Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Proposed Rules 26167

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Background

Structure of Washington Hearing

Speakers must limit their oral

presentations to no more than 10

minutes duration. Presenters may

submit additional written

documentation to be placed in the

public docket.

The public hearing will be subdivided

and the FMCSA will seek comments on

specific topics during the prescribed

time period, as follows:

Day One

1. Opening remarks—8:30 a.m.

2. Supportive science—8:45 a.m. to 3

p.m., with general comments about

any subject from 3:15 to 4:30 p.m.

Day Two

3. Daily cycle (18, 24, other) and weekly

cycle (7-day, 168-hour, other)—8:30

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4. Minimum rest period to recover from

cumulative multi-day fatigue—

10:45 a.m. to noon.

5. Work-rest requirements for various

types of operations—1 to 2 p.m.

6. Information collection methods and

requirements, including electronic

on-board recorders and Department

of Labor time records—2 to 3 p.m.

7. General comments—3:15 to 4:30 p.m.

Washington Participants

All persons who would like to present

comments must notify Mr. Stan

Hamilton by telephone at (202) 366–

0665 by 4 p.m. e.t., no later than May

26, 2000. All persons attending will be

subject to Federal and DOT workplace

security measures. All persons will need

photo identification and must display

the identification to DOT security

officers. All persons will be required to

sign in at the guard’s desk, walk through

metal detectors, and be subject to

random search. All visitors will be

required to wear a ‘‘Visitor’’ tag at all

times while in the building. Persons

failing to satisfy security requirements

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opportunity to participate in the

hearing. Such persons may, however,

submit their written comments by the

close of business on July 31, 2000, to the

Docket Clerk, U.S. DOT Dockets, Room

PL–401, 400 Seventh Street, SW.,

Washington, DC 20950–0001.

Authority: 49 U.S.C. 322, 31502, and

31136; and 49 CFR 1.73.

Issued on: May 2, 2000.

Brian M. McLaughlin,

Director, Office of Policy Plans and

Regulations.

[FR Doc. 00–11334 Filed 5–4–00; 8:45 am]

BILLING CODE 4910–22–P

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.

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

whiteab.info@noaa.gov.

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

26168 Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Proposed Rules

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 overharvesting 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 oC (59oF) (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

Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Proposed Rules 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 fisheryindependent 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/m2, Hobday and

Tegner (2000a) estimated a preexploitation abundance of 2,221,800

animals. Alternatively, Hobday and

Tegner (2000a) calculated another preexploitation 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 fisherydependent 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 preexploitation 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 preexploitation 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 m2 (829,601 ft2) 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/m2, 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/m2 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

26170 Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Proposed Rules

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 deepliving 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 (PonceDiaz 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 freeswimming sperm to contact eggs in

sufficient densities. Juvenile abalone

Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Proposed Rules 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/m2.

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/m2) 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,

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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 slowmoving 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

Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Proposed Rules 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 fisheryindependent 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) reestablish 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 captiveborn white abalone be reared until 4

years of age (>100 mm or 4 inches).

Federal, state, and private grants and

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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 fisheryindependent 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

Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Proposed Rules 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 (6th 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

26176 Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Proposed Rules

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 § 224.101, paragraph (d) is added

to read as follows:

§ 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