Federal Register / Vol. 74, No. 9 / Wednesday, January 14, 2009 / Rules and Regulations 1937 

* * * * * 

[FR Doc. E9–119 Filed 1–13–09; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 2, 22, and 52 

[FAC 2005–29, Amendment–1; FAR Case 

2007–013; Docket 2008–0001; Sequence 2] 

RIN 9000–AK91 

Federal Acquisition Regulation; FAR 

Case 2007–013, Employment Eligibility 

Verification 

AGENCIES: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA). 

ACTION: Final rule; delay of effective and 

applicability dates. 

SUMMARY: The Department of Defense, 

General Services Administration, and 

National Aeronautics and Space 

Administration have agreed to delay the 

effective and applicability dates of FAR 

Case 2007–013, Employment Eligibility 

Verification, to January 19, 2009, and 

February 20, 2009, respectively. 

DATES: Effective Date: The effective date 

of FAC 2005–29, the final rule 

amending 48 CFR Parts 2, 22, and 52, 

published in the Federal Register on 

November 14, 2008, at 73 FR 67650, is 

delayed January 15, 2009, until January 

19, 2009. 

Applicability Date: The applicability 

date of FAC 2005–29 is delayed until 

February 20, 2009. 

Contracting officers shall not include 

the new clause at 52.222–54, 

Employment Eligibility Verification, in 

any solicitation or contract prior to the 

applicability date of February 20, 2009. 

On or after February 20, 2009, 

contracting officers— 

• Shall include the clause in 

solicitations in accordance with the 

clause prescription at 22.1803; and 

• Should modify, on a bilateral basis, 

existing indefinite-delivery/indefinitequantity contracts in accordance with 

FAR 1.108(d)(3) to include the clause 

for future orders if the remaining period 

of performance extends beyond August 

20, 2009, and the amount of work or 

number of orders expected under the 

remaining performance period is 

substantial. 

FOR FURTHER INFORMATION CONTACT: The 

FAR Secretariat at (202) 501–4755 for 

further information pertaining to status 

or publication schedule. Please cite FAC 

2005–29 (delay of effective and 

applicability dates). 

SUPPLEMENTARY INFORMATION: This 

document extends to January 19, 2009, 

the effective date of the E-Verify rule, in 

order to comply with the Congressional 

Review Act (5 U.S.C. 801(a)(3)(A)). 

Although this rule was published in the 

Federal Register on November 14, 2008 

(73 FR 67650), it was not received by 

Congress until November 19, 2008. 

Because of pending litigation, the 

applicability date for the regulation is 

being extended until February 20, 2009. 

Federal Acquisition Circular 

Federal Acquisition Circular (FAC) 

2005–29, Amendment-1, is issued under 

the authority of the Secretary of 

Defense, the Administrator of General 

Services, and the Administrator for the 

National Aeronautics and Space 

Administration. 

The Federal Acquisition Regulation 

(FAR) contained in FAC 2005–29 is 

effective January 19, 2009, and 

applicable February 20, 2009. 

Dated: January 9, 2009. 

Linda W. Neilson, 

Acting Deputy Director, Defense Procurement 

(Defense Acquisition Regulations System). 

Dated: January 9, 2009. 

David A. Drabkin, 

Senior Procurement Executive & Deputy Chief 

Acquisition Officer, U.S. General Services 

Administration. 

Dated: January 9, 2009. 

William P. McNally, 

Assistant Administrator for Procurement, 

National Aeronautics and Space 

Administration. 

[FR Doc. E9–651 Filed 1–13–09; 8:45 am] 

BILLING CODE 6820–EP–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 224 

[Docket No. 071128765–81658–02] 

RIN 0648–AW32 

Endangered and Threatened Wildlife 

and Plants; Endangered Status for 

Black Abalone 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: Following completion of an 

Endangered Species Act (ESA) status 

review for black abalone (Haliotis 

cracherodii), we, NOAA’s National 

Marine Fisheries Service (NMFS), 

published a proposed rule to list black 

abalone as endangered on January 11, 

2008. After considering public 

comments on the proposed rule, we 

issue this final rule to list black abalone 

as endangered under the ESA. We also 

solicit information relevant to the 

designation of critical habitat for black 

abalone. 

DATES: Effective February 13, 2009. 

ADDRESSES: You may submit 

information by any of the following 

methods: 

• Federal Rulemaking Portal: 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Fax: 1–562–980–4027, Attention: 

Melissa Neuman. 

• Mail: Submit written information to 

Chief, Protected Resources Division, 

Southwest Region, National Marine 

Fisheries Service, 501 West Ocean 

Blvd., Suite 4200, Long Beach, CA 

90802–4213. 

Reference materials regarding this 

determination can be obtained via the 

Internet at: http:// 

www.swr.nmfs.noaa.gov (go to ‘‘Latest 

News’’/‘‘News Archives’’/January 2008). 

A request may also be submitted to the 

Assistant Regional Administrator, 

Protected Resources Division, 

Southwest Region, NMFS, 501 West 

Ocean Blvd., Suite 4200, Long Beach, 

CA 90802–4213. 

FOR FURTHER INFORMATION CONTACT: 

Melissa Neuman, NMFS, Southwest 

Region (562) 980–4115; or Lisa 

Manning, NMFS, Office of Protected 

Resources (301) 713–1401. 

SUPPLEMENTARY INFORMATION: 

Background 

Black abalone was added to the 

National Marine Fisheries Service’s 

(NMFS’) Candidate Species List on June 

23, 1999 (64 FR 33466), and transferred 

to the NMFS’ Species of Concern List on 

April 15, 2004 (69 FR 19975). We 

initiated an informal ESA status review 

of black abalone on July 15, 2003, and 

formally announced initiation of a 

status review on October 17, 2006 (71 

FR 61021), at the same time soliciting 

information from the public on the 

status of and threats facing black 

abalone. On December 27, 2006, we 

received a petition from the Center for 

Biological Diversity (CBD) to list black 

abalone as either an endangered or 

threatened species under the ESA and to 

designate critical habitat for the species 

concurrently with any listing 


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determination. We published a 90–day 

finding on April 13, 2007 (72 FR 18616), 

stating that the CBD petition presented 

substantial scientific information 

indicating that the petitioned actions 

may be warranted. 

In June 2007, we assembled a Status 

Review Team (SRT) to review the 

available information, assess the 

extinction risk and threats facing the 

species, and produce an ESA status 

review report for black abalone. The 

status review report (VanBlaricom et al., 

2007) provides a thorough account of 

black abalone biology and natural 

history, and assesses demographic risks, 

threats and limiting factors, and overall 

extinction risk. 

The NMFS Southwest Region 

initiated a technical peer review of the 

draft status review report on January 9, 

2008. A proposal to list black abalone as 

endangered, a solicitation for public 

comment on the proposed rule, and 

solicitation for additional information 

regarding black abalone status and 

habitat needs were published in the 

Federal Register on January 11, 2008 

(73 FR 1986). Technical comments 

received from reviewers and public 

comments received on or before April 

10, 2008, are addressed in the final 

status review report and this rule. 

Biology and Life History of Black 

Abalone 

A thorough account of black abalone 

biology and life history may be found in 

the status review report (VanBlaricom et 

al., 2008) and in the proposed rule to 

list black abalone as endangered under 

the ESA (73 FR 1986; January 11, 2008). 

