[Federal Register Volume 80, Number 27 (Tuesday, February 10, 2015)]
[Rules and Regulations]
[Pages 7380-7390]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-02604]


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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 224

[Docket No. 130321272-5109-03]
RIN 0648-XC589


Listing Endangered or Threatened Species: 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: Final rule.

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

SUMMARY: On January 25, 2013, we, NMFS, received a petition submitted 
by the People for the Ethical Treatment of Animals Foundation to remove 
the exclusion of captive animals from the endangered species listing of 
Southern Resident killer whale DPS, as well as, recognize the captive 
killer whale (Orcinus orca) ``Lolita'' as a protected member of the 
endangered Southern Resident killer whale Distinct Population Segment 
(DPS). We completed a status review and published a proposed rule, and 
we are now amending the regulatory language of the Endangered Species 
Act (ESA) listing of the DPS by removing the exclusion for captive 
members of the population. We have further determined that Lolita, a 
female killer whale captured from the Southern Resident killer whale 
population in 1970 who resides at the Miami Seaquarium in Miami, 
Florida, is not excluded from the Southern Resident killer whale DPS 
due to her captive status.
    We proposed to amend the regulatory language of the ESA listing to 
remove the exclusion for captive whales from the Southern Resident 
killer whale DPS on January 27, 2014. Additionally, we solicited 
scientific and commercial information pertaining to the proposed rule 
and also conducted a peer review of the status review information on 
Lolita that informed the proposed rule. We have determined that captive 
members of the Southern Resident killer whale population should be 
included in the listed Southern Resident killer whale DPS. This rule 
amends the regulatory language of the listing to remove the exclusion 
for captive members of the DPS.

DATES: This final rule becomes effective on May 11, 2015.

ADDRESSES: Information supporting this final rule can be found on our 
Web site at: http://www.westcoast.fisheries.noaa.gov/protected_species/marine_mammals/killer_whale/lolita_petition.html.
    Or in our office at:
     Protected Resources Division, NMFS, Northwest Region, 
Protected Resources Division, 7600 Sand Point Way NE., Attention Lynne 
Barre, Branch Chief.

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 remove the exclusion of captive whales 
from the SRKW DPS ESA listing and to include the killer whale 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, 
reclassify, or delist a species, 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 
we made a finding (78 FR 25044) 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. On January 27, 2014 we made a finding (79 FR 4313) that 
the petitioned action to remove the exclusion of captive killer whales 
from the ESA listing of the Southern Resident killer whale DPS and to 
include captive killer whales in the ESA listing of the Southern 
Resident killer whale DPS was warranted and proposed to amend the 
regulatory language describing the DPS by removing the current 
exclusion for captive whales. Within 12 months of issuing a proposed 
rule on a listing determination, we must publish a final regulation to 
implement the determination or publish a notice extending the 12-month 
period. This notice is a final rule to implement our

[[Page 7381]]

determination that the petitioned action is warranted and to amend the 
language describing the endangered listing of the Southern Resident 
killer whale DPS by removing the 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 
species and an 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) 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 that 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

[[Page 7382]]

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 remove the exclusion of captive killer 
whales from the ESA listing of the Southern Resident Killer Whale DPS 
and to include the killer whale known as Lolita in the ESA listing of 
the Southern Resident killer whales. The petition described 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 presented information about Lolita's origin 
and contended that Lolita is a member of the endangered Southern 
Resident DPS and should be included within the ESA listing. In 
addition, they provided a legal argument that ``the ESA applies to 
captive members of listed species'' and asserted 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 included 
information about how each of the five section 4(a)(1) factors applies 
with respect to Lolita. Lastly, the petitioners contended 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 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 focused on these two aspects and did not include a 
review of the Section 4(a)(1) factors for Lolita or the wild 
population. Our status review considered the best available information 
including information received through the public comment period, a 
review of scientific information conducted by our Northwest Fisheries 
Science Center, including published peer-reviewed journal articles and 
unpublished scientific reports, and information in the petition.
    Upon publishing our 90-day finding accepting the petition, we 
initiated a status review update 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. Based on the information informing the 90-day finding, the status 
review update, and the public comments on the 90-day finding, we 
published a proposed rule on January 27, 2014 (79 FR 4313), proposing 
to amend the regulatory language of the ESA listing of the DPS by 
removing the exclusion for captive members of the population and 
requesting comments.
    During the public comment period for the proposed rule, which 
closed on March 28, 2014, we received over 17,000 comments from 
citizens, researchers, non-profit organizations, and the public display 
industry; comments came from the United States and around the world. 
While we solicited information concerning the proposal to amend the 
regulatory language describing the listing of the Southern Resident 
killer whale DPS by removing the exclusion of captive whales and 
Lolita's genetic heritage and status, the vast majority of individual 
commenters simply stated their support for the proposal to include 
Lolita as a member of the Southern Resident killer whale DPS. Along 
with support for the proposed rule 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 
under the purview of the U.S. Department of Agriculture's Animal and 
Plant Health Inspection Service (APHIS) under the Animal Welfare Act 
(AWA). The AWA captive care requirements are not under NMFS 
jurisdiction and are beyond the scope of our response to the petition; 
thus, comments pertaining to AWA compliance are not addressed in this 
final rule.
    In addition to a very large number of brief comments in support of 
the proposed rule, we received over 60 detailed comments raising 
substantive issues. The majority of these comments provided substantive 
support for recognition of Lolita as a member of the listed DPS. 
Several substantive comments, primarily submitted by groups or 
individuals associated with the public display industry, opposed the 
proposed rule, with several also opposing any relocation of Lolita.
    In addition to public review, we solicited peer review of 
information about Lolita's heritage supporting our conclusion in the 
proposed rule that Lolita originated from the Southern Resident killer 
whale population. 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 the 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. Pursuant to our 1994 policy 
on peer review, the Data Quality Act, and the Office of Management and 
Budget (OMB) Peer Review Bulletin (OMB 2004), we

