impacts cannot be considered when assessing the status of 
a species. Therefore, the economic analysis requirements of the 
Regulatory Flexibility Act are not applicable to the listing process. 
In addition, this proposed rule is exempt from review under Executive 
Order 12866. This proposed rule does not contain a collection-of-
information requirement for the purposes of the Paperwork Reduction 
Act.

Executive Order 13122, Federalism

    In accordance with E.O. 13132, we determined that this proposed 
rule does not have significant Federalism effects and that a Federalism 
assessment is not required. In keeping with the intent of the 
Administration and Congress to provide continuing and meaningful 
dialogue on issues of mutual state and Federal interest, this proposed 
rule will be shared with the relevant state agencies in each state in 
which the species is believed to occur, and those states will be 
invited to comment on this proposal. As we proceed, we intend to 
continue engaging in informal and formal contacts with the states, and 
other affected local or regional entities, giving careful consideration 
to all written and oral comments received.

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.westcoast.fisheries.noaa.gov/protected_species/marine_mammals/killer_whale/lolita_petition.html

List of Subjects in 50 CFR Part 224

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

    Dated: January 17, 2014.
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.

    For the reasons set out in the preamble, 50 CFR part 224 is 
proposed to be amended as follows:

PART 224--ENDANGERED MARINE AND ANADROMOUS SPECIES

0
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.


Sec.  224.101  [Amended]

0
2. In paragraph (b) of Sec.  224.101, remove ``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; Ladoga ringed seal (Phoca 
(=Pusa)hispida ladogensis)''; and add in its place ``Killer whale 
(Orcinus orca)'' to read as ``Killer whale (Orcinus orca), Southern 
Resident distinct population segment, which consists of whales from J, 
K and L pods, wherever they are found;''

[FR Doc. 2014-01506 Filed 1-24-14; 8:45 am]
BILLING CODE 3510-22-P