[Federal Register Volume 65, Number 88 (Friday, May 5, 2000)]
[Proposed Rules]
[Pages 26167-26176]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-11285]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 224

[Docket No 990910253-0118-02; ID No. 041300C]
RIN 0648-AM90


Endangered and Threatened Species; Proposed Endangered Status for 
White Abalone

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS has completed a comprehensive status review of the white 
abalone (Haliotis sorenseni) under the Endangered Species Act (ESA). 
Based on the findings from the status review and a review of the 
factors affecting the species, NMFS has concluded that white abalone is 
in danger of extinction throughout a significant portion of its range. 
Accordingly, NMFS is now issuing a proposed rule to list white abalone 
as an endangered species. NMFS is not proposing to designate critical 
habitat for white abalone at this time, but is requesting public 
comments on the issues pertaining to this proposed rule.

DATES: Comments must be received no later than 5 p.m., Pacific daylight 
time, on July 5, 2000.
    Requests for public hearings must be received by June 19, 2000. If 
NMFS receives a request for public hearings, it will announce the dates 
and locations of the public hearings in a later Federal Register 
notice.

ADDRESSES: Comments on this proposed rule and requests for public 
hearings or reference materials should be sent to the Assistant 
Regional Administrator, Protected Resources Division, NMFS, Southwest 
Region, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213. 
Comments may also be sent via facsimile (fax) to 562-980-4027, but they 
will not be accepted if submitted via e-mail or Internet.

FOR FURTHER INFORMATION CONTACT: Irma Lagomarsino, 562-980-4020; or 
Marta Nammack/Terri Jordan, 301-713-1401, or send a request via 
electronic mail to <a href="/cdn-cgi/l/email-protection#fac69bda92889f9cc7" http: whiteab.info">whiteab.info</a>@noaa.gov">whiteab.info@noaa.gov</a>.

SUPPLEMENTARY INFORMATION:

Background

    Based on information indicating a major decline in abundance, NMFS 
designated the white abalone, a marine invertebrate, as a candidate 
species under the ESA of 1973, as amended (16 U.S.C. 1531 et seq.), on 
July 14, 1997 (62 FR 37560). In August 1998, NMFS contracted with 
Scripps Institution of Oceanography (SIO) to conduct a review of the 
biological status of white abalone, including the current and 
historical impacts to the species. NMFS received the draft status 
review on April 21, 1999, from SIO. In order to obtain an independent 
peer-review, NMFS requested that three non-federal scientists review 
and report on the scientific merits of the status review. By August 
1999, NMFS received these anonymous reviews; NMFS scientists also 
reviewed the document. Subsequently, SIO incorporated all of these 
comments into the status review, and submitted the revised final status 
review document to NMFS on March 20, 2000.
    NMFS received a petition on April 29, 1999, from the Center for 
Biological Diversity and the Southwest Center for Biological Diversity 
to list white abalone as an endangered species on an emergency basis 
and designate critical habitat under the ESA. On May 17, 1999, NMFS 
received a second petition to list white abalone as an endangered 
species throughout its range and designate critical habitat under the 
ESA from the following organizations: the Marine Conservation Biology 
Institute, Abalone and Marine Resources Council, Sonoma County Abalone 
Network, Asociacion Interamericana para la Defensa del Ambiente, 
Channnel Islands

[[Page 26168]]

Marine Resource Institute, Proteus SeaFarms International, and the 
Environmental Defense Fund and Natural Resources Defense Council. NMFS 
considers this second request as supplemental information to the first 
petition.
    On September 24, 1999, NMFS published its 90-day finding regarding 
the April 29, 1999, petition to list white abalone as an endangered 
species (64 FR 51725). It concluded that the April 29, 1999, petition 
presented substantial scientific and commercial information indicating 
that a listing may be warranted, based on criteria specified in 50 CFR 
424.14(b)(2). However, NMFS did not find that the petition presented 
substantial evidence to warrant listing of white abalone on an 
emergency basis. To ensure that the ongoing white abalone status review 
was complete and based on the best available scientific and commercial 
data, NMFS's 90-day finding also solicited information and comments on 
(1) whether white abalone is endangered or threatened; (2) factors that 
have contributed to the decline of white abalone; and (3) any efforts 
being made to protect the species throughout its range. The comment 
period ended on November 23, 1999.
    On November 23, 1999, NMFS received a letter from the Center for 
Marine Conservation (CMC) strongly recommending that NMFS list white 
abalone as an endangered species on an emergency basis under section 
4(b) of the ESA and immediately implement recovery measures. Based on 
conclusions reported in Davis et al. (1996 and 1998), CMC stated that 
white abalone has not been able to recover from overharvesting and 
faces inevitable extinction in the near future unless measures are 
taken to recover the species. CMC believes that an emergency listing 
will benefit white abalone because NMFS could then initiate the 
recovery planning process. Similar to the conclusion in the 90-day 
finding notice (64 FR 51725, September 24, 1999), NMFS believes that 
there is insufficient information to warrant listing white abalone on 
an emergency basis under the ESA at this time and that the normal 
rulemaking procedures are sufficient and appropriate for the protection 
of white abalone. Based on its review of the petition and on other 
available information, NMFS believes the decline of white abalone in 
California is primarily the result of over-harvesting in the early 
1970s. By March 1996, the State of California closed commercial and 
recreational fishing for white abalone. Also, the best available 
information indicates that white abalone habitat is not currently at 
risk from destruction or modification. Thus, NMFS concludes that no 
emergency exists to pose a significant risk to the well-being of the 
species and that an emergency listing is not warranted at this time.

Abalone Life History and Ecology

    Abalone are marine gastropods belonging to the family Haliotidae 
and genus Haliotis and are characterized by a flattened spiral shell 
(Haaker, 1986; Hobday and Tegner, 2000a). Abalone have separate sexes 
and are broadcast spawners, releasing millions of eggs or sperm during 
a spawning event. Fertilized eggs hatch and develop into free-swimming 
larvae, spending from 5 to 14 days as non-feeding zooplankton before 
development (i.e., metamorphosis) into the adult form. After 
metamorphosis, they settle onto hard substrates in intertidal and 
subtidal areas. Abalone grow slowly and have relatively long lifespans 
of 30 years or more. Young abalone (referred to as ``cryptic abalone'') 
seek cover in rocky crevices, under rocks, and deep crevices, feeding 
on benthic diatoms, bacterial films, and single-celled algae found on 
coralline algal substrate (Cox, 1962). As abalone grow and become less 
vulnerable to predation at about 75-100 mm (2.9-3.9 inches) in length, 
they emerge from secluded habitat to more open, visible locations where 
their principal food source, attached or drifting algae, is more 
available (Cox 1962). In dive surveys, these animals are classified as 
``emergent'' abalone. Abalone lead a relatively sedentary lifestyle. 
Although juveniles may move tens of meters per day, adult abalone have 
extremely limited movements as they increase in size (Cox, 1962; 
Tutschulte, 1976; Shephard, 1973).
    Successful abalone recruitment has been related to the interaction 
between spawning density, spawning period and length, and fecundity 
(Hobday and Tegner, 2000a). At low adult densities, fertilization 
success is much reduced. When males and females are greatly separated, 
fertilization success may be negligible and recruitment failure will 
likely occur (Hobday and Tegner, 2000a).