[[Page 7383]]

solicited technical review from four qualified specialists of specific 
information regarding Lolita's heritage and our conclusion that she 
originated from the Southern Resident killer whale population as 
described in our status review update (NMFS, 2013). A status review of 
biological information and our DPS determination was conducted by the 
NMFS Northwest Fisheries Science Center in response to the petition to 
delist the Southern Resident killer whale DPS and included a review of 
information specific to Lolita's genetic heritage (NMFS, 2013). The 
peer review request focused on the specific paragraph regarding Lolita 
in the status review update (NMFS, 2013) that informed the proposed 
rule, and we received reviews from two independent experts. We received 
one comment on the peer review plan and peer review charge statement 
and provided that comment letter to the peer reviewers. We made the 
peer review charge, comments received on the peer review charge, and 
ultimate peer review report available online at: http://www.cio.noaa.gov/services_programs/prplans/ID261.html. The peer 
reviewer comments and conclusions and our responses to public comments 
are included in the summary below.

Summary of Peer Review and Public Comments Received

    Below we summarize and address the substantive public comments that 
were received during the public comment period for the proposed rule. 
In addition, information from the peer reviews is presented in both 
comment summaries and responses. Substantive comments and our responses 
are organized by relevant topics.

Biological Information on Lolita's Origin

    Comment 1: Several commenters and the two peer reviewers noted that 
the best available scientific information indicates that Lolita is most 
likely a member of the Southern Resident population. Many commenters 
cited the acoustic and genetic evidence provided in the proposed rule 
as proof that Lolita is a member of the Southern Resident community. 
Commenters cited the references in the status review update, including 
Hoelzel et al. (2007), Hoelzel (personal communication), Ford (1987), 
Candice Emmons (personal communication), and Pilot et al. (2010) (also 
referred to as Pilot (2009) in some comments). Commenters cited Pilot 
et al. (2010) as evidence that Lolita is related to Southern Residents 
using one genetic method, while others referenced the same paper noting 
that three other genetic methods did not indicate a relationship with 
Southern Residents. One commenter addressed the sample assigned to 
Lolita in Pilot et al. (2010), referenced personal communications with 
the lead author of the paper, and noted that results from the tests are 
insufficient to conclude that Lolita was a Southern Resident killer 
whale. In addition to the papers listed above, the peer reviewers also 
provided additional references to support their conclusions that Lolita 
is most likely a member of the Southern Resident population. One peer 
reviewer noted that our summary in the status review update (NMFS, 
2013) was overly simplistic. The comments on the peer review plan 
focused on individual data points and the uncertainties for individual 
genetic tests and requested additional information be provided to the 
peer reviewers.
    Response: We considered the best available information regarding 
Lolita's origin, including genetic test results from multiple papers, 
the peer reviews, and other lines of evidence in making our 
conclusions. In addition to the original peer review request, we also 
provided comments on the peer review plan and additional information 
for the reviewers to consider. The peer reviewers stated that 
mitochondrial DNA (mtDNA) tests are very likely diagnostic of natal 
populations. The mtDNA control region sequence is fixed for a single 
haplotype within most killer whale populations in the North Pacific. 
Lolita has the haplotype for Southern Residents, and the haplotype is 
distinct from the haplotypes found in transient, offshore and Northern 
Resident communities (including SE Alaska and Bering Sea). Based on 
sample sizes in studies to date, it is extremely unlikely that 
transient or Northern Residents have a Southern Resident haplotype that 
has gone undetected due to chance. Due to smaller sample sizes for 
offshores, it is harder to rule out that offshores might contain the 
Southern Resident haplotype in a small fraction of the population 
(i.e., 10 percent), but it has yet to be detected. The Southern 
Resident haplotype is shared with whales sampled off the Kamchatka 
Peninsula in Russia and from Prince William Sound in Alaska (Barrett-
Lennard, 2000; Parsons et al., 2013); however, additional data can be 
used to rule out the possibility that Lolita originated from these 
other populations. Using microsatellite analysis, researchers assigned 
Lolita to populations using different programs with varying 
probabilities and assessed kinship (Hoelzel et al., 2007; Pilot et al., 
2010). In Pilot et al. (2010), Lolita was assigned to the Southern 
Resident population with the highest probability (0.464) and with low 
probability to Kamchatka (0.016) or SE Alaska residents (0.004). Tests 
for kinship using microsatellite data found a presumed match between 
Lolita and a member of the Southern Resident L pod based on one of four 
tests, but it was not a close relationship (e.g., parent, offspring, or 
full sibling). Lolita did not show potential kinship with individuals 
of any other population. Using a different analysis, Pilot et al. 
(2010) also assigned Lolita to a Southern Resident cluster and not to 
the Kamchatka cluster. The microsatellite data do not appear to provide 
conclusive evidence on their own to identify Lolita's population of 
origin, but the data support the finding that she is a Southern 
Resident.
    The peer reviews concluded that the summary of our findings 
regarding Lolita in our status review update (NMFS, 2013) likely 
correctly concluded that Lolita is a Southern Resident and that, taken 
together, the mtDNA and microsatellite DNA provide a strong case for 
the assignment of Lolita to the Southern Resident population. While 
some comments focused on individual test results to form conclusions, 
we relied on all of the best available information in the petition, 
public comments on the 90-day finding and the proposed rule, peer 
review, peer reviewed journal articles, unpublished science reports, 
and the recovery plan (NMFS, 2008), taken together, to inform our 
internal review and conclusions. Based on the best available 
information regarding the location of capture and genetic information, 
we are confident that Lolita originated from the Southern Resident 
population.
    Comment 2: One commenter provided information from her study of the 
specific acoustic call type produced by Lolita, matching Lolita's calls 
to Southern Resident specific call types. The commenter suggested that 
further identification of Lolita's calls could be matched with specific 
matrilines. Other commenters noted that there is no statistically 
significant or peer reviewed data or analysis that the calls recorded 
opportunistically from Lolita match L pod calls. In addition, 
commenters noted that the Ford (1987) paper cited in the status review 
did not include specific information about Lolita and her calls. One 
peer reviewer noted that additional information about the timing of the 
recording of Lolita's calls and the origin of the whale sharing 
Lolita's tank would shed light on whether Lolita was an L pod whale or 
if she could have learned L pod calls from another whale.

[[Page 7384]]