Statutory Framework for ESA Listing 

Determinations 

Section 4 of the ESA (16 U.S.C. 1533) 

and implementing regulations (50 CFR 

part 424) set forth the procedures for 

adding species to the Federal list of 

threatened and endangered species. 

Section 4 requires that listing 

determinations be based solely on the 

best scientific and commercial data 

available, without consideration of 

possible economic or other impacts of 

such determinations, after conducting a 

status review of the species and 

considering conservation efforts being 

made to protect the species. After 

assessing a species’ level of extinction 

risk and identifying factors, listed in 

section 4(a)(1), that have led to its 

decline, we assess efforts being made to 

protect the species to determine if those 

measures ameliorate the risks faced by 

the species. In judging the efficacy of 

existing protective efforts, we rely on 

the joint NMFS/U.S. Fish and Wildlife 

Service ‘‘Policy for Evaluation of 

Conservation Efforts When Making 

Listing Decisions’’ (‘‘PECE;’’ 68 FR 

15100; March 28, 2003). 

Summary of Comments Received in 

Response to the Proposed Rule 

A joint NMFS/U.S. Fish and Wildlife 

Service policy requires us to solicit 

independent expert review from at least 

three qualified specialists (59 FR 34270; 

July 1, 1994). The Office of Management 

and Budget (OMB) Information Quality 

Bulletin for Peer Review (December 

2004) further establishes minimum peer 

review standards, a transparent process 

for public disclosure of peer review 

planning, and opportunities for public 

participation. The OMB Bulletin, 

implemented under the Information 

Quality Act (Public Law 106–554), is 

intended to enhance the quality and 

credibility of the Federal Government’s 

scientific information and applies to 

influential or highly influential 

scientific information disseminated on 

or after June 16, 2005. Pursuant to our 

1994 policy and the OMB Bulletin, we 

solicited the expert opinions of ten 

appropriate and independent specialists 

regarding pertinent scientific or 

commercial data and assumptions 

relating to the taxonomic, genetic, 

biological and ecological information 

supporting the proposal to list black 

abalone. We conclude that these expert 

reviews satisfy the requirements for 

’’adequate peer review’’ under the OMB 

Bulletin and the requirements of the 

joint 1994 peer review policy. All of the 

independent experts found that the 

scientific information supported listing 

of black abalone as an endangered 

species. 

No public hearings were requested 

during the 90–day public comment 

period on the proposed rule to list the 

black abalone as an endangered species, 

and no hearings were held. During the 

public comment period, however, we 

received seven written comments on the 

proposed rule: three from private 

citizens, three from non-governmental 

organizations, and one from a local 

government agency. Of the seven 

comments we received, four clearly 

stated their support for listing black 

abalone as an endangered species. Other 

commenters felt that the protections 

provided to black abalone from an ESA 

listing, namely habitat protection and 

protection from harvesting, would not 

benefit the species and that more 

emphasis needs to be placed on the 

treatment of withering syndrome, a fatal 

abalone disease. One commenter 

expressed concern over the 

methodology used to estimate the risk of 

black abalone extinction within the next 

30 years and suggested that the risk 

analysis be reviewed by epidemiologists 

with expertise in the spread of and 

resistance to infectious diseases. A 

summary of the comments and the 

responses thereto are presented here. 

Comment 1: Several commenters 

indicated that listing black abalone as 

endangered is not enough to ensure 

survival of the species and questioned 

how active management will halt the 

progression of withering syndrome. 

Response: The final listing of black 

abalone as endangered under the ESA 

offers protection to the species by 

prohibiting all of the activities outlined 

in section 9 of the ESA (e.g., 

importation, exportation, take, 

possession, sale, and delivery) that 

directly or indirectly affect endangered 

species. These prohibitions apply to all 

individuals, organizations, and agencies 

subject to U.S. jurisdiction. Section 

7(a)(2) of the ESA requires Federal 

agencies to consult with NMFS to 

ensure that activities they authorize, 

fund, or carry out are not likely to 

jeopardize the continued existence of a 

listed species or destroy or adversely 

modify critical habitat. 

We acknowledge that managing the 

threat of withering syndrome will be 

difficult, especially because the etiology 

of the pathogen that causes the disease 

is unknown. However, the ESA requires 

that we evaluate all of the threats that 

a species faces and base our listing 

determination on that evaluation. 

Individual threats will be addressed in 

a recovery plan and through a critical 

habitat designation, both of which will 

be developed subsequent to this final 

rule. The recovery plan and subsequent 

rulemaking to designate critical habitat 

will incorporate the best available 

scientific information on methods to 

minimize the threat of withering 

syndrome in areas that have been 

exposed to it and halt further 

progression of the disease to areas that 

remain unaffected. 

Comment 2: Several commenters 

urged NMFS to initiate a multi-step 

recovery plan. It was suggested that a 

large part of the recovery process needs 

to be focused on how to treat and 

eliminate withering syndrome because 

that is the major cause for the species’ 

decline. One commenter provided 

information that there are diseaseresistant abalone present at San Nicolas 

Island and felt that these should be used 

in a breeding program as part of a 

recovery plan. Another commenter 

suggested that the recovery plan identify 

the Channel Islands as an area for 

restoration activities because the islands 

historically supported high abundances 

of black abalone, are protected from 

certain stressors because of their 


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isolation from the mainland, have an 

additional law enforcement presence, 

and currently support a well-established 

abalone research and monitoring 

program. 

Response: We recognize the urgent 

need for a recovery plan and will 

assemble a team of abalone experts to 

assist in the development of a recovery 

plan for the species. This recovery plan 

will specify recovery actions that should 

be carried out (e.g., disease treatment 

and elimination, restoration, 

enhancement); the geographic scope of 

recovery actions; and demographic, 

threats-based and long-term monitoring 

criteria that must be met in order to 

remove black abalone from the 

endangered species list. If the existence 

of withering syndrome-resistant black 

abalone is confirmed, we will consider 

incorporating their use into a captive 

propagation and enhancement program. 

The Channel Islands area should be 

emphasized in the recovery plan both in 

terms of continued monitoring and 

research and new restoration activities. 

Comment 3: Two commenters were 

concerned about the threats of 

anthropogenic green house gas 

emissions, sea level rise, elevated water 

temperatures and ocean acidification to 

black abalone. One commenter was 

concerned about the entrainment and/or 

impingement risks posed by activities 

that involve the intake of seawater (e.g., 

desalination plants, coastal power 

generating facilities, and liquefied 

natural gas terminals). These 

commenters asserted that the proposed 

rule failed to identify and assess these 

threats adequately. 

Response: Sea level rise and elevated 

water temperatures, induced by longterm climate change, were identified as 

threats to black abalone in the draft 

status review report that supported our 

proposed rule (VanBlaricom et al., 

2007). On a scale ranging from low to 

high overall threat level, sea level rise 

was assigned a medium threat level and 

elevated water temperature was 

assigned a high threat level. A few 

studies have examined the effects of 

rising sea surface temperature on 

abalone at the individual level and 

indicate that elevated temperatures are 

likely to have negative consequences on 

those abalone species associated with 

cooler water temperatures and on 

abalone species that are particularly 

susceptible to withering syndrome. For 

example, when red abalone were held at 

elevated laboratory water temperatures 

over the course of a year (Vilchis et al., 

2005), growth and reproduction halted 

and mortality due to withering 

syndrome rose significantly. We are not 

aware of any studies that have examined 

the potential effects of sea level rise on 

abalone. While the extent of future 

impacts resulting from sea level rise 

remains uncertain, sea level rise may 

result in loss of suitable black abalone 

habitat in preferred depth range because 

of increased erosion, turbidity and 

siltation. 