White Abalone

    Eight species of Haliotis occur along the west coast of North 
America. Historically, white abalone ranged from Point Conception, 
California, U.S.A., to Punta Abreojos, Baja California, Mexico. 
Although studies have recognized possible population structure in other 
Haliotis species, no studies have identified distinct populations of 
white abalone (Hobday and Tegner, 2000a). As its name suggests, the 
shell of Haliotis sorenseni is white--the adult body is characterized 
by a mottled orange tan epipodium. Tutschulte (1976) reported that 
white abalone are not as cryptic as other California abalone species.
    White abalone is the deepest-living of the west coast Haliotis 
species (Hobday and Tegner, 2000), usually reported at subtidal depths 
of between 20-60 m (66-197 ft) and historically most ``abundant'' 
between 25-30 m (80-100 ft) (Cox, 1960; Tutschulte, 1976). At these 
depths, white abalone are found in open low relief rock or boulder 
habitat surrounded by sand (Tutschulte, 1976; Davis et al., 1996).
    White abalone may be limited to depths where algae grow, a function 
of light levels and substrate availability, because they are reported 
to feed less on drift algae and more on attached brown algae 
(Tutschulte, 1976; Hobday and Tegner, 2000a). The upper and lower 
limits of white abalone depth distribution could also be influenced by 
temperature effects on larvae and juvenile survival. Leighton (1972) 
found that white abalone larval survival is reduced at lower 
temperatures. Tutschulte (1976) speculated that white abalone may have 
been restricted to depths below 25 m (82 ft) by predation from sea 
otters when sea otter and white abalone latitudinal ranges overlapped 
or from competition with pink abalone and predation by octopuses.
    Maximum shell length recorded for white abalone in California and 
Mexico is 20-25 cm (7.8-9.8 inches) and 17 cm (6.6 inches), 
respectively. However, ``average'' observed size is about 13-20 cm (5-8 
inches), and animals that are less than 10 cm (4 inches) are rare (Cox, 
1960). White abalone reach sexual maturity at a size of between 88 and 
134 mm (3.4-5.2 inches) in approximately 4 to 6 years and spawn in the 
winter, between February and April (Tutschutle, 1976; Tutschutle and 
Connell, 1981). Compared to two other California species, white abalone 
have a high degree of spawning synchronicity wherein most males and 
females spawn in a relatively short time period. Based on a peak in 5-
year old animals prior to the peak of the white abalone fishery, 
Tutschulte (1976) suggested that white abalone have irregular 
recruitment. Tutschulte (1976) estimated that maximum lifespan of white 
abalone is 35 to 40 years.
    In the laboratory, settlement of white abalone larvae occurred 
after 9 to 10 days at 15 <SUP>o</SUP>C (59<SUP>o</SUP>F) (Leighton, 
1972). This larval period is longer than periods reported for other 
California abalone species (Hobday and Tegner, 2000a). Drift tube 
studies have found that larval

[[Page 26169]]

periods of most abalone species would not usually be long enough for 
regular dispersal of abalone between islands and mainland areas (Tegner 
and Butler, 1985b). Since they have a relatively long larval period, 
potential dispersal distances may be greater for white abalone than 
those other of abalone species (Hobday and Tegner, 2000a).

Status of White Abalone

    Section 3 of the ESA defines the term ``endangered species'' as any 
species that is in danger of extinction throughout all or a significant 
portion of its range. The term ``threatened species'' is defined as 
``any species which is likely to become an endangered species within 
the foreseeable future throughout all or a significant portion of its 
range.'' NMFS identified a number of factors that should be considered 
in evaluating the level of risk faced by a species, including (1) 
current abundance in relation to historical abundance; (2) trends in 
abundance; (3) spatial and temporal distribution and effective 
population size, and (4) natural and human influences. NMFS has 
evaluated these factors to aid in determining the status of white 
abalone.
    1. Current Abundance in Relation to Historical Abundance
    a. Historical Abundance. Estimates of pre-exploitation abundance of 
white abalone may be made from both fishery-independent and fishery-
dependent data and by using an estimate of the total area of white 
abalone habitat within the species range. Based on a historical range 
between Point Conception and Punta Eugenia and on the assumption that 3 
percent of the area within depth contours of 25 to 65 m (82-213 ft) is 
rocky reef habitat, Davis et al. (1998) estimate total area of white 
abalone habitat throughout the species' range to be 966 hectares (ha). 
Using Tutschulte's (1976) density estimate of 0.23 white abalone/
m<SUP>2</SUP>, Hobday and Tegner (2000a) estimated a pre-exploitation 
abundance of 2,221,800 animals. Alternatively, Hobday and Tegner 
(2000a) calculated another pre-exploitation population abundance 
estimate for white abalone using data from Mexico. Using fishery-
independent data from abalone surveys conducted by Guzman and Proo et 
al. (1976) between 1968 and 1970 along the west coast of Baja 
California, Mexico, within the depth contours between 0 to 27 m (0-89 
ft), Hobday and Tegner (2000a) estimated that the pre-exploitation 
population size in Mexico was 2.12 million individuals. Hobday and 
Tegner (2000a) then doubled this estimate to account for white abalone 
in California and calculated a pre-exploitation estimate of white 
abalone abundance of 4.24 million animals throughout the range of the 
species. This estimate incorrectly assumes that white abalone were 
found throughout the area surveyed (i.e., in southern Baja, California) 
and, thus, this calculation may overestimate white abalone abundance.
    Hobday and Tegner (2000a) also calculated a pre-exploitation 
abundance of white abalone using fishery-dependent data. Between the 
peak years of white abalone exploitation in California, approximately 
605,807 lb (274,792 kg) of white abalone were landed. (Assuming 1.67 
lbs (.76 kg)/animal, 362,759 animals were harvested). Since it would 
have taken 10 years for white abalone to reach California's legal size 
limit, and the fishery collapsed after only 10 years of exploitation, 
Hobday and Tegner (2000a) assume that all legal-sized adults were 
harvested every year. If total catch in the 10-year period represents 
the total accumulated virgin stock and there was no recruitment, Hobday 
and Tegner (2000a) estimate the former California population size 
equals the total catch between 1969 and 1978, namely 362,759 animals. 
If this figure is doubled to include Mexico, the historical abundance 
estimate is 725,518 white abalone throughout its historical range. 
However, the actual pre-exploitation abundance must have been greater 
because some white abalone were harvested in subsequent years, some 
animals were lost to natural mortality, and white abalone from the 
recreational catch were not included in the estimate. Not all of the 
pre-exploitation estimates account for cryptic white abalone.
    b. Current Abundance. Using a research submersible vessel, the 
first deep-reef surveys for white abalone were conducted near Santa 
Barbara, Anacapa, and Santa Cruz Islands, and on Osborn Bank in 1996 
and 1997 (Davis et al., 1998). After searching 77,070 m<SUP>2</SUP> 
(829,601 ft<SUP>2</SUP>) of rocky reef between 27 and 67 m (89 and 220 
ft) depth, only nine live white abalone were found. Assuming that 
population densities of white abalone estimated from these surveys 
(i.e., 0.000167 white abalone/m<SUP>2</SUP>, plus or minus 0.0001) were 
representative of white abalone densities throughout their entire range 
and that the total available habitat within the species range is 966 ha 
(2,386 acres), Hobday and Tegner (2000a) estimate that the 1996/1997 
population size throughout the entire range of the species was 1,613 
white abalone. They conclude from these results that white abalone are 
absent or at extremely low densities at all depths and areas surveyed. 
Using these same data, Davis et al. (1998) estimated that fewer than 
1,000 white abalone existed in 1996/1997 throughout the species range 
and concluded that these submersible surveys both confirmed the 
``critically low'' population density and demonstrated the lack of a de 
facto refugia beyond normal scuba depths.
    In October 1999, scientists conducted another deep-reef survey for 
white abalone near Santa Cruz, Anacapa, Santa Barbara, San Clemente and 
Santa Catalina Islands and on Osborn, Farnsworth, Tanner and Cortez 
Banks using a submersible vessel (Haaker et al., 2000; Hobday and 
Tegner, 2000b). In contrast to the 1996/1997 submersible surveys, the 
areas selected for the October 1999 study were the areas where the 
greatest amount of white abalone had been removed by the commercial and 
recreational fisheries in the 1970s (Hobday and Tegner, 2000a). This 
survey covered approximately 57.5 ha (142 acres) (Haaker et al., 2000) 
of suitable white abalone habitat, at a depth between 19 and 65 m (62 
and 213 ft), and found 157 live white abalone (average density = 
0.00027 white abalone/m<SUP>2</SUP> or 2.7 white abalone per ha).
    The 1996/1997 and 1999 submarine surveys for white abalone in 
California covered approximately 6 percent of the estimated 966 ha 
(2,386 acres) of suitable habitat throughout the species' range (Hobday 
and Tegner, 2000b). Hobday and Tegner (2000b) combined data from these 
surveys and calculated another estimate of current population 
abundance. This estimate should be more representative of the 
population because they used spatially-distinct white abalone densities 
from the different areas surveyed. Based on the estimated potential 
habitat (966 ha or 2,386 acres) and the area-specific white abalone 
densities, Hobday and Tegner (2000b) calculated a revised current 
population abundance of 2,540 individuals throughout the range of the 
species.
    All of these historical and current white abalone abundance 
estimates are likely to be biased for several reasons. First, the total 
amount of white abalone habitat may be more or less than the 3-percent 
assumed area within the depth contours between 25 and 65 m (82-213 ft), 
and the amount may vary among areas (Hobday and Tegner, 2000b). Second, 
since the exact width of the submarine transect widths are not known, 
the area actually surveyed may be larger or smaller. In addition, since 
white abalone prefer low relief rocks covered with folise algae near 
sand at depths between 40-60 m, observers