    Response: In the status review update (NMFS, 2013), the Ford (1987) 
paper was cited to demonstrate that calls can be identified to 
population and also to pod, and we acknowledge that it does not include 
specific information about Lolita's calls. While the acoustic 
information about Lolita's calls is not published in a peer reviewed 
article, the personal communication by Candice Emmons does lend an 
additional line of evidence that is consistent with Lolita originating 
from the Southern Resident killer whale population. The study provided 
by a commenter is also not a peer reviewed published article. In 
addition, the peer review comments also raised uncertainty about 
identifying Lolita by her acoustic calls based on the personal 
communication. While we considered the anecdotal and unpublished 
information on Lolita's acoustic calls, noting the uncertainty 
surrounding them, we relied on the genetic data and capture location as 
the primary support for Lolita's status as a member of the Southern 
Resident killer whale population.
    Comment 3: In addition to genetic and acoustic information, 
Lolita's capture history was also mentioned by commenters and peer 
reviewers as evidence that she came from the Southern Resident 
population. One commenter noted photographs from the capture operation 
were identified as Southern Residents and that members of different 
communities have never been observed associating, concluding that all 
of the whales captured at Penn Cove were members of the Southern 
Resident community. One commenter, however, noted that the capture 
history raised questions about Lolita's origin, mentioning that the 
total number of whales in the area was too high to account for only the 
Southern Residents and that L pod whales were photographed near the 
operation but not in the net. The peer reviewers referenced the 
sighting history of killer whales in the capture area as support for 
Lolita's identification as a Southern Resident.
    Response: We did not receive any photo-identification quality 
photographs of the capture and have no specific documentation of the 
captures beyond the information summarized in the Recovery Plan for 
Southern Resident Killer Whales (NMFS, 2008) that attributes captures 
from Penn Cove, Washington, to the Southern Resident population. One 
peer reviewer noted the location of capture does not rule out that she 
is a transient (but mtDNA makes this highly unlikely), and that the 
capture location makes it highly unlikely that she is a Northern 
Resident, offshore, Western Pacific, Alaska Resident or from a distant, 
poorly known population. A review of the information raised in public 
comments, the peer reviews, comments on the peer review plan, and other 
available information finds this information continues to find the 
capture information regarding Lolita consistent with her membership as 
a Southern Resident. That review (Ford, 2014) notes that based on what 
is known about the ranges of North Pacific killer whales, the Penn 
Cove, WA capture location limits the possible populations of origin to 
Southern Residents or transients which are commonly seen, or far less 
likely to Northern Residents (only seen a handful of times in U.S. 
waters of the Salish Sea) or offshores (only sighted six times in 30 
years of observations and never south of Admiralty Inlet) (Krahn et 
al., 2004; Ford, 2006; Dahlheim et al., 2008). Regular observations in 
the Salish Sea have occurred since the mid-1970s, several years after 
the capture in question, and it seems highly unlikely that the 
distributions and habits of these populations would change dramatically 
over that short period of time (Ford, 2014).
    Comment 4: Several commenters noted that, morphologically, Lolita's 
saddle patch patterns do not readily match the majority of saddle patch 
patterns of the Southern Resident DPS, but they are more similar to 
saddle patches of the Alaska and Bering Strait residents. One peer 
reviewer suggested saddle patch and dorsal fin shape could be used to 
further address Lolita's origin.
    Response: Bain (1988) found differences between Northern and 
Southern Resident saddle shapes and Baird and Stacey (1988) reported 
different distributions of saddle shapes among residents and 
transients. Baird and Stacey (1988) identified five different patterns, 
with all five patterns present in resident killer whales. Lolita's 
saddle shape appears to be consistent with the ``horizontal notch'' 
type. While this saddle patch type is seen in Alaska Residents, it is 
more common in Southern Residents (Baird and Stacey, 1988). The 
information above regarding sighting records and the capture location 
includes an assessment by a peer reviewer, noting that it is highly 
unlikely that Lolita is an Alaska Resident.
    Comment 5: Several commenters reviewed the ESA section 4(a)(1) 
factors and identified how they applied to Lolita. Other commenters 
noted that none of the threats identified in the listing of the 
Southern Resident killer whale DPS (i.e., food scarcity, vessels, 
contaminants) apply to Lolita.
    Response: 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 
endangered status of the DPS is not the subject of the petitioned 
action. The petition requests we include Lolita in the ESA listing of 
Southern Residents and notes that an analysis of the five ESA section 
4(a)(1) factors 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 
section 4(a)(1) factors for Lolita or the wild population in this 
notice.

Captivity and Release

    Comment 6: One commenter questioned why the ESA applied to Lolita 
at all, considering she was held in captivity prior to December 28, 
1973, and the date of the listing of the Southern Resident killer 
whales.
    Response: The commenter presumably refers to section 9(b) of the 
ESA, 16 U.S.C. 1538(b)(1), which provides certain exemptions for 
animals already held in captivity or a controlled environment on either 
December 28, 1973, or the date of publication in the Federal Register 
of the final regulation adding such species to the list of endangered 
species, provided that such holding and any subsequent holding of the 
animal is not in the course of a commercial activity.
    In fact, this section is not a blanket exemption from the ESA for 
any animal so held; rather, it only lifts the ban on two very specific 
activities enumerated in subsections (a)(1)(A) and (G) of section 9: 
import or export of such species, and violation of any regulation 
pertaining to such species or to any threatened species. In other 
words, all of the other prohibitions of section 9 apply to animals that 
were held in captivity pre-ESA or pre-listing, including the 
prohibitions on take as well as on interstate or foreign commerce. Any 
import or export of Lolita that might be proposed in the future is 
beyond the scope of this rulemaking. For additional discussion of ESA 
section 9(b), see American Society for the Prevention of Cruelty to 
Animals v. Ringling Brothers

[[Page 7385]]