We have revised the threat assessment 

in the status review report to analyze 

the impacts of ocean acidification 

resulting from the elevated carbon 

dioxide levels in the world’s oceans 

(VanBlaricom et al., 2008). Ocean 

acidification was assigned an overall 

threat level of medium. A few studies 

have examined the effects of elevated 

ocean acidity on marine gastropods and 

the coralline algae they graze upon at 

settlement. Reduced growth and 

survivorship resulted when marine 

gastropods were exposed to a small pH 

reduction over the course of six months 

(Shirayama and Thornton, 2005), and 

calcification rates dropped by as much 

as 40% in coralline algae exposed to 

increased partial pressure of CO2 (Feely 

et al., 2004). Thus, although the 

magnitude and timing of ocean 

acidification remain uncertain, reduced 

ocean pH levels may result in mortality, 

lower reproductive potential, and 

reduced individual growth of black 

abalone. 

While we recognize that long-term 

climate change in coastal marine 

systems will result in a number of 

abiotic shifts that could affect black 

abalone, the biological responses to 

these shifts at the population, species 

and ecosystem levels are complex and 

not yet predictable. Thus, the magnitude 

and timing of the risks associated with 

long-term climate change remain 

uncertain and require future studies and 

better predictive models (Harley et al., 

2006). However, the overall threat 

rankings assigned to sea level rise, 

elevated water temperatures, and 

reduced pH levels are correct according 

to the criteria used in the threats 

assessment and described in more detail 

in the status review report (VanBlaricom 

et al., 2008). 

We acknowledge that entrainment or 

impingement of young stages of black 

abalone is possible when activities that 

require intake of seawater are conducted 

(e.g., desalination plants, coastal power 

generating facilities, and liquefied 

natural gas terminals) and have revised 

the threats assessment in the status 

review report accordingly (VanBlaricom 

et al., 2008). Entrainment and/or 

impingement were assigned an overall 

threat level of low, because their 

severity and geographic scope were 

considered to be low and because there 

is a high degree of uncertainty regarding 

whether this threat affects black 

abalone. We are unaware of any studies 

that have assessed the historic, current 

or future effects of entrainment and/or 

impingement on abalone. However, 

certain aspects of the life history of 

black abalone suggest that entrainment/ 

impingement risk could be relatively 

low. Larvae and juveniles are not likely 

to be in close proximity to seawater 

intakes because black abalone adults are 

believed to spawn in relatively 

protected and confined rocky crevices 

and cracks, larval dispersal time is 

limited (about 3–10 days before 

settlement and metamorphosis; 

McShane, 1992), larvae may disperse 

over distances of only a few meters 

(Chambers et al., 2005), and genetic 

analyses support minimal gene flow 

among populations and a low degree of 

interchange via larval dispersal (Hamm 

and Burton, 2000). 

Comment 4: Two commenters felt that 

designating critical habitat should be a 

top priority and urged NMFS to 

consider designating critical habitat 

throughout the historic range of black 

abalone. One commenter suggested that 

sufficient higher elevation areas should 

be considered as critical habitat to 

account for rising sea level. Another 

commenter proposed that the Channel 

Islands should be included in a critical 

habitat designation for black abalone. 

Response: NMFS solicits information 

on critical habitat features and intends 

to proceed with a proposed designation 

in a subsequent rulemaking. A team of 

experts will be convened to evaluate the 

best scientific information available on 

geographical areas occupied by black 

abalone at the time of listing, including 

areas of the Channel Islands, that 

contain physical or biological features 

essential to the conservation of the 

species and which may require special 

management considerations or 

protection. The team will also evaluate 

whether areas outside the geographical 

area occupied by the species at the time 

of listing, including some areas of the 

Channel Islands, areas within the 

historic range of the species, and higher 

elevation areas along the coast, are 

essential for the conservation of the 

species. 

Comment 5: One commenter felt that 

the proposed rule was not an accurate 

assessment of the extinction risk to 

black abalone, and to get an accurate 

assessment, epidemiologists with 

expertise in withering syndrome would 

need to be consulted. The commenter 

also questioned whether withering 

syndrome should be considered the 

primary threat to near-term extinction of 

black abalone given that recent 

literature suggests that infectious 


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diseases play a limited role in 

promoting extinction of species. 

Response: The methods used for 

evaluating extinction risk in black 

abalone provide an accurate assessment 

of the probability of near-term 

extinction. The SRT used a simple 

quantitative model, incorporating 

uncertainty, to assess the risk that 

withering syndrome poses to black 

abalone. The method relies on the 

expert opinions of the SRT members 

and quantitative information presented 

in the status review report. First, a range 

of categorical probabilities was 

established for two scenarios: (1) that 

the spread of withering syndrome will 

cease, and (2) that black abalone will 

develop resistance to withering 

syndrome over the next 30 years. After 

considering the data collected and 

analyzed in previous sections of the 

status review report, SRT members 

adjusted the probabilities according to 

how certain they were that a particular 

probability category would occur. 

Finally, a single belief-weighted overall 

probability of effective extinction in 30 

years of 96 percent was determined. All 

of the status review team members were 

certain that the probabilities of scenario 

(1) or (2) occurring were very low (less 

than 15 percent). 

Although the commenter refers to 

recent literature suggesting that 

infectious diseases play a limited role in 

promoting extinction, the conclusions 

reached in the cited literature do not 

apply in the case of black abalone, as is 

well documented in the status review 

report. Specifically, the correlation 

between increased spread and 

manifestation of withering syndrome 

with elevated water temperatures, 

evidence of a variety of factors that can 

lead to rising ocean temperatures over 

large geographic scales, and the 

unequivocal empirical record of large 

scale population declines and little 

evidence of local recovery all suggest 

that withering syndrome will continue 

to play a significant role in determining 

the future of black abalone. In addition, 

there is now substantial concern among 

scientists and marine resource managers 

about the emergence of virulent diseases 

in marine organisms on a global scale in 

association with ocean warming in 

recent decades (e.g., Harvell et al., 1999; 

Harvell et al., 2002). Recent surveys of 

the literature suggest that the frequency 

of reporting of new diseases has 

increased for several major marine taxa, 

including mollusks (e.g., Ward and 

Lafferty, 2004). 

The commenter questioned whether 

the status review team members were 

experts in disease ecology and, if not, 

was concerned that the team might not 

be qualified to assess the species’ risk of 

extinction due to withering syndrome. 

Currently, we are not aware of any 

epidemiologists that specialize in 

withering syndrome, as it is a fairly new 

disease. Because the etiology of the 

pathogen that causes the disease is 

unknown and no epidemiological 

expertise exists, a team of scientists and 

resource managers familiar with the 

demography and ecology of black 

abalone and its decline was sufficient to 

assess the near-term risk that withering 

syndrome poses to the species. While 

our team members may not have had 

expertise in the evolution of disease 

resistance, the team’s assessment of 

near-term extinction risk due to 

withering syndrome is the best scientific 

information available and an 

appropriate basis upon which to list 

black abalone as endangered because: 

(1) the team considered all of the 

relevant data on risks associated with 

the spread of withering syndrome and 

the disease’s prevalence; and (2) 

emergence of widespread disease 

resistance within the next 30 years is 

unlikely given that it has not occurred 

during the previous 20 years of marked 

recorded decline. 