[[Page 26170]]

collecting data during surveys may preferentially search these areas. 
Finally, in 1996 alone, 12,307 kg (27,132 lb) of white abalone were 
reported in Mexican commercial abalone landings. Because the average 
weight of white abalone is 1.67 lb (0.75 kg), represents approximately
    32,000 white abalone (Hobday and Tegner, 2000a). If the Mexican 
landings data are correct, the current white abalone density estimates 
based on fishery-independent data may be too low.
    2. Trends in Abundance
    a. Commercial Fishery Data - California. In 1967, at a time when 
the total abalone landings in California began to decline, commercial 
white abalone harvest began (Hobday and Tegner, 2000a). Within a 9-year 
period between 1969 and 1977, over 95 percent of the commercial white 
abalone landings took place. White abalone landings peaked at 144,000 
lb (86,000 individuals) in 1972, only 3 years after intense harvest 
began. The decline in white abalone landings was so dramatic by 1978 
(less than 5,000 lb (2270 kg) landed), that the CDFG no longer required 
white abalone to be reported separately on commercial landings 
receipts. Between 1987 and 1992, only 11 white abalone were voluntarily 
reported in commercial landings, and, since 1992, none have been 
reported.
    b. Recreational Fishery Data--California. Data on the recreational 
catch of abalone in California comes from commercial passenger dive 
boats (Hobday and Tegner, 2000a). Between 1971 and 1993, white abalone 
comprised 1.29 percent of the total, and 2.89 percent of the 
``identified,'' recreational abalone catch in California. Most of the 
catch was harvested from Santa Catalina and San Clemente Islands. 
Recreational harvest of white abalone peaked at about 35,000 animals in 
1975, then declined sharply. By 1986, white abalone were rarely 
reported as landed by divers using commercial dive boats. Abalone catch 
from recreational divers not using commercial dive boats has not been 
quantified.
    c. Commercial Fishery Data - Mexico. Data on abalone landings in 
Mexico are limited because species-specific catch data are sparse. 
Before 1984, Mexico did not require commercial abalone fishermen to 
land abalone in the shell, the only identifying characteristic. Prior 
to about 1990, Hobday and Tegner (2000a) found no data on the number or 
weight of white abalone landed in Mexico. Often, available data were 
temporally and spatially inconsistent and contradictory.
    Although white abalone are deep-living and most likely hard to 
find, they were harvested in Mexico prior to 1931 because the tender 
meat attracted a high price (Croker, 1931, p. 69). Historically, white 
abalone comprised only a few percent of the total Baja, California, 
abalone catch. However, in certain cooperatives, white abalone was 
sometimes a significant portion of the abalone catch--in some months 
representing over 50 percent of the total abalone catch (Hobday and 
Tegner, 2000a). For instance, between 1992 and 1994, white abalone 
represented about 65 percent of the catch of one Mexican fishing 
cooperative. Since the total abalone catch for that cooperative was 
57,983 lb (26,301 kg) of meat, that represents a large amount of white 
abalone meat (i.e., 37,689 lb or 17,096 kg). Hobday and Tegner (2000a) 
suggest that this harvest may represent overharvesting of newly located 
reefs, because that harvest rate was not sustained in subsequent years.
    Data from Zone 1 (the northernmost portion of species range in 
Mexico) from 1990 to 1997 indicate that white abalone represented only 
0.73 percent of the total abalone catch (Hobday and Tegner, 2000a). In 
this same zone, no catch trends are evident for any abalone species. 
White abalone were not harvested south of Zone I in Baja, California, 
from 1993 to 1998. Although the data are limited, it appears that in 
those areas, catch-per-unit-effort of abalone declined from 205 to 18 
kg/boat/day (452 to 40 lb) between 1958 and 1984, respectively (Guzman 
del Proo, 1992, as cited in Hobday and Tegner, 2000a). Since 1981, 
total abalone catch has remained near 800-1000 tons, with most abalone 
harvested from Cedros Island. From 1993 to 1998, the price of abalone 
in Mexico has remained constant and is an important source of income 
for the region (Ponce-Diaz et al., 1998, cited in Hobday and Tegner, 
2000a). Based on trends in landings, Mexico's white abalone populations 
may be depleted (Guzman del Proo, 1992), though perhaps not as severely 
as in the United States (Hobday and Tegner, 2000a).
    d. Recreational Fishery-Dependent Data--Mexico. Although there is 
no recreational abalone fishery in Mexico, the gathering of intertidal 
abalone occurs at some level (Hobday and Tegner, 2000a).
    e. Summary of Trends. Survey assessments for white abalone have 
been limited in number and spatially separate (Hobday and Tegner, 
2000a). Because of this and because relatively few white abalone were 
observed, estimates of white abalone density, using fishery-independent 
data collected during the surveys in the 1980's and 1990's are 
imprecise. The current white abalone abundance calculations based on 
these survey data may also be biased due to assumptions about the total 
amount of white abalone habitat currently available (e.g., 3 percent) 
and the amount of area actually surveyed. Nevertheless, data collected 
from the white abalone surveys represent the best available scientific 
information on the species.
    Review of the results from the series of fishery-independent 
abalone surveys in the early 1980s and 1990s indicates that white 
abalone density may have declined by several orders of magnitude in 
California since 1970 (Hobday and Tegner, 2000a). Over the last 30 
years, white abalone abundance has declined from approximately 2.22 to 
4.24 million animals (pre-exploitation) to approximately 1,613 to 2,540 
animals throughout the species range. This decline represents a 
decrease in white abalone abundance of over 99 percent since 
exploitation began in the late 1960s. Review of the commercial landings 
data also indicates a significant decline in white abalone abundance, 
from a peak of 144,000 lbs (65,318 kg) in 1972 to less than 1,000 lbs 
(454 kg) in 1979, after only a decade of commercial exploitation.
    3. Spatial and Temporal Distribution and Effective Population size
    In addition to the absolute number of individuals in a population 
or species, their spatial and temporal distribution is critical for 
successful fertilization, recruitment, and survival of local 
populations. Reproductive failure will occur below a threshold 
population density because surviving individuals are so few and so 
scattered that they cannot find mates. This is commonly referred to as 
the ``Allee Effect'' (Primack, 1993). Individuals that are close enough 
to find mates may still not produce offspring due to other factors such 
as age, poor health, sterility, malnutrition, and small body size 
(Primack, 1993). As a result of these factors, the ``effective 
population size'' of breeding individuals will be substantially smaller 
than the actual population size.
    Even with high adult densities, abalone recruitment is highly 
variable and unpredictable (Davis et al., 1996). Based on results from 
modeling and experiments with sea urchins, Pennington (1985) 
demonstrated that successful fertilization for broadcast spawners 
requires that males and females be close enough for free-swimming sperm 
to contact eggs in sufficient densities. Juvenile abalone