and Barnum and Bailey Circus, 502 F.Supp. 2d 103 (2007).
    Comment 7: Several commenters noted that the ESA does not allow for 
the exclusion of captive members from a listed species based on their 
captive status and referenced court cases (Safari Club International v. 
Jewell and Alsea Valley Alliance v. Evans, cited below in response) and 
recent USFWS notices regarding antelopes and chimpanzees that were 
referenced in the proposed rule. In addition, commenters noted that if 
Lolita is included in the listing, the ESA prohibitions on export, 
take, and interstate commerce will apply to her.
    Response: As the commenters note, several courts have held, and 
NMFS agrees, that the ESA does not allow for captive held animals to be 
assigned separate legal status from their wild counterparts on the 
basis of their captive status or through designation as a separate DPS 
(Safari Club International v. Jewell, 960 F.Supp. 2d 17 (D.D.C. 2013); 
Alsea Valley Alliance v. Evans, 161 F. Supp. 2d 1154 (D.Or. 2001). As 
noted in this final rule, as well as in recent regulations addressing 
captive antelopes (78 FR 33790; June 5, 2013) and a proposed rule for 
chimpanzees (78 FR 35201; June 12, 2013), captive members of a species 
have the same legal status as the species as a whole. Finally, as the 
commenters note, captive members of a listed species are also subject 
to the relevant provisions of section 9 of the ESA as warranted.
    Comment 8: One commenter expressed concern that including Lolita in 
the ESA listing would result in a violation of the Fifth Amendment, 
denying the property owners their rights without satisfying the 
Constitution's public use and just compensation requirements. One 
commenter supported their opposition to including Lolita in the ESA 
listing by citing examples of how extending regulations to privately 
owned members of a listed species could undermine private efforts to 
avoid extinction and recover species through private governance. 
Commenters also noted that financial considerations should not be 
considered in listing decisions.
    Response: First, section 4(b)(1)(A) of the ESA and its legislative 
history provides that listing decisions be based ``solely'' on the best 
scientific and commercial data available without reference to economic 
costs or private party impacts (H.R. Rep. No. 97-567, at 12, 1982 
U.S.C.C.A.N. 2807, 2812). Second, to the extent there are concerns 
about specific activities (including acts supporting conservation) 
associated with listed species, these issues are better evaluated in 
the context of a specific permit request and through the section 10 
permit process, which provides an avenue for defining, evaluating, and 
authorizing specific activities (50 CFR 222.301 et seq.). Accordingly, 
speculating about whether there are activities that property owners may 
wish to take is beyond the scope of this rule.
    Comment 9: One commenter took issue with our assertion that if 
Lolita was included in the ESA listing, we would not seek to amend 
critical habitat to include consideration of her or her captive 
environment. The commenter cited the requirement to designate critical 
habitat with the listing of a species in section 4(a)(3)(A) of the ESA.
    Response: NMFS designated critical habitat for the Southern 
Resident killer whale DPS on November 29, 2006 (71 FR 69054). NMFS 
interprets critical habitat to comprise the habitat used by the species 
in the wild, not the artificial surroundings of a particular species 
member in captivity, because those areas do not include relevant 
primary constituent elements of critical habitat (70 FR 52630; 
September 2, 2005). Accordingly, we do not intend to amend the existing 
critical habitat designation for Southern Resident killer whales with 
respect to Lolita.