Consideration as a ‘‘Species’’ Under the 

ESA 

The ESA defines a species as ‘‘any 

species or subspecies of wildlife or 

plants, or any distinct population 

segment of any species of vertebrate fish 

or wildlife which interbreeds when 

mature.’’ Black abalone is a marine 

invertebrate and is not a subspecies; 

therefore, we list black abalone at the 

species level. 

Status of Black Abalone 

Black abalone has experienced major 

declines in abundance that prompted 

closure of the commercial and 

recreational fisheries in 1993 and 

resulted in local extinctions and low 

local densities in the majority of longterm monitoring studies in California 

(Tissot, 2007). These declines have been 

particularly severe in the Channel 

Islands which were major foci for the 

commercial fishery from 1970–1993 and 

where abalone densities were high 

(greater than 40 m–2) as late as the mid– 

1980s. Although the geographic range of 

black abalone extends to northern 

California, the vast majority of abalone 

populations have historically occurred 

south of Monterey, particularly in the 

Channel Islands (Cox, 1960; Karpov et 

al., 2000). Thus, black abalone 

populations have been severely reduced 

in areas that comprised the majority of 

the adult abalone populations in 

California. 

Natural recovery of severely reduced 

abalone populations can be a very slow 

process (e.g., Tegner, 1992). This is 

largely due to the low reproductive 

success of widely dispersed adult 

populations coupled with short larval 

dispersal distances (see ‘‘Reproduction 

and Spawning Density’’ in VanBlaricom 

et al., 2008). Therefore, severely 

reduced populations, in addition to 

providing few reproductive adults, also 

experience reduced success of 

fertilization and recruitment of larval 

abalone. 

Moreover, many studies have shown 

that abalone larvae are generally not 

widely dispersed. For example, Prince 

et al. (1988) and McShane (1992) 

showed a strong correlation between the 

abundances of adult and newly 

recruited abalone at several sites in 

South Australia, which suggests that 

larvae are not dispersed very far from 

their point of origin. Similarly, Tegner 

(1992) showed that recruitment of 

juvenile green abalone was rare in Palos 

Verdes, California, where adult abalone 

were very uncommon even though 

abundant adult stocks were found less 

that 30 km away in the Channel Islands. 

Thus, although more abundant black 

abalone populations occur in central 

and perhaps northern California, 

decimated stocks in southern California 

are unlikely to receive significant 

recruitment from these distant 

populations (Hamm and Burton, 2000). 

Studies indicate that a local adult 

density ‘‘threshold’’ exists and 

influences local recruitment. Below the 

critical threshold density gametes 

released by males and females into the 

water column do not meet successfully 

and fertilization does not take place. 

Recovery will largely depend on the 

density of local brood stocks and 

whether this density is below the 

critical value necessary for successful 

recruitment (Tegner, 1992). Based on 

empirical data from three long-term 

studies of black abalone in California, 

recruitment failure occurred below 

adult densities of 0.75–1.10 m–2 (Tissot, 

2007). Given that the majority of 

populations south of Cayucos in central 

California are below this threshold, 

many significantly so, it seems unlikely 

that these populations will be able to 

recover naturally to their former 

abundances, at least in the near future. 

Moreover, given the continued decline 

of most populations and the continued 

northward expansion of withering 

syndrome with warming events 

(Raimondi et al., 2002), it seems likely 

that black abalone populations will 

continue to decline across their range. 


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Assessment of Risk of Extinction 

Analysis of Demographic Risk 

The demographic risks that black 

abalone face were assessed by 

considering four demographic criteria 

(abundance, growth rate/productivity, 

spatial structure/connectivity, and 

genetic diversity) and other key risks 

(e.g., threats). The SRT unanimously 

viewed black abalone as being at high 

risk of extinction throughout all or a 

significant portion of its range due to 

low abundance, low growth and 

productivity, compromised spatial 

structure and population connectivity, 

low genetic diversity, and the continued 

manifestation and spread of withering 

syndrome. This assessment is presented 

in more detail in the status review 

report (VanBlaricom et al., 2008) and in 

the proposed rule to list black abalone 

as endangered under the ESA (73 FR 

1986; January 11, 2008). 

Quantitative Representation of Expert 

Opinion Incorporating Uncertainty 

VanBlaricom et al. (2008) calculated 

the probability of extinction with time 

using a simple formula that accounts for 

the main threat that black abalone faces: 

withering syndrome. The probability of 

extinction is considered as a function of 

two parameters (R=the probability that 

the northward spread of withering 

syndrome will cease very soon and 

S=the probability that resistance will 

emerge very soon in the host). If this 

threat alone results in a high risk of 

extinction in a short time (i.e. 30 yearsthe expected life span of black abalone), 

then analysis of that factor alone may 

suffice to evaluate whether the species 

is in danger of extinction currently or in 

the foreseeable future. Assuming R and 

S are independent, the overall 

probability of functional extinction (i.e. 

the reproductive potential of isolated 

survivors is zero and no viable 

populations remain) in 30 years based 

on the SRT members’ best professional 

judgment was 96 percent. 

Summary of Factors Affecting the 

Species 

According to section 4 of the ESA, the 

Secretary of Commerce (Secretary) 

determines whether a species is 

threatened or endangered as a result of 

any (or a combination) of the following 

factors: the present or threatened 

destruction, modification, or 

curtailment of its habitat or range; 

overutilization for commercial, 

recreational, scientific or educational 

purposes; disease or predation; 

inadequacy of existing regulatory 

mechanisms; or other natural or manmade factors affecting its continued 

existence. Collectively, these are often 

referred to as ‘‘factors for decline’’ or 

‘‘listing factors.≥ 

To determine the species’ present 

vulnerability to extinction, we 

considered the historic, current, and/or 

potential impact of the listing factors on 

black abalone, as these relate to current 

species distribution and abundance, and 

the other demographic factors discussed 

above. 

Present or Threatened Destruction, 

Modification, or Curtailment of its 

Habitat or Range 

Elevated water temperatures are likely 

to have contributed to the decline of 

black abalone and pose a serious threat 

to the ability of the species to persist, 

because elevated water temperatures are 

correlated with accelerated rates of 

withering syndrome transmission and 

disease-induced mortality. Water 

temperatures can become elevated 

because of anthropogenic sources of 

thermal effluent and long and shortterm climate change (e.g., global climate 

change and El Nino Southern 

Oscillation). Although there is no 

explicitly documented causal link 

between the existence of withering 

syndrome and long-term climate 

change, patterns observed over the past 

three decades suggest that progression 

of ocean warming associated with largescale climate change may facilitate 

further and more prolonged 

vulnerability of black abalone to effects 

of withering syndrome. 