[[Page 26171]]

recruitment severely declines, or ceases in abalone populations that 
are depleted below approximately 50 percent of virgin stock levels 
(Shepherd and Brown, 1993; Richards and Davis, 1993). Price et al. 
(1988) found that, for the Australian abalone species, Haliotis rubra, 
abundance of breeding animals determined recruitment. Thus, despite the 
broadcasting of millions of sperm and eggs and a planktonic larval 
phase, locally reduced adult abalone densities can result in lower 
local recruitment. More recently, Babcock and Keesing (1999) found 
that, for the Australian abalone species, Haliotis laevigata, 
recruitment failure occurred when the mean nearest neighbor distances 
were over 1-2 m (3.3-6.6 ft) or when densities fell below 0.3 animals/
m<SUP>2</SUP>. They also speculate that reductions in abalone densities 
may further reduce reproductive success by limiting the ability to 
synchronize reproductive behavior.
    Because abalone are slow-moving bottom dwellers, their ability to 
aggregate during spawning to overcome even relatively small separations 
is extremely limited. If the current estimate of mean white abalone 
density (e.g., 0.00027 white abalone/m<SUP>2</SUP>) is representative 
throughout most of the range of the species, it is far below that 
necessary to produce gamete concentrations high enough for effective 
fertilization. Based on the current estimated average distance of 
approximately 50 m (164 ft) between white abalone adults, the chance of 
successful fertilization and regular production of viable cohorts of 
juvenile white abalone is extremely low (Davis, 1998).
    The density of white abalone observed during the 1999 submersible 
survey varied from 0 to 9.76 abalone per ha (Hobday and Tegner, 2000b). 
The highest densities were found at Tanner Bank, an offshore area where 
distance, average sea conditions, and navigational challenges may have 
reduced white abalone fishing effort. Of the 157 white abalone found in 
the October 1999 submersible survey, nearly 80 percent were individuals 
(i.e., the nearest neighbor was more than 2 m (6.6 ft) away (Hobday and 
Tegner, 2000b). Twenty percent of the white abalone observed were found 
in ``groups'' of two, and one group of four was found. Although these 
groups have the potential to produce offspring if at least one male and 
one female occurs in each group, it is still likely that the effective 
population size of the species is currently very small (Hobday and 
Tegner, 2000b).
    The size and frequency of empty abalone shells observed during 
surveys can also indicate local population structure and whether 
habitat is suitable for survival. For example, about 20 percent of the 
empty shells near stable red abalone populations, with regular juvenile 
recruitment are juvenile-sized shells (Hines and Pearse, 1982, reported 
in Davis et al., 1996). In contrast, the percentage of juvenile-sized 
empty shells found near a red abalone population on the verge of 
collapse at Santa Rosa Island dropped from 22 percent to 6 percent as 
recruitment and adult densities declined (Tegner et al., 1989; Davis et 
al., 1992, reported in Davis et al., 1996).
    Davis et al. (1996) found that during the 1992-1993 scuba surveys 
for white abalone, most of the empty shells and live individuals were 
probably more than 25 years old (>140 mm or 5.5 inches). All of these 
shells, except one, were adult size (>50 mm or 2 inches) and most were 
between 131 and 180 mm (5 and 7 inches). During the 1996-1997 
submersible white abalone surveys, over 300 empty shells were observed. 
All of these shells appeared to be over 25 years old (Davis, G., pers. 
comm., February 2000). These results indicate that the survey sites 
were previously inhabited by white abalone. Davis et al. (1998) 
concludes that these older abalone represent the last major cohort 
recruited to the population. This cohort would have been spawned in the 
late 1960s or early 1970s and survived because they would have been too 
small to be legally harvested during the peak of the fishery in the 
1970s.
    Although the influence of age on white abalone fertility is 
unknown, if individual age is a factor for reproductive success, the 
effective population size of white abalone may be significantly lower 
than the current estimate of white abalone abundance throughout its 
range. Analysis of the 1999 survey video footage and photographs to 
determine size frequencies of the white abalone observed (live 
individuals and empty shells) has not yet been conducted (Hobday and 
Tegner, 2000b).
    4. Other Natural and Human Influences. See (A), (C), and (E) in 
Summary of Factors Affecting White Abalone.

