7380 Federal Register / Vol. 80, No. 27 / Tuesday, February 10, 2015 / Rules and Regulations 

(n) Training. (1) A program must train 

all governing body, policy council, 

management, and staff who determine 

eligibility on applicable Federal 

regulations and program policies and 

procedures. Training must, at a 

minimum: 

(i) Include methods on how to collect 

complete and accurate eligibility 

information from families and third 

party sources; 

(ii) Incorporate strategies for treating 

families with dignity and respect and 

for dealing with possible issues of 

domestic violence, stigma, and privacy; 

and, 

(iii) Explain program policies and 

procedures that describe actions taken 

against staff, families, or participants 

who intentionally attempt to provide or 

provide false information. 

(2) A program must train management 

and staff members who make eligibility 

determinations within 90 days 

following the effective date of this rule, 

and as soon as possible, but within 90 

days of hiring new staff after the initial 

training has been conducted. 

(3) A program must train all governing 

body and policy council members 

within 180 days following the effective 

date of this rule, and within 180 days of 

the beginning of the term of a new 

governing body or policy council 

member after the initial training has 

been conducted. 

(4) A program must develop policies 

on how often training will be provided 

after the initial training. 

[FR Doc. 2015–02491 Filed 2–9–15; 8:45 am] 

BILLING CODE P 

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 


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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 


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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 


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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 (BarrettLennard, 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. 


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7384 Federal Register / Vol. 80, No. 27 / Tuesday, February 10, 2015 / Rules and Regulations 

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 


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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 


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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., 


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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 (BarrettLennard, 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 


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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 


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Federal Register / Vol. 80, No. 27 / Tuesday, February 10, 2015 / Rules and Regulations 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 


rljohnson on DSK3VPTVN1PROD with RULES
7390 Federal Register / Vol. 80, No. 27 / Tuesday, February 10, 2015 / Rules and Regulations 

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-ofinformation 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 

■ 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. 

■ 2. In § 224.101, in the table in 

paragraph (h), revise the entry for 

‘‘Whale, killer (Southern Resident 

DPS)’’ to read as follows: 

§ 224.101 Enumeration of endangered 

marine and anadromous species. 

* * * * * 

(h) * * * 

Species1

Citation(s) for listing 

determination(s) 

Critical 

habitat ESA Rules 

Common name Scientific name Description of listed entity 

Marine Mammals 

*******

Whale, killer (Southern 

Resident DPS).

Orcinus orca ..................... Killer whales from the J, K, 

and L pods.

[Insert citation] 2/10/2015 226.206 224.103 

* * * * * * * 

1Species 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 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 660 

[Docket No. 131119977–4381–02] 

RIN 0648–XD640 

Magnuson-Stevens Act Provisions; 

Fisheries Off West Coast States; 

Pacific Coast Groundfish Fishery; 

Pacific Whiting Allocations and 

Fishery Closure; Pacific Whiting 

Seasons 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Reapportionment of tribal 

Pacific whiting allocation, and 

implementation of an Ocean Salmon 

Conservation Zone to protect Chinook 

salmon. 

SUMMARY: This document announces the 

reapportionment of 45,000 metric tons 

(mt) of Pacific whiting from the tribal 

allocation to the non-tribal commercial 

fishery sectors via two actions, in order 

to allow full utilization of the Pacific 

whiting resource. It also announces the 

implementation of an Ocean Salmon 

Conservation Zone that prohibited the 

targeting of Pacific whiting with 

midwater trawl gear shoreward of 

approximately 100 fathoms (fm) (183 m) 

to reduce Chinook salmon bycatch in 

the Pacific whiting fishery. 

DATES: The rules set out in this 

document were made through automatic 

action, and are published in the Federal 

Register as soon as practicable after they 

are issued. The Ocean Salmon 

Conservation Zone was effective 0800 

local time October 20, 2014 until 

December 31, 2014. The 

reapportionments of Pacific whiting 

were effective from 1200 local time, 

September 12, 2014 (25,000 mt) and 

2000 local time October 23, 2014 

(additional 20,000 mt), until December 

31, 2014. Comments will be accepted 

through February 25, 2015. 

ADDRESSES: You may submit comments, 

identified by NOAA–NMFS–2014–0020 

by any of the following methods: 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal at 

www.regulations.gov/

#!docketDetail;D=NOAA-NMFS-2014- 

0020, click the ‘‘Comment Now!’’ icon, 

complete the required fields, and enter 

or attach your comments. 

• Mail: William W. Stelle, Jr., 

Regional Administrator, West Coast 

Region, NMFS, 7600 Sand Point Way 

NE., Seattle, WA 98115–0070, Attn: 

Miako Ushio. 

Instructions: Comments sent by any 

other method, to any other address or 

individual, or received after the end of 

the comment period, may not be 

considered by NMFS. All comments 

received are a part of the public record. 

All personal identifying information 

(e.g., name, address, etc.), confidential 

business information, or otherwise 

sensitive information submitted 

voluntarily by the sender will be 

publicly accessible. NMFS will accept 

anonymous comments (enter ‘‘N/A’’ in 

the required fields if you wish to remain 

anonymous). 

FOR FURTHER INFORMATION CONTACT: 

Miako Ushio (West Coast Region, 

NMFS), phone: 206–526–4644 or email: 

miako.ushio@noaa.gov. 

SUPPLEMENTARY INFORMATION: 


rljohnson on DSK3VPTVN1PROD with RULES