Other activities leading to substrate 

destruction, such as coastal 

development, recreational access, cable 

repairs, nearshore military operations 

and benthic community shifts, have a 

narrow geographic scope, uncertain or 

indirect effects on black abalone, or 

occur infrequently. Some exceptions 

may exist in the cases of sedimentation 

and sea level rise, because these threats 

have the potential to produce more 

widespread impacts; but the certainty 

that these factors will affect black 

abalone are low. For example, sea level 

rise may result in loss of suitable habitat 

in a preferred depth range because of 

increased erosion, turbidity and 

siltation; but we currently lack 

information to determine whether these 

habitat changes will be important 

factors for further decline. 

Finally, reduced food quality and 

quantity were classified as having a 

relatively low impact. Studies have 

shown that reductions and increases in 

kelp abundance are not correlated with 

black abalone abundance (e.g., 

Friedman et al., 1997). Thus, reduced 

food quality and quantity has likely not 

played an important role in the overall 

decline of black abalone, and unless 

new information surfaces, this factor is 

not believed to pose a significant threat 

in the future. 

Overutilization for Commercial, 

Recreational, Scientific or Educational 

Purposes 

Throughout most of the species’ 

range, local densities are below the 

critical threshold density required for 

successful spawning and recruitment. 

These low densities have occurred in 

part because of overutilization for 

commercial and recreational purposes 

prior to the California fishery closure in 

1993. (The other major cause for these 

mass moralities is withering syndrome. 

See Disease or Predation below). Data 

from abalone fisheries in California and 

Baja California, Mexico indicate a 

decline in landings of at least 93 percent 

during the 1990s. These reductions, 

however, may not be indicative of 

population declines due only to fishing 

activities because mass mortalities due 

to withering syndrome had begun in 

many locations at approximately the 

same time. Rogers-Bennett et al. (2002) 

estimate that the California abalone 

fisheries may have contributed up to a 

99 percent reduction in black abalone 

abundance in the USA, but the 

population may have already been 

declining due to the effects of withering 

syndrome (see Status of Black Abalone 

above). Thus, the estimated take of 3.5 

million black abalone in California’s 

commercial and recreational abalone 

fisheries likely contributed to the 

decline of local densities. This threat no 

longer exists in California because the 

black abalone fisheries were closed in 

1993. The limited information we have 

from Mexico makes it difficult to 

ascertain the relative importance of 

fishing to overall species decline. 

Disease or Predation 

Withering syndrome in black abalone 

is caused by a Rickettsia-like 

prokaryotic organism, ‘‘Candidatus 

Xenohaliotis californiensis’’ (Gardner et 

al., 1995; Friedman et al., 1997; 

Friedman et al., 2000; Friedman et al., 

2002). Candidatus Xenohaliotis 

californiensis (hereafter ‘‘abalone 

rickettsia’’) occurs in epithelial cells of 

the gastrointestinal tract. Infected 

symptomatic animals are unable to 

transfer digested food materials from the 

gut lumen into the epithelial cells and 

beyond, resulting in malnutrition, 

dramatic loss of tissue mass, and 

eventual death. The same pathogen is 

known to cause symptoms of withering 

syndrome in red abalone, and mortality 

rate is positively associated with water 

temperature in both red and black 


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abalone (Moore et al., 2000a, b; Vilchis 

et al., 2005). 

The first reported occurrence of 

significant numbers of black abalone 

with symptoms of withering syndrome 

on the California mainland was in San 

Luis Obispo County in 1988 (Steinbeck 

et al., 1992). Afflicted animals were 

found primarily within a cove receiving 

warmed effluent seawater from the 

cooling system of a nearby nuclear 

power plant. A mass mortality of black 

abalone occurred at the site between 

1988 and 1989, with mortality rates 

correlating well to local patterns of sea 

temperature elevation associated with 

power plant effluent (Steinbeck et al., 

1992). 

In wild animals symptomatic for 

withering syndrome, weakness resulting 

from the disease may cause the 

individual to lose the typically secure 

grip on the rocky substratum in 

response to wave impacts, allowing 

attack by predators or scavengers before 

the individual succumbs to the disease 

itself. Transfer of pathogens from animal 

to animal is fecal to oral on a local scale, 

and is therefore likely facilitated by 

aggregation of abalone in natural 

habitats. Transmission pathways on 

large spatial scales are entirely 

unknown at present. The pathogen for 

withering syndrome is now reported to 

be endemic to all the coastal marine 

waters of central (Friedman and Finley, 

2003) and southern California (Moore et 

al., 2002) south of San Francisco. 

In the vast majority of cases where 

long-term monitoring data are available, 

the appearance of animals symptomatic 

for withering syndrome in a population 

lead inevitably to rapid and dramatic 

declines in population size, most often 

in excess of 90 percent (Tissot, 2007). 

The pattern has been documented for 

black abalone populations throughout 

the range in California. Reports indicate 

similar trends for black abalone 

populations in Mexico. Exceptions exist 

at San Miguel Island, where rates of 

decline at some long-term study sites 

have been atypically slow, and at one 

location each on Santa Cruz and San 

Nicolas islands. These exceptions 

suggest the potential for resilience and 

recovery in populations reduced 

dramatically by withering syndrome. 

However, Tissot (2007) describes the 

negative impacts of withering syndrome 

in multiple locations across the entire 

range of the species, coupled with 

evidence of increasing geographic scope 

of impact. Tissot (2007) indicates that 

withering syndrome continues to 

damage the size and sustainability of 

black abalone populations on a large 

scale. 

We conclude that withering syndrome 

has been and continues to be the 

primary threat contributing to the 

decline of black abalone. The disease 

has caused mass mortality and near 

extirpation of populations throughout 

most of the species’ range and the 

disease continues to spread to 

populations in Monterey County and to 

the north. The rate at which the disease 

is spreading northward will likely be 

exacerbated by warmer water 

temperatures that may result due to a 

variety of factors. 

Abalone face predatory pressure from 

a number of consumer species such as 

gastropods, octopuses, lobsters, sea 

stars, fishes and sea otters (Ault, 1985; 

Estes and VanBlaricom, 1985; Shepherd 

and Breen, 1992). Despite the large 

number of identified abalone predators, 

we are aware of no studies that estimate 

mortality rates of black abalone in 

association with the predator species 

that have been identified. In the past 

black abalone populations were much 

more robust and able to absorb losses 

due to predation without compromising 

viability. Now that the few remaining 

populations are smaller, more isolated, 

and still declining throughout the range, 

predation may pose risk to the future 

survival of the species. In addition, nonanthropogenic predation could limit the 

effectiveness of future recovery efforts 

by interacting with other limiting 

factors. 

Inadequate Regulatory Mechanisms 

Although withering syndrome is 

spread largely by factors other than 

aquaculture, there is evidence 

suggesting that aquaculture operations 

provide a pathway for the spread of the 

disease (Friedman and Finley, 2003). 

Past State and federal regulations were 

not adequate to prevent the spread of 

withering syndrome within and outside 

the United States through the transfer of 

infected animals from one aquaculture 

facility to another and outplanting of 

infected animals from aquaculture 

facilities to the wild. 

Recent State regulations to carefully 

monitor the health of abalone at 

aquaculture facilities and control the 

importation/exportation of abalone 

among facilities will likely reduce the 

threat that the aquaculture industry 

poses in the future. Currently, the State 

monitors aquaculture facilities for 

introduced organisms and disease on a 

regular basis. There is also a restriction 

on out-planting abalone from facilities 

which have not met certification 

standards. If new State regulations to 

carefully monitor aquaculture facilities 

are effective, the future threat that they 

pose to black abalone will be limited. In 

fact, aquaculture may emerge as an 

important, and possibly the only 

effective recovery tool for restoring 

black abalone populations through 

captive propagation and outplanting 

efforts. 