Summary of Factors Affecting White Abalone

    Section 4(a)(1) of the ESA and the listing regulations (50 CFR part 
424) set forth procedures for listing species. NMFS must determine, 
through the regulatory process, if a species is endangered or 
threatened based upon any one or a combination of the following 
factors: (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range; (B) overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
disease or predation; (D) inadequacy of existing regulatory mechanisms; 
or (E) other natural or human-made factors affecting its continued 
existence. NMFS' contract with SIO included a review of current and 
historical factors affecting white abalone. This review identifies 
overutilization for commercial purposes as the primary reason for the 
decline of white abalone (Hobday and Tegner, 2000a). The following is a 
discussion of the factors used to determine whether white abalone 
should be listed as a threatened or endangered species under the ESA.
    A. Present or Threatened Destruction, Modification, or Curtailment 
of Its Habitat or Range
    Loss or modification of habitat is not likely to have been a factor 
in the decline of white abalone. Hobday and Tegner (2000a) conclude 
that natural or anthropogenic white abalone habitat losses are unknown. 
Due to the isolation of the offshore islands off southern California 
and northern Baja, California, Mexico, and the depth range of the 
species, anthropogenic impacts to white abalone habitat should be 
limited near the islands. The California Department of Fish and Game 
(CDFG) believe, that direct threats to white abalone are limited, 
especially on the islands offshore of southern California, but mainland 
habitat may have been affected to an ``unknown extent'' for a variety 
of unspecified land-based human activities. On the other hand, 
pollution affected shallow water abalone habitat (i.e., Macrocystis 
kelp forests) along the Palos Verdes Peninsula in the 1950s, resulting 
in a decline in certain shallow water abalone populations (Tegner, 
1989; 1993). However, the source of the pollution has been controlled 
and is no longer affecting habitat in that area.
    Long-term or short-term changes in ocean conditions could affect 
both larval and adult abalone (Hobday and Tegner, 2000a). For example, 
periodic El Nino conditions increase surface water temperatures above 
optimum larval survival levels. In addition, due to the periodicity of 
these events, Hobday and Tegner (2000a) suggest the warming events 
would lead to recruitment failure. The influence of some diseases may 
increase during periods of warm water conditions. Warm water has also 
been associated with depleted nutrients in the ocean, declines in 
Macrocystis,

[[Page 26172]]

and the availability of drifting algae material. The direct or indirect 
impacts of increasing water temperatures within the depth range on 
white abalone are unknown. Harvesting of Macrocystis pyrifera has been 
shown to have little effect on shallow-living abalone species (Tegner, 
1989) and could even benefit abalone by providing greater amounts of 
drift algae (Hobday and Tegner, 2000a). For these reasons, habitat loss 
or modification are not likely to have been factors of decline of white 
abalone.
    B. Overutilization for Commercial, Recreational, Scientific or 
Educational Purposes
    White abalone throughout its range have experienced declines in 
abundance as a result of overutilization for commercial and 
recreational purposes. Hobday and Tegner (2000a) suggest that white 
abalone in California were subject to ``serial depletion'' by the 
commercial fishery during the early 1970s. Due to their life history 
characteristics as slow-moving bottom dwellers with external 
fertilization, abalone are particularly susceptible to local and 
subsequent serial depletion. If female abalone are not within a few 
meters of males when they both spawn, the sperm will be too diluted by 
diffusion to fertilize the eggs (Davis et al., 1996). As local abalone 
density declines, the probability of successful fertilization and 
subsequent recruitment, correspondingly decreases. Serial depletion 
occurs as fishermen shift from exploited to unexploited fishing areas 
due to local depletion. Total landings may remain constant in the short 
term. Eventually, however, if all areas are harvested at unsustainable 
levels, recruitment failure occurs on a regionwide basis. The CDFG 
believe that the most significant threat to white abalone is related to 
the effects of low population abundance on continued white abalone 
reproduction, survival and recovery.
    Because white abalone catch data from California were recorded by 
blocks that can be aggregated into regions, data indicate that over 80 
percent of the white abalone landings were taken from San Clemente 
Island. The offshore Tanner Bank and Cortez Bank-Bishop Rock region 
provided 13 percent of the total catch. Notably, between 1965 and 1975, 
over 25 percent (average 43 percent) of the white abalone catch at each 
location came from a single year (Hobday and Tegner, 2000a). If harvest 
was sustainable, the portion of catch harvested each year at each 
location should have been more equitable over many years. In contrast, 
at each location (e.g., island), large harvest was sustained for only a 
few years after previously unexploited white abalone stocks were 
depleted (see Table 8 in Hobday and Tegner, 2000a). After only 3 years 
of commercial exploitation, regionwide landings of white abalone peaked 
at 144,000 lb (65,318 kg) in 1972, declining to less than 10,000 lb 
(4,535 kg) in 1977. White abalone landings were so negligible by 1978 
(1,000 lb or 454 kg), that CDFG no longer collected landings data for 
the species.
    Hobday and Tegner (2000a) suggest that the increasing value of 
abalone may have contributed to increased fishing pressure. For 
example, the price of white abalone increased from about $2.50 per 
pound in 1981 to about $7 per pound in 1993. As the catch of all 
abalone declined, the total and per-unit value of the harvest continued 
to increase. White abalone was usually the most valuable species and by 
1988, white abalone was worth twice the value of other abalone species 
(Davis et al., 1996).
    C. Disease or Predation
    First detected in 1985, withering syndrome disease has 
significantly affected west coast abalone species, especially the black 
abalone. Withering syndrome also occurs in pink, red, and green abalone 
(Alstatt et al., 1996, cited in Hobday and Tegner, 2000a). Withering 
syndrome has recently been identified as a ricksettia bacterium that 
affects the digestive glands of abalone. Surveys of black abalone 
suffering from withering syndrome found large numbers of empty black 
abalone shells. Hobday and Tegner (2000a) suggest, that if white 
abalone were significantly affected by withering syndrome, large 
numbers of empty white abalone shells should have been detected during 
the abalone surveys of the 1980s.
    In 1990, 20 freshly dead white abalone, which could have been 
killed by withering syndrome, with undamaged shells were collected from 
Santa Catalina (Tegner et al., 1996). In 1993, two live white abalone 
were collected from Santa Catalina Island and diagnosed with withering 
syndrome. A white abalone in captivity recently died and showed 
symptoms of withering syndrome. Although white abalone appear to be 
susceptible to withering syndrome, it is not likely to have been a 
major factor in the decline of white abalone.
    Several abalone predators have been documented, including sea 
stars, fish, crabs, octopuses, and sea otters (Hobday and Tegner, 
2000a). Although increases in abundance of these predators could be 
related to declines in white abalone abundance, no information is 
available on the density of the invertebrate predators in white abalone 
habitat. Due to the depth range and latitudinal distribution of white 
abalone, predation by sea otters is not likely to have been a factor in 
the decline of white abalone abundance. The CDFG believes that factors 
such as disease or predation may have contributed to the decline of 
white abalone but are not currently a major factor affecting the 
species' continued existence.
    D. The Inadequacy of Existing Regulatory Mechanisms
    Because white abalone throughout their range have experienced 
declines in abundance as a result of overutilization for commercial 
purposes, fishing regulations for white abalone during the major period 
of its decline in the 1970s were inadequate to regulate harvest of 
white abalone at sustainable levels.
    The establishment of minimum size limits has been a strategy used 
worldwide to manage the harvest of abalone on a sustainable basis 
(Hobday and Tegner, 2000a). Managers expected this restriction would 
allow individual abalone a chance to reproduce and contribute to the 
population before possible removal from the population by harvest. In 
California, minimum size limits for abalone were greater than the size 
of sexual maturity and could have allowed for several years of 
reproduction before the animals reached legal harvest size. However, 
successful reproduction does not necessarily occur each year. If 
reproductive failure occurs for several years, abalone could reach 
legal size and be removed by the fishery before they have successfully 
reproduced and contributed offspring to the population. California also 
prohibited abalone fishing during the spawning season. Other 
regulations, such as bag limits for recreational fishermen, and limited 
entry, were also instituted by California as abalone management 
measures.
    In 1970, California established a permit fee of $100 for both 
divers and crew members (Burge et al., 1975; cited in Hobday and 
Tegner, 2000a). The diver fee increased to $200 in 1975 and finally 
reached $330 in 1991. Relative to permit fees charged by other 
countries to harvest abalone which approach $1 million per permit 
(e.g., Tasmania, South Australia), these relatively low fees did not 
promote sustainable abalone fishing in California.
    California's abalone management did not prevent serial depletion of 
white abalone or promote sustainable harvest practices in the 1970s. In 
1996, the California Fish and Game Commission closed the California 
white abalone fishery to protect the surviving adults (Davis et al., 
1998). At this time, NMFS does not have documentation that