    Comment 10: We received many comments addressing the type and scope 
of activities that might trigger section 9 concerns and/or warrant 
consideration for a section 10 permit. These comments took varying 
positions on the scope of activities that might fall within the 
category of allowable captive care activities.
    Response: In the proposed rule, we said that, depending on the 
circumstances, we would likely not find continued possession, care, and 
maintenance of a captive animal to be a violation of ESA section 9 (and 
therefore, such activities would not require a section 10 permit). Our 
discussion in the proposed rule was intended to be a general indication 
of our views, not factual findings on Lolita's actual circumstances or 
any proposals for future activities. Such findings are beyond the scope 
of this listing rule.
    We appreciate the concerns raised by the many comments regarding 
how the ESA section 9 prohibitions might apply to Lolita's particular 
circumstances. We believe these comments demonstrate the need for a 
more focused evaluation of these factors, which is more appropriately 
performed as part of a permit application process as opposed to this 
listing rule. Should the Miami Seaquarium apply for an ESA section 10 
permit, the process would involve a Federal Register notice of receipt 
followed by a public comment period.
    Comment 11: Commenters raised questions about the Miami Seaquarium 
conducting commercial activity with Lolita, stating their belief that 
section 9(b) of the ESA allows for captives to remain in captivity so 
long as they are not held or used for purposes of commercial activity. 
Other commenters stated that there is nothing illegal about exhibiting 
endangered animals for a fee.
    Response: Some commenters may have misinterpreted section 9(b) in 
this regard. As noted above, section 9(b) is a very limited exclusion 
from the prohibition on import and export, as well as certain 
regulatory requirements not applicable here. Any future proposal to 
import or export Lolita is beyond the scope of this rule, and so we 
need not further address the 9(b) exemption, including its clause 
regarding commercial activity, at this time.
    Comment 12: One commenter urged us to acknowledge that interstate 
movement of Lolita or any other captive listed species merely for 
display or as part of an animal exhibition would not require a permit 
under the ESA, citing U.S.C. 1538(a)(E) and 50 CFR 17.3.
    Response: At this time, the Miami Seaquarium has not presented any 
proposal to move Lolita, regardless of purpose, so we will not address 
this further in this listing rule, other than to note that the cited 
CFR provision is a regulation promulgated by the USFWS, and is 
therefore applicable to species under their jurisdiction.
    Comment 13: Commenters expressed concern over captivity of killer 
whales in general and about Lolita's current care at the Miami 
Seaquarium under the purview of APHIS under AWA. Other commenters noted 
the high level of care provided to Lolita at the Miami Seaquarium.
    Response: As noted above, Lolita's current captive care 
requirements are regulated by APHIS under the AWA and are currently the 
subject of ongoing litigation (Animal Legal Defense Fund et al. v. 
Elizabeth Goldentyer, USDA and Marine Exhibition Corporation No. 14-
12260 (11th Circuit Court of Appeals 2014)). Specific AWA captive care 
requirements are not under NMFS jurisdiction and are beyond the scope 
of our response to the petition. Therefore, comments regarding AWA 
compliance are not addressed in this final rule.
    Comment 14: Many comments supported Lolita's transfer to a sea pen 
or release from captivity into her home waters. Some commenters, while 
in favor of Lolita's ultimate release, argued that any decision on this 
issue in the