Purposeful illegal harvest, typically 

termed poaching, has been a source of 

mortality for black abalone throughout 

their range since the establishment of 

harvesting regulations by the State of 

California (Taniguchi, unpublished 

data). Since the closure of the California 

black abalone fishery in 1993, a number 

of black abalone poaching cases along 

the California mainland coast, 

particularly in the northern portion of 

black abalone’s geographic range, have 

been documented by the California 

Department of Fish and Game (CDFG) 

from 1993–2003 (Taniguchi, 

unpublished data). The chronic virtual 

absence of black abalone populations 

from highly accessible intertidal 

habitats near human population centers 

in California during the twentieth 

century also supports the conclusion 

that poaching has been a source of 

abalone mortality. 

Enforcement effort has varied over the 

ten-year time period of 1993–2003, and 

was increased in 2000 because of 

coordinated efforts between CDFG 

marine and coastal regions and planned 

overflights along the Central California 

coast during low tides. The problem of 

poaching persists, and existing 

regulatory mechanisms have not yet 

effectively reduced the risks posed by 

illegal take. 

Other Natural or Man-made Factors 

Environmental pollutants and toxins 

are likely present in areas where black 

abalone have occurred and still occur, 

but evidence suggesting causal and/or 

indirect negative effects on black 

abalone due to exposure to pollutants or 

toxins is limited (e.g., Martin et al., 

1977; Miller and Lawrenz-Miller, 1993). 

There is ongoing concern that 

accidentally spilled oil from offshore 

drilling platforms or various types of 

commercial vessels could occur near 

shore in California and could affect a 

significant proportion of black abalone 

habitat; however, at this time we are 

uncertain how such an event would 

impact the species’ overall status. The 

overall risk that environmental 

pollutants and toxins have posed is 

probably low given their limited 

geographic scope and uncertain effects 

on black abalone; however, a single 

event, depending on where it occurs, 

could irreparably damage one or more of 

the few remaining viable populations of 

black abalone. 


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A small number of studies have 

examined the effects of elevated ocean 

acidity on marine gastropods and the 

coralline algae they graze upon at 

settlement. Although the magnitude and 

timing of ocean acidification remain 

uncertain and no direct linkages have 

been established between ocean 

acidification and black abalone, reduced 

pH levels have the potential to result in 

mortality, lower reproductive potential, 

and reduced individual growth. 

Entrainment or impingement of young 

stages of black abalone may result when 

activities that require intake of seawater 

are conducted (e.g., desalination plants, 

coastal power generating facilities, and 

liquefied natural gas terminals). 

Entrainment or impingement risk is 

likely to be relatively low because larvae 

and juveniles are spatially and 

temporally restricted (McShane, 1992; 

Chambers et al., 2005, Hamm and 

Burton, 2000). Thus, the potential for 

large numbers of young black abalone to 

be present in a volume of water that 

becomes entrained at a sea water intake 

is likely low. However, until studies 

examine the potential for traditional and 

new power generating methods to 

entrain or impinge early life stages of 

black abalone, the effects of these 

activities on the species remain highly 

uncertain. 

SRT Assessment of Overall Extinction 

Risk 

The SRT concluded unanimously that 

black abalone is in danger of extinction 

throughout all of its range. The spread 

of withering syndrome poses imminent 

and significant risk to the species and 

exacerbates the high levels of 

demographic risk to which black 

abalone are subject as a result of 

extremely low local densities, low levels 

of growth and productivity, limited 

spatial structure and connectivity, and 

loss of genetic diversity. In addition, the 

SRT estimated that there is 

approximately a 96 percent probability 

that black abalone will suffer functional 

extinction throughout its range within 

the next 30 years. 

Efforts Being Made to Protect the 

Species 

When considering the listing of a 

species, section 4(b)(1)(A) of the ESA 

requires consideration of efforts by any 

State, foreign nation, or political 

subdivision of a State or foreign nation 

to protect such species. Such efforts 

would include measures by Native 

American tribes and organizations and 

local governments, and may also 

include efforts by private organizations. 

Also, Federal, tribal, state, and foreign 

recovery actions developed pursuant to 

16 U.S.C. 1533(f) constitute 

conservation measures. On March 28, 

2003, NMFS and the U.S. Fish and 

Wildlife Service (USFWS) published the 

final Policy for Evaluating Conservation 

Efforts (PECE)(68 FR 15100). The PECE 

provides guidance on evaluating current 

protective efforts identified in 

conservation agreements, conservation 

plans, management plans, or similar 

documents (developed by Federal 

agencies, state and local governments, 

tribal governments, businesses, 

organizations, and individuals) that 

have not yet been implemented or have 

been implemented but have not yet 

demonstrated effectiveness. The PECE 

establishes two basic criteria for 

evaluating current conservation efforts: 

(1) the certainty that the conservation 

efforts will be implemented, and (2) the 

certainty that the efforts will be 

effective. The PECE provides specific 

factors under these two basic criteria 

that direct the analysis of adequacy and 

efficacy of existing conservation efforts. 

As evaluated pursuant to PECE, the 

protective efforts described below do 

not as yet, individually or collectively, 

provide sufficient certainty of 

implementation and effectiveness to 

counter the extinction risk assessment 

conclusion that the species is in danger 

of extinction throughout its range. 

National Marine Fisheries Service 

Programs 

Black abalone was added to NMFS= 

Candidate Species List on June 23, 1999 

(64 FR 33466), and remained on this list 

after we redefined the term ‘‘candidate 

species’’ on April 15, 2004 (69 FR 

19975). Candidate species are those 

petitioned species that are actively 

being considered for listing as 

endangered or threatened under the 

ESA, as well as those species for which 

we have announced initiation of an ESA 

status review in the Federal Register. 

Black abalone was also added to the 

NMFS’ Species of Concern List, which 

was created on April 15, 2004 (69 FR 

19975). Species of concern are those 

species about which we have some 

concerns regarding status and threats, 

but for which insufficient information is 

available to indicate a need to list the 

species under the ESA. . Neither the 

‘‘candidate species’’ nor ‘‘species of 

concern’’ classification carries any 

procedural or substantive protections 

under the ESA. 

National Marine Sanctuaries Program 

Three coastal national marine 

sanctuaries in California contain 

intertidal habitat suitable for black 

abalone: Channel Islands National 

Marine Sanctuary (CINMS), Monterey 

Bay National Marine Sanctuary 

(MBNMS), and Gulf of the Farallones 

National Marine Sanctuary (GFNMS). 

These sanctuary sites, administered by 

NOAA, are protected by federal 

regulations pursuant to the National 

Marine Sanctuaries Act of 1972 as 

amended (16 U.S.C. 1431 et seq.). See 15 

CFR parts 922.71, 922.132, and 922.91, 

respectively. The regulations, which are 

similar at all three sites, provide 

protection against some of the threats to 

black abalone. At all three sanctuaries, 

the inshore boundary extends to the 

mean high water line, thus 

encompassing intertidal habitat. 