[[Page 26173]]

Mexico has closed its commercial white abalone fishery or limited white 
abalone fishing.
    Intentional capture of sub-legal abalone before they contributed 
substantially to the population could have reduced the reproductive 
potential of white abalone (Hobday and Tegner, 2000a). However, since 
the State of California has required all commercially caught abalone to 
be landed in the shell, poaching is not likely to have been a major 
factor for the decline of white abalone. In Mexico, during a survey in 
1973, a substantial portion of the commercial white abalone catch was 
found to be undersized. The impact of illegal white abalone harvesting 
as a factor of the species' decline is difficult to evaluate in Mexico, 
but was probably not a major factor in California. Because abalone has 
no blood clotting ability, cut animals bleed to death (Cox, 1962, cited 
in Hobday and Tegner, 2000a). Burge et al. (1975) found that accidental 
cutting of sub-legal sized abalone is a significant cause of mortality 
and could have further reduced white abalone abundance (Hobday and 
Tegner, 2000a). For example, mortality due to cutting during collection 
of sub-legal red abalone was estimated at 60 percent from small cuts in 
the lab, and almost 100 percent in the field. Even undersized abalone 
that are handled and replaced without being cut suffer a 2 to 10-
percent mortality in the field. Under-sized abalone may also be subject 
to predation before they have a chance to reattach to the substrate.
    E. Other Natural or Manmade Factors Affecting Their Continued 
Existence
    Competition from sea urchins and other abalone species for food and 
space could have been a factor in the decline of white abalone. For 
instance, increasing trends in abundance of sea urchins 
(Strongylocentrotus purpuratus and S. franciscanus) could have limited 
the amount of algae available for juvenile or adult white abalone 
consumption (Hobday and Tegner, 2000a). Although these potential 
ecological interactions have not been studied in the field, the 
densities of these potential competitors are also currently low and are 
no longer likely to limit white abalone abundance (Hobday and Tegner, 
2000a).
    Hybridization of white abalone with other more abundant California 
abalone species could potentially lower white abalone population size 
(Hobday and Tegner, 2000a). Natural hybridization between other 
California abalone species and white abalone has been observed. Owen et 
al. (1971) found that disturbance, high sea urchin frequency, and low 
abundance of one parent species increased the frequency of abalone 
hybrids. However, because large numbers of white abalone hybrids have 
not been found in the field, Hobday and Tegner (2000a) conclude that 
hybridization of white abalone with other abalone species is unlikely 
to have led to a decline of the species.

Efforts Being Made to Protect White Abalone

    Section 4(b)(1)(A) of the ESA requires the Secretary of Commerce to 
make listing determinations solely on the basis of the best scientific 
and commercial data available and after taking into account efforts 
being made by any state or foreign nation to protect a species, by 
predator control, protection of habitat and food supply, or by other 
conservation practices. In making this listing determination, 
therefore, NMFS must consider white abalone status and the factors that 
have lead to its decline, as well as state or foreign conservation 
efforts that may ameliorate the risks faced by the white abalone.
    In judging the efficacy of state or foreign conservation efforts, 
NMFS considers the following: (1) The substantive, protective, and 
conservation elements of such efforts; (2) the degree of certainty that 
such efforts will be reliably implemented; and (3) the presence of 
monitoring provisions that determine effectiveness and that permit 
adaptive management (NMFS, 1996b). In some cases, conservation efforts 
may be relatively new and may not have had time to demonstrate their 
biological benefit. In such cases, provisions for adequate monitoring 
and funding of conservation efforts are essential to ensure intended 
conservation benefits are realized.

State of California Conservation Measures for White Abalone

    The CDFG has collected fishery-independent data on white abalone 
for many years and has conducted and participated in the scuba and 
submersible surveys conducted in 1980/1981, 1992/1993, 1996/1997, and 
1999. The data and information gathered during these studies have 
contributed to a better understanding of the decline of white abalone. 
Because the State required that abalone fishermen submit landings data, 
the precipitous decline of white abalone in the 1970s has been 
documented. As mentioned previously, the State closed white abalone 
fishing in 1996, thereby removing a significant factor for decline. The 
closure of all abalone fisheries in southern California in 1997 has 
also reduced the likelihood of accidental harvest or poaching of white 
abalone in California. Despite these State conservation measures, 
however, the species may not survive without human intervention because 
most of the remaining individuals are too far apart to successfully 
reproduce. To date, the State of California has not listed white 
abalone under the State's Endangered Species Act.