[[Page 7386]]

absence of a specific proposal is premature. Comments on whether there 
would be any conservation benefit to the conservation of wild killer 
whales from Lolita's release were mixed. Some comments identified 
benefits to Lolita and to the wild Southern Resident killer whale 
population, such as her ability to aid in the care of young whales 
(i.e., alloparenting). Others were against any relocation efforts, 
claiming that there would be no conservation benefits to wild whales 
and noting Lolita currently has a high level of care, contributes to 
educating the public, and there are risks to Lolita and the wild 
population associated with transport and release. One commenter noted 
that regulations regarding marine mammal rehabilitation under the MMPA 
declare that a marine mammal that has been in human care for 2 or more 
years is presumptively non-releaseable.
    Response: As noted above, the Miami Seaquarium has not presented 
any proposal to move (or release) Lolita. As for any future proposal to 
release her, we indicated in the proposed rule that there were certain 
activities that we believe could result in violations of section 9 of 
the ESA, specifically including ``releasing a captive animal into the 
wild.'' 79 FR at 4318 (January 27, 2014). We based this on our proposed 
rule listing five species of sturgeon (since finalized at 79 FR 31222, 
June 2, 2014). After taking into account the numerous comments on this 
topic, and examining our existing regulations, policies and practices, 
we have decided to elaborate on our views in this final rule. Releasing 
captive marine mammals to the wild is not without risk. Issues of 
concern include: disease transmission and/or unwanted genetic exchange 
between released animals and wild stocks; the ability of released 
animals to adequately forage and defend themselves from predators; and 
any behavioral patterns developed in captivity that could affect the 
social behavior of wild animals, as well as the social integration of 
the released animals.
    In fact, as one commenter noted, NMFS' MMPA regulations address a 
presumption of non-releasability, as well as dictate legal requirements 
under the MMPA for any proposal to release a captive animal. First, 50 
CFR 216.27(a)(1)(iii), addressing stranded marine mammals, states that 
the animal's potential for survival in the wild must be evaluated at 6-
month intervals, ``until 24 months from capture or import, at which 
time there will be a rebuttable presumption that release to the wild is 
not feasible.'' Second, 50 CFR 216.35(e) states: ``Captive marine 
mammals shall not be released into the wild unless specifically 
authorized by the Office Director under a scientific research or 
enhancement permit.''
    The issues surrounding any release of Lolita to the wild are 
numerous and complex and are not ripe for analysis in this listing 
rule. Such issues would be more appropriately evaluated in the context 
of a specific section 10 permit application. Any such process would 
include rigorous review by the scientific community, the Marine Mammal 
Commission, and the public, and be subject to an associated NEPA 
analysis, prior to action being taken.

Changes From the Proposed Rule

    There are no changes from the proposed amendment to the ESA listing 
of the Southern Resident killer whale DPS in this final rule. This 
final rule implements the amendment to the listing language, removing 
the exclusion for captive whales from the regulatory description of the 
Southern Resident killer whale DPS. The public comments provided 
opposing positions on this approach, as well as Lolita's status as a 
member of the Southern Resident killer whale population. The peer 
reviews supported Lolita's status as a member of the Southern Resident 
killer whale population. See the Summary of Peer Review and Public 
Comments Received section above and the Final Determination and 
Amendment to Listing section below for information on the additional 
data that support the conclusion that captive members should be 
included in the listing and the determination that best available 
science supports Lolita's status as a member of the Southern Resident 
killer whale population and therefore the ESA-listed 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 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).

Final Determination and Amendment 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. The peer 
reviewers referenced the capture location and sighting history of 
different populations, in addition to other information (i.e.,