Direct disturbance to or development 

of black abalone intertidal habitat is 

regulated at all three national marine 

sanctuaries. The regulations at all three 

sanctuaries require permits for the 

alteration of, construction upon, drilling 

into, or dredging of the seabed 

(including the intertidal zone), with 

exceptions for anchoring, installing 

navigation aids, special dredge disposal 

sites (MBNMS only), harbor-related 

maintenance, and bottom tending 

fishing gear in areas not otherwise 

restricted. 

Water quality in black abalone habitat 

is regulated by strict discharge 

regulations at all three national marine 

sanctuaries. The regulations require 

permits for the discharge or deposit of 

pollutants within or into sanctuaries, 

except for the discharge or deposit of 

effluents required for normal boating 

operations (e.g., vessel cooling waters 

and effluents from marine sanitation 

devices, fish wastes and bait). 

In addition to the permit requirement 

for the disturbance of the submerged 

lands of any sanctuary resource, which 

would be necessary to take black 

abalone, networks of marine reserves 

and marine conservation areas have 

been established by the CDFG and 

NOAA within the CINMS and by CDFG 

along portions of the MBNMS. Within 

these areas, especially within CINMS 

where the protected areas have been in 

place since 2003 and are within the 

Channel Islands National Park, multiagency patrols provide elevated levels of 

enforcement presence and increased 

protection against poaching of black 

abalone. 

We conclude that these regulations do 

not sufficiently ameliorate the 

extinction risk facing the species. 

Though the regulations may help slow 

the rate at which withering syndrome, 

the main risk facing the species, is 

progressing, they are unlikely to stop 

the progression of withering syndrome 

in the near future. 


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State/Local Programs 

The depleted condition of abalone 

resources prompted the California Fish 

and Game Commission to close all 

abalone fisheries south of San Francisco 

by 1997, beginning with the black 

abalone fishery in 1993. The southern 

abalone fishery was closed indefinitely 

with the passage of the Thompson bill 

(AB 663) in 1997. This bill created a 

moratorium on taking, possessing, or 

landing abalone for commercial or 

recreational purposes in ocean waters 

south of San Francisco, including all 

offshore islands. The Thompson bill 

also mandated the creation of an 

Abalone Recovery and Management 

Plan (ARMP), which was finalized in 

December 2005. The bill further 

required the Fish and Game 

Commission to undertake abalone 

management in a manner consistent 

with the ARMP. 

The CDFG’s ARMP provides a 

cohesive framework for the recovery of 

depleted abalone populations in 

southern California, and for the 

management of the northern California 

fishery and future fisheries. All of 

California’s abalone species are 

included in this plan: red, green, pink, 

white, pinto (Haliotis kamtschatkana, 

including H.k. assimilis), black, and flat 

abalone (H. walallensis). The ARMP 

provides a mechanism for helping to 

slow the progression of disease and 

invasive/exotic species through better 

monitoring of aquaculture facilities; 

however, this effort may only make a 

relatively small difference to the threat 

that disease poses given that spread of 

withering syndrome is due largely to 

factors other than aquaculture 

operations. The ARMP also provides a 

framework for restoring black abalone 

populations through translocation and 

captive propagation and enhancement 

programs; however, detailed plans and 

methodologies have neither been 

drafted nor tested and therefore their 

effectiveness for conserving black 

abalone remains uncertain. 

International Conservation Efforts 

The International Union for 

Conservation of Nature and Natural 

Resources (IUCN) publishes a Red List 

of species that are at high risk of 

extinction and, when data are sufficient, 

categorizes species as either Extinct, 

Extinct in the Wild, Critically 

Endangered, Endangered, Vulnerable, 

Near Threatened, or of Least Concern 

(IUCN, 2001). In 2003 the IUCN, based 

on an assessment by Smith et al. (2003), 

placed black abalone on the Red List as 

Critically Endangered under criterion 

A4e. Under criterion A4e, a species may 

be classified as Critically Endangered, 

Endangered, or Vulnerable when its 

population size, measured over the 

longer of 10 years or three generations, 

has declined greater than or equal to 80, 

50, or 30 percent respectively, due to an 

‘‘observed, estimated, inferred, 

projected or suspected population 

reduction (up to a maximum of 100 

years) where the time period must 

include both the past and the future, 

and where the causes of reduction may 

not have ceased or may not be 

understood or may not be reversible, 

based on the effects of introduced taxa, 

hybridization, pathogens, pollutants, 

competitors or parasites’’ (IUCN, 2006). 

Inclusion on the IUCN Red List does not 

carry any regulatory weight with regard 

to conserving black abalone. 

Final Listing Determination 

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. We have reviewed 

the petition, the draft status report and 

the public comments, considered 

protective efforts being made and other 

available published and unpublished 

information, and consulted with species 

experts and other individuals familiar 

with black abalone. On the basis of the 

best available scientific and commercial 

information, we conclude that black 

abalone is presently in danger of 

extinction throughout all of its range. 

This endangered determination is based 

on a suite of risks that black abalone 

face especially: (1) the spread of and 

mortality caused by a disease called 

withering syndrome; (2) low adult 

densities below the critical threshold 

density required for successful 

spawning and recruitment; (3) elevated 

water temperatures that have 

accelerated the spread of withering 

syndrome; (4) reduced genetic diversity 

that will render extant populations less 

capable of dealing with both long- and 

short-term environmental or 

anthropogenic challenges; and (5) illegal 

harvest. The principal threat to black 

abalone is withering syndrome and 

associated conditions that may promote 

the spread of the disease (e.g., 

suboptimal water temperatures and 

introduction of infected animals into 

previously unaffected areas). Withering 

syndrome has caused mass mortality 

and near extirpation of populations in 

the recent past, and the spread of 

withering syndrome threatens the 

species with a very high probability (96 

percent) of extinction within the next 30 

years. This threat is unlikely to be 

ameliorated sufficiently by current 

conservation efforts. 

Prohibitions and Protective Measures 

Section 9 of the ESA prohibits certain 

activities (e.g., importation, exportation, 

take, sale, and delivery) that directly or 

indirectly affect endangered species. 

These activities would constitute a 

violation of section 9, and prohibitions 

apply to all individuals, organizations, 

and agencies subject to U.S. jurisdiction. 

Sections 10(a)(1)(A) and (B) of the ESA 

authorize NMFS 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 nonfederal) for scientific purposes or to 

enhance the propagation or survival of 

a listed species. Activities potentially 

requiring a section 10(a)(1)(A) research/ 

enhancement permit include scientific 

research that targets black abalone. 

Under section 10(a)(1)(B), the Secretary 

may permit takings otherwise 

prohibited by section 9(a)(1)(B) if such 

taking is incidental to, and not the 

purpose of, the carrying out of an 

otherwise lawful activity, provided that 

the requirements of section 10(a)(2) are 

met. 

Section 7(a)(2) of the ESA requires 

Federal agencies to consult with NMFS 

to ensure that activities they authorize, 

fund, or carry out are not likely to 

jeopardize the continued existence of a 

listed species or to destroy or adversely 

modify critical habitat. Under section 

7(a)(4), Federal agencies must confer 

with us on any of these activities to 

ensure that any such activity is not 

likely to jeopardize the continued 

existence of a species proposed for 

listing or destroy or adversely modify 

proposed critical habitat. Examples of 

Federal actions that may affect black 

abalone include permits and 

authorizations relating to coastal 

development and habitat alteration, oil 

and gas development, military 

operations, coastal power plant 

operations, toxic waste and other 

pollutant discharges, and aquaculture 

operations. 

