Federal Register, Volume 80 Issue 27 (Tuesday, February 10, 2015)

[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

[[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