[[Page 7387]]

genetics), to support their conclusions that Lolita most likely came 
from the Southern Resident population. The petition notes that Lolita's 
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 
cited genetic analysis completed since the original 2005 listing, that 
indicates Lolita has a genotype consistent with a Southern Resident 
origin (Hoelzel et al., 2007; Hoelzel, personal communication), and we 
noted that Lolita's acoustic calls are typical of L pod (Ford, 1987; 
Candice Emmons, personal communication). The status review update 
(NWFSC, 2013) also cites information in Pilot et al. (2010). 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 there 
is a high degree of reproductive isolation from other resident 
populations that comprise the North Pacific Resident subspecies.
    As described above in the response to comments, the peer reviewers 
identified that mtDNA tests are very likely diagnostic of natal 
populations. The mtDNA control region sequence is fixed for a single 
haplotype within most killer whale populations in the North Pacific. 
Lolita has the haplotype for Southern Residents, which is distinct from 
the haplotypes found in transient, offshore, and Northern Resident 
communities (including SE Alaska and Bering Sea). Based on sample sizes 
in studies to date, it is extremely unlikely that transient or Northern 
Residents have a Southern Resident haplotype that has gone undetected 
due to chance. Due to smaller sample sizes for offshores, it is harder 
to rule out that offshores might contain the Southern Resident 
haplotype in a small fraction of the population (i.e., 10 percent), but 
it has yet to be detected. The Southern Resident haplotype is shared 
with whales sampled off the Kamchatka Peninsula in Russia and from 
Prince William Sound in Alaska (Barrett-Lennard, 2000; Parsons et al., 
2013), but additional data can be used to rule out the possibility that 
Lolita originated from these other populations. Using microsatellite 
analysis, researchers assigned Lolita to population using different 
programs with varying probabilities and assessed kinship (Hoelzel et 
al., 2007; Pilot et al., 2010). In Pilot et al. (2010), Lolita was 
assigned to the Southern Resident population with the highest 
probability (0.464) and with low probability to Kamchatka (0.016) or SE 
Alaska residents (0.004). Tests for kinship found a putative match 
between Lolita and a member of the Southern Resident L pod based on one 
of four tests, but it was not a close relationship (e.g., parent, 
offspring, or full sibling). Lolita did not show potential kinship with 
individuals of any other population. Using a different analysis, Pilot 
et al. (2010) also assigned Lolita to a Southern Resident cluster and 
not to the Kamchatka cluster. The microsatellite data do not appear to 
provide conclusive evidence on their own to identify Lolita's 
population of origin, but they are consistent with her being a Southern 
Resident.
    The peer review conclusions were that our status review update 
(NMFS, 2013) was overly simplistic, but likely correctly concluded that 
Lolita is a Southern Resident and that, taken together, the mtDNA and 
microsatellite DNA data provide a strong case for the assignment of 
Lolita to the Southern Resident population. As described above, we 
relied on information in the petition, public comments on the 90-day 
finding and the proposed rule, peer review and best available 
information, including peer reviewed journal articles and unpublished 
science reports and the recovery plan (NMFS, 2008) to inform our 
internal review and conclusions. Similar to the peer reviews and as 
raised in public comments, we acknowledge the uncertainty inherent in 
individual test results and observations; however, based on all of the 
best available scientific information, taken together, including 
results from multiple genetic studies, as well as other lines of 
evidence regarding capture and sighting history, we can be confident 
that Lolita originated from the Southern Resident population (Ford, 
2014). 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. 
Ford (1987) describes killer whale acoustic calls and how they can be 
identified to population and even to pod. While there is anecdotal 
information that Lolita shares acoustic characteristics with the 
members of the Southern Resident killer whale DPS found in the wild, 
this evidence is not as strong as the genetic data. In addition, 
morphological data, such as saddle patch pattern, are also consistent 
with, but not conclusive of, Lolita being a Southern Resident. This 
best available science supports Lolita's status as a member of the 
Southern Resident killer whale population.
    Some commenters contend that Lolita not be included in the Southern 
Resident killer whale DPS, similar 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 characteristics that Lolita shares with 
the Southern Resident killer whale DPS and often highlighted individual 
test results rather than all of the available scientific information 
taken together. We find the multiple genetic characteristics constitute 
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; Ford, 2014). 
Additionally, while the ESA authorizes the listing, delisting, or 
reclassification of a species, subspecies, 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. Accordingly, this case does 
not authorize the exclusion of Lolita from the Southern Resident Killer 
Whale DPS listing based on the best available science supporting her 
membership in the DPS.
    Other comments 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 identify DPSs indicates 
that Congress intended identification of DPSs to be used for the 
identification 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

[[Page 7388]]