Mexican Conservation Measures for White Abalone

    At this time, NMFS does not know whether Mexico has closed its 
white abalone fishery or instituted other conservation measures to 
protect the species. NMFS contracted out the status review to SIO to 
gather data on white abalone landings and status of white abalone in 
Mexico, but conservation measures were not part of this contract. The 
U.S. Government has not contacted Mexico yet with regard to 
conservation measures. Under 50 CFR 424.16, insofar as practical and in 
cooperation with the Secretary of State, NMFS must give notice of any 
proposed regulation to list a species to each foreign nation in which 
the species is believed to occur and invite the comment of such nation. 
After NMFS solicits and receives comments from Mexico, it should have a 
better understanding of the conservation measures Mexico has 
implemented to protect white abalone.

Private-Public Partnerships

    Due to concern over the depleted status of white abalone, a 
consortium of scientists, fishermen, conservation organizations, 
universities, Federal and state agencies, and mariculturists in private 
enterprise have joined together to develop and execute a plan to 
restore white abalone populations (Davis et al., 1998). The White 
Abalone Restoration Consortium (Consortium) has developed the following 
four-step restoration plan: (1) Locate surviving white abalone by 
surveying historical habitat; (2) collect brood stock; (3) breed and 
rear a new generation of brood stock; and (4) re-establish refugia of 
self-sustaining brood stocks in the wild. The Consortium has also 
initiated an outreach program to raise public awareness of the status 
of white abalone and restoration efforts. Particularly challenging is 
the ability to increase public awareness of a relatively small and 
unknown marine invertebrate. Because nearly 25 years of artificially 
producing and outplanting juvenile and younger red abalone in 
California have failed to demonstrate effective population restoration, 
the Consortium is advocating that captive-born white abalone be reared 
until 4 years of age (>100 mm or 4 inches). Federal, state, and private 
grants and

[[Page 26174]]

funds have recently supported white abalone submersible surveys and the 
establishment of an aquaculture facility specifically designed to breed 
white abalone in captivity and rear offspring to adulthood for 
outplanting to the wild.
    While NMFS recognizes that many of the existing conservation 
measures are likely to protect the remaining white abalone survivors, 
in the aggregate, they do not yet provide for white abalone 
conservation at a scale that is adequate to protect and recover the 
species. Due to the extremely low population abundance of white abalone 
throughout its range, NMFS believes that the existing protective 
measures alone will not be sufficient to reduce the risk of white 
abalone extinction in the near future.

Proposed Determination

    The ESA defines an endangered species as any species in danger of 
extinction throughout all or a significant portion of its range, and a 
threatened species as any species likely to become an endangered 
species within the foreseeable future throughout all or a significant 
portion of its range (16 U.S.C. 1532(6) and (20)). Section 4(b)(1) of 
the ESA requires that the listing determination be based solely on the 
best scientific and commercial data available, after conducting a 
review of the status of the species and after taking into account those 
efforts, if any, being made by any state or foreign nation to protect 
and conserve the species.
    Review of white abalone landings data and analysis of fishery-
independent data indicate that over the last 30 years, white abalone 
abundance has declined by over 99 percent and several orders of 
magnitude. Most of the remaining survivors are old and so scattered 
that they will not be able to find mates to spawn successfully and 
regularly produce viable cohorts of juveniles. While NMFS recognizes 
that many of the existing conservation measures are likely to protect 
the remaining white abalone, in the aggregate, they do not yet provide 
for white abalone conservation at a scale that is adequate to protect 
and recover the species.
    Based on results from the white abalone status review, information 
received in the petition to list white abalone as an endangered 
species, and other published and unpublished information, NMFS has 
determined that white abalone are in danger of extinction throughout 
all or a significant portion of their range. Therefore, NMFS proposes 
to list white abalone as an endangered species.
    During the period between publication of this proposed rule and 
publication of a final rule, NMFS will continue to solicit information 
regarding existing protective efforts including those by Mexico (see 
Public Comments Solicited). NMFS will also work with Federal and state 
fisheries managers to evaluate and enhance the efficacy of the various 
white abalone conservation efforts.

Conservation Measures

    Conservation measures that may apply to listed species include 
conservation measures implemented by tribes, states, foreign nations, 
local governments, and private organizations. Also, Federal, tribal, 
state, and foreign nations' recovery actions, Federal consultation 
requirements, and prohibitions on taking constitute conservation 
measures. In addition, recognition through Federal government or state 
listing promotes public awareness and conservation actions by Federal, 
state, tribal governments, foreign nations, private organizations, and 
individuals.
    Based on information presented in the proposed rule, general 
protective and conservation measures that could be implemented to help 
conserve white abalone are listed as follows. This list does not 
constitute NMFS' interpretation of a recovery plan under section 4(f) 
of the ESA:
    1. Continue the State prohibition on commercial and recreational 
white abalone fishing in California.
    2. Locate white abalone in California and Mexico by surveying 
historic habitat.
    3. Collect white abalone brood stock, spawn the brood stock, rear 
the offspring to early adulthood, and outplant the next generation in 
the wild.
    4. Collect and aggregate adult white abalone in the wild to 
facilitate successful reproduction in the field.
    5. Establish protected zones to serve as refugia for captive-bred 
offspring and aggregated adult white abalone.
    6. Promote protection and conservation of white abalone in Mexico.

Prohibitions and Protective Measures

    Section 9 of the ESA prohibits certain activities that directly or 
indirectly affect endangered species. These prohibitions apply to all 
individuals, organizations and agencies subject to U.S. jurisdiction. 
Section 9 prohibitions apply automatically to endangered species.
    Sections 7(a)(2) and (4) of the ESA require Federal agencies to 
consult with NMFS to ensure that activities they authorize, fund, or 
conduct are not likely to jeopardize the continued existence of a 
listed species or a species proposed for listing, or to adversely 
modify critical habitat or proposed critical habitat. If a Federal 
action may affect a listed species or its critical habitat, the 
responsible Federal agency must enter into consultation with NMFS.
    Examples of Federal actions that may affect white abalone include 
coastal development, oil and gas development, outfall construction and 
operation, and power plant permitting.
    Sections 10(a)(1)(A) and (B) of the ESA provide NMFS with authority 
to grant exceptions to the ESA's Section 9 ``take'' prohibitions. 
Section 10(a)(1)(A) scientific research and enhancement permits may be 
issued to entities (Federal and non-Federal) for scientific purposes or 
to enhance the propagation or survival of a listed species. The type of 
activities potentially requiring a section 10(a)(1)(A) research/
enhancement permit include scientific research that targets white 
abalone; collection of adult white abalone for artificial propagation 
purposes and aggregation or relocation of white abalone to enhance the 
potential of natural propagation in the wild.
    Section 10(a)(1)(B) incidental take permits may be issued to non-
Federal entities performing activities that may incidentally take 
listed species, as long as the taking is incidental to, and not the 
purpose of, the carrying out of an otherwise lawful activity. The types 
of activities potentially requiring a section 10(a)(1)(B) incidental 
take permit include scientific research, not targeting white abalone, 
that incidentally takes white abalone, and the operation of power 
plants in a manner that incidentally takes white abalone.