Identification of Activities That Would 

Constitute a Violation of Section 9 of 

the ESA 

On July 1, 1994, NMFS and USFWS 

published 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 once a species is listed (59 FR 

34272). The intent of this policy is to 

increase public awareness of the effect 


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of listings on proposed and ongoing 

activities within the species’ range. We 

identify, to the extent known, specific 

activities that will be considered likely 

to result in violation of section 9, as 

well as activities that will not be 

considered likely to result in violation. 

Activities that we believe could result in 

violation of section 9 prohibitions 

against ’’take’’ of black abalone include: 

(1) unauthorized take; (2) activities that 

directly result in elevation of sea surface 

temperatures (e.g. thermal effluent from 

power plants); (3) substrate destruction 

in intertidal habitats that adversely 

affects black abalone (e.g., coastal 

development, recreational access, oil 

spills, sea level rise); (4) unauthorized 

transfer of abalone species among 

aquaculture facilities or from 

aquaculture facilities to the wild; (5) 

discharging or dumping toxic chemicals 

or other pollutants into areas used by 

black abalone; and (6) unpermitted 

scientific research activities. We believe, 

based on the best available information, 

the following actions will not result in 

a violation of section 9: (1) possession 

of black 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 ESA 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. 

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 black abalone 

under the ESA and its regulations. 

Critical Habitat 

Critical habitat is defined in section 3 

of the ESA as: (i) the specific areas 

within the geographical area occupied 

by the species, at the time it is listed in 

accordance with the ESA, on which are 

found those physical or biological 

features (I) essential to the conservation 

of the species and (II) which may 

require special management 

considerations or protection; and (ii) 

specific areas outside the geographical 

area occupied by the species at the time 

it is listed upon a determination that 

such areas are essential for the 

conservation of the species (16 U.S.C. 

1532(5)(A)). ‘‘Conservation’’ means the 

use of all methods and procedures 

needed to bring the species to the point 

at which listing under the ESA is no 

longer necessary (16 U.S.C. 1532(3)). 

Section 4(a)(3)(A) of the ESA requires 

that, to the maximum extent prudent 

and determinable, critical habitat be 

designated concurrently with the listing 

of a species (16 U.S.C. 1533(a)(3)(A)(i)). 

If critical habitat is not determinable at 

the time of listing, an extension of one 

year may be given, during which critical 

habitat must be designated (16 U.S.C. 

1533(b)(6)(C)(ii)). Designations of 

critical habitat must be based on the 

best scientific data available and must 

take into consideration the economic, 

national security, and other relevant 

impacts of specifying any particular area 

as critical habitat. Once critical habitat 

is designated, section 7 of the ESA 

requires Federal agencies to ensure that 

they do not fund, authorize or carry out 

any actions that are likely to destroy or 

adversely modify that habitat. This 

requirement is in addition to the section 

7 requirement that Federal agencies 

ensure that their actions do not 

jeopardize the continued existence of 

listed species. We are currently 

considering critical habitat for black 

abalone, but a proposed designation is 

not yet determinable because: (1) we 

lack information sufficient to perform 

required analyses of the impacts of the 

designation; and (2) the habitat 

requirements of the species are not 

sufficiently well known to permit 

identification of an area as critical 

habitat. Thus, we seek public input to 

assist in gathering and analyzing the 

best available scientific data and 

information to support a critical habitat 

designation, which will be proposed in 

a subsequent Federal Register notice. 

Specifically, we seek information 

regarding: (1) current or planned 

activities within the range of black 

abalone, their possible impact on black 

abalone, and how those activities could 

be affected by a critical habitat 

designation; (2) quantitative evaluations 

describing the quality and extent of 

marine intertidal or subtidal habitats 

occupied in the past or presently by 

black abalone; and (3) the economic 

costs and benefits likely to result from 

the designation of critical habitat. We 

will continue to meet with co-managers 

and other stakeholders throughout the 

designation process. 

Joint NMFS/USFWS regulations for 

listing endangered and threatened 

species and designating critical habitat 

at section 50 CFR 424.12(b) state that 

the agency ‘‘shall consider those 

physical and biological features that are 

essential to the conservation of a given 

species and that may require special 

management considerations or 

protection’’ (hereafter also referred to as 

‘‘essential features’’). Pursuant to the 

regulations, such requirements include, 

but are not limited to the following: (1) 

space for individual and population 

growth, and for normal behavior; (2) 

food, water, air, light, minerals, or other 

nutritional or physiological 

requirements; (3) cover or shelter; (4) 

sites for breeding, reproduction, rearing 

of offspring, germination, or seed 

dispersal; and generally; (5) habitats that 

are protected from disturbance or are 

representative of the historic 

geographical and ecological 

distributions of a species. These 

regulations go on to emphasize that the 

agency shall focus on essential features 

within the specific areas considered for 

designation. These features ‘‘may 

include, but are not limited to, the 

following: spawning sites, feeding sites, 

seasonal wetland or dryland, water 

quality or quantity, geological 

formation, vegetation type, tide, and 

specific soil types.’’ 

Information Solicited 

To ensure that a designation of critical 

habitat will be as accurate and effective 

as possible, we solicit information from 

the public, other governmental agencies, 

the scientific community, industry, and 

any other interested parties. 

Specifically, we are interested in any 

information that will inform the 

designation including: (1) quantitative 

evaluations describing the quality and 

extent of marine intertidal or subtidal 

habitats (occupied currently or occupied 

in the past, but no longer occupied) for 

black abalone as well as information on 

areas that may qualify as critical habitat 

for black abalone in the future; (2) 

biological or other relevant data 

concerning threats to black abalone 

including, but not limited to: 

toxicological studies on the adverse 

effects of chemicals on black abalone 

and epidemiological data relating to 

withering syndrome; (3) current or 

planned activities within the range of 

black abalone and their possible impact 

on black abalone; (4) efforts being made 

to protect black abalone; (5) activities 

that could be affected by a critical 

habitat designation; and (6) the 

economic costs and benefits of 

additional requirements of management 

measures likely to result from the 

designation of critical habitat (see DATES

and ADDRESSES). 

References 

A complete list of all references cited 

herein is available upon request (see 

ADDRESSES section). 


sroberts on PROD1PC70 with RULES
1946 Federal Register / Vol. 74, No. 9 / Wednesday, January 14, 2009 / Rules and Regulations 

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. 2d 

825 (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 are not applicable to the 

listing process. In addition, this rule is 

exempt from review under Executive 

Order 12866. This proposed rule does 

not contain a collection-of-information 

requirement for the purposes of the 

Paperwork Reduction Act. 

Federalism 

NMFS has conferred with the State of 

California in the course of assessing the 

status of black abalone through 

quarterly coordination meetings 

between the CDFG and NMFS and 

CDFG technical peer review of the black 

abalone draft status review report. The 

coordination meetings contributed to 

our consideration of Federal, state and 

local conservation measures. The CDFG 

technical peer review comments were 

considered and comments and 

information were incorporated into the 

final version of the status review report. 

As subsequent issues with ESA 

compliance and rulemaking