151, 96th Congress, 1st Session). Finally, NMFS' decision making 
relevant to identifying a captive only DPS, in this context, is 
discretionary and not subject to judicial review (Safari Club 
International v. Jewell, 960 F. Supp. 2d 17 (DDC 2013)).
    As described in the proposed rule (79 FR 4313; January 27, 2014), 
the ESA does not support the exclusion of captive members from a 
listing based solely on their captive status. 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. Section10(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 final listing of five 
species of foreign sturgeon (79 FR 31222; June 2, 2014). Further, based 
upon the purposes of the ESA and its legislative history, courts have 
held and 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 (Safari Club 
International v. Jewell, 960 F. Supp. 2d 17 (DDC 2013)). 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).
    In a recent notice announcing a Final Policy of Interpretation of 
the Phrase ``Significant Portion of Its Range (SPR)'' in the Endangered 
Species Act's Definitions of ``Endangered Species'' and ``Threatened 
Species'' (79 FR 37578; July 1, 2014), the Services also confirmed the 
legal status of captive members of listed species. The notice explains, 
with regard to species found in captivity, the Services consider a 
captive population to have no ``range'' separate from that of the 
species to which it belongs (captive populations cannot be considered a 
SPR). The notice also states ``captive members have the same legal 
status as the species as a whole.''
    Based on the preceding discussion, the information submitted during 
the public comment period, the peer reviews, and best available science 
and information, we find that captive members of the Southern Resident 
killer whale population should not be excluded from the listed Southern 
Resident killer whale DPS based on their captive status. Accordingly, 
this rule removes 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 and several public 
comments included 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 section 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). This final rule 
amends the language describing the Southern Resident killer whale DPS 
by removing the exclusion of captive whales. With this change, Lolita, 
a female killer whale captured from the Southern Resident killer whale 
population in 1970, is not excluded from the Southern Resident killer 
whale DPS due to her captive status.

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 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

[[Page 7389]]

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 proposed 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 
addition, the recent notice announcing a final policy interpreting 
Significant Portion of its Range under the ESA notes the Services 
consider a captive population to have no ``range'' separate from that 
of the species to which it belongs (79 FR 37578; July 1, 2014). 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. 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. 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 Might 
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 into captivity, 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.
    In the proposed rule, we said that, depending on the circumstances, 
we would not likely find continued possession, care, and maintenance of 
a captive animal to be a violation of section 9 (and that therefore, 
such activities would not require a section 10 permit). As noted above, 
we received numerous comments addressing the types of activities that 
might trigger section 9 concerns and/or warrant consideration for a 
section 10 permit. We believe these comments demonstrate the need for a 
more focused evaluation of these factors, which is more appropriately 
performed as part of a permit application process as opposed to this 
listing rule.
    Likewise, we indicated in the proposed rule certain activities that 
we believe could result in violations of section 9 of the ESA, 
specifically including ``releasing a captive animal into the wild.'' 79 
FR at 4318 (January 27, 2014). We based this on our proposed rule 
listing five species of sturgeon (since finalized at 79 FR 31222, June 
2, 2014).
    In this final rule, NMFS notes that issues surrounding any release 
of Lolita to the wild are numerous and complex and are not ripe for 
analysis in this listing rule. Such issues would be better evaluated in 
the context of a specific section 10 permit application. Any such 
process would include rigorous review by the scientific community, the 
Marine Mammal Commission, and the public, and be subject to an 
associated NEPA analysis, prior to action being taken.

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.

Information Quality Act and Peer Review

    In December 2004, the Office of Management and Budget (OMB) issued 
a Final Information Quality Bulletin for Peer Review establishing 
minimum peer review standards, a transparent process for public 
disclosure of peer review planning, and opportunities for public 
participation. The OMB Bulletin, implemented under the Information 
Quality Act (Public Law 106-554), is intended to enhance the quality 
and credibility of the Federal government's scientific information, and 
applies to influential or highly influential scientific information 
disseminated on or after June 16, 2005. To satisfy our requirements 
under the OMB Bulletin, we obtained independent peer review of the 
information on Lolita in our status review update (NMFS, 2013). Four 
independent specialists were selected from the academic and scientific 
community, Federal and state agencies, and the private sector for this 
review (with two respondents). All peer reviewer comments were 
addressed in this final rule. The peer review process is detailed at: 
http://www.cio.noaa.gov/services_programs/prplans/ID261.html.

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

[[Page 7390]]

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 final rule is 
exempt from review under Executive Order 12866. This final 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 final 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 final 
rule will be shared with the relevant state agencies in each state in 
which the species is believed to occur.

List of Subjects in 50 CFR Part 224

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

    Dated: February 4, 2015.
Eileen Sobeck,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For the reasons set out in the preamble, 50 CFR part 224 is 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.

0
2. In Sec.  224.101, in the table in paragraph (h), revise the entry 
for ``Whale, killer (Southern Resident DPS)'' to read as follows:


Sec.  224.101  Enumeration of endangered marine and anadromous species.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                            Species\1\
------------------------------------------------------------------  Citation(s) for     Critical
                                                  Description of        listing          habitat      ESA Rules
         Common name            Scientific name    listed entity    determination(s)
----------------------------------------------------------------------------------------------------------------
                                                 Marine Mammals
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Whale, killer (Southern        Orcinus orca....  Killer whales     [Insert citation]      226.206       224.103
 Resident DPS).                                   from the J, K,    2/10/2015.
                                                  and L pods.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement,
  see 61 FR 4722, February 7, 1996), and evolutionarily significant units (ESUs) (for a policy statement, see 56
  FR 58612, November 20, 1991).

* * * * *
[FR Doc. 2015-02604 Filed 2-9-15; 8:45 am]
BILLING CODE 3510-22-P