NMFS Policies on Endangered and Threatened Wildlife

    On July 1, 1994, NMFS, jointly with the U.S. Fish and Wildlife 
Service (FWS), published a series of policies regarding listings under 
the ESA, including a policy for peer review of scientific data (59 FR 
34270) and a policy to identify, to the maximum extent possible, those 
activities that would or would not constitute a violation of section 9 
of the ESA.

Role of Peer Review

    Before adopting the status review prepared under contract by SIO, 
NMFS submitted the review for peer review. NMFS shares a joint policy 
with FWS regarding the role of peer review of proposed listing 
determinations. The intent of the peer review policy is to

[[Page 26175]]

ensure that listings are based on the best scientific and commercial 
data available. Prior to a final listing, NMFS will solicit the expert 
opinions of at least three qualified specialists, concurrent with the 
public comment period. Independent peer reviewers will be selected from 
the academic and scientific community, Federal and state agencies, and 
the private sector.

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

    NMFS and the FWS published in the Federal Register on July 1, 1994, 
(59 FR 34272), a policy that NMFS shall 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 
intent of this policy is to increase public awareness of the effect of 
this listing on proposed and ongoing activities within the species' 
range. If this rule is finalized, at that time NMFS will identify to 
the extent known, specific activities that will not be considered 
likely to result in violations of section 9, and activities that will 
be considered likely to result in violations. NMFS believes, based on 
the best available information, the following actions will not result 
in a violation of section 9:
    1. Possession of white abalone which are acquired lawfully by 
permit issued by NMFS, pursuant to section 10 of the ESA, or by the 
terms of an incidental take statement, pursuant to section 7 of the 
ESA.
    2. Federally funded or approved projects for which section 7 
consultation has been completed, and when activities are conducted in 
accordance with any terms and conditions provided by NMFS in an 
incidental take statement accompanying a biological opinion.
    Activities that NMFS believes could potentially harm white abalone, 
and result in a violation of section 9 take prohibition include, but 
are not limited to:
    1. Coastal development that adversely affects white abalone (e.g., 
dredging, oil and gas development).
    2. Destruction/alteration of white abalone habitat, such as the 
harvesting of algae.
    3. Discharges or dumping of toxic chemicals or other pollutants 
(e.g., sewage, oil, gasoline) into areas supporting white abalone.
    4. Interstate and foreign commerce of white abalone and import/
export of white abalone without a permit.
    5. Collecting or handling of white abalone in the United States. 
Permits to conduct these activities are available for purposes of 
scientific research or to enhance the propagation or survival of the 
species.
    These lists are not exhaustive. They are intended to provide some 
examples of the types of activities that might or might not be 
considered by NMFS as constituting a take of white abalone under the 
ESA and its regulations. Questions regarding whether specific 
activities will constitute a violation of the ESA section 9 take 
prohibitions and general inquiries regarding prohibitions and permits 
should be directed to NMFS (see ADDRESSES).

Critical Habitat

    Section 4(a)(3)(A) of the ESA requires that, to the maximum extent 
prudent and determinable, NMFS designate critical habitat concurrently 
with a determination that a species is endangered or threatened. While 
NMFS has completed its initial analysis of the biological status of 
white abalone, it has not performed the full analysis necessary for 
proposing a designation of critical habitat at this time. NMFS intends 
to develop a critical habitat proposal for white abalone within the 
next year, as soon as the analysis can be completed.

Public Comments Solicited

    NMFS exercised its best professional judgement in developing this 
proposal to list white abalone. To ensure that the final action 
resulting from this proposal will be as accurate and effective as 
possible, NMFS is soliciting comments and suggestions from the public, 
other governmental agencies, the Government of Mexico, the scientific 
community, industry, and any other interested parties. NMFS is 
interested in any additional information concerning (1) biological or 
other relevant data concerning any threats to white abalone; (2) the 
range, distribution, and abundance of white abalone; (3) current or 
planned activities within the range of white abalone and their possible 
impact on white abalone; and (4) efforts being made to protect white 
abalone.
    NMFS will review all public comments and any additional information 
regarding the status of white abalone and will complete a final 
determination within one year of publication of this proposed rule, as 
required under the ESA. The availability of new information may cause 
NMFS to reassess the status of white abalone.
    Joint Commerce-Interior ESA implementing regulations state that the 
Secretary ``shall promptly hold at least one public hearing if any 
person so requests within 45 days of publication of a proposed 
regulation to list ...or to designate or revise critical habitat.'' 
(see 50 CFR 424.16(c)(3)). If a public hearing is requested, it would 
provide an opportunity for the public to give comments and to permit an 
exchange of information and opinion among interested parties. NMFS 
encourages the public's involvement in such ESA matters. Written 
comments on the proposed rule should be submitted to NMFS (see 
ADDRESSES).

References

    A complete list of all cited references is available upon request 
(see ADDRESSES).

Classification

National Environmental Policy Act

    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, 675 F. 2d825 
(6<SUP>th</SUP> Cir. 1981), NMFS has concluded that ESA listing actions 
are not subject to the environmental assessment requirements of the 
National Environmental Policy Act (NEPA). (See NOAA Administrative 
Order 216-6.)

Executive Order 12866, Regulatory Flexibility Act and Paperwork 
Reduction Act

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

Executive Order 13132--Federalism

    In keeping with the intent of the Administration and Congress to 
provide continuing and meaningful dialogue on issues of mutual State 
and Federal interest, NMFS has conferred with the State of California 
in the course of assessing the status of white abalone, and considered, 
among other things, state and local conservation measures. California 
has expressed support for the conservation of white abalone. The 
content of this dialogue with the State of California as well as the 
basis for this proposed action, is described in the SUPPLEMENTARY 
INFORMATION section of this document. As the process continues, NMFS 
intends to continue

[[Page 26176]]

engaging in informal and formal contacts with California, and other 
affected local or regional entities, giving careful consideration to 
all written and oral comments received. NMFS also intends to consult 
with appropriate elected officials in the establishment of a final 
rule.

Critical Habitat

    At this time, NMFS is not proposing to designate critical habitat 
for white abalone pursuant to ESA section 4(b)(2). Prior to proposing 
to designate critical habitat for white abalone, NMFS will comply with 
all relevant RFA requirements.

List of Subjects in 50 CFR Part 224

    Endangered and threatened wildlife, Exports, Imports, Marine 
Mammals, Transportation.

    Dated: May 1, 2000.
Andrew A. Rosenberg,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR part 224 is 
proposed to be amended as follows:

PART 224--ENDANGERED MARINE AND ANADROMOUS SPECIES

    1. The authority citation of part 224 continues to read as follows:

    Authority: 16 U.S.C. 1531-1543 and 16 U.S.C. 1361 et seq.

    2. In Sec. 224.101, paragraph (d) is added to read as follows:


Sec. 224.101  Enumeration of endangered marine and anadromous species.

* * * * *
    (d) Marine invertebrates. White abalone (Haliotis sorenseni).

[FR Doc. 00-11285 Filed 5-4-00; 8:45 am]
BILLING CODE 3510-22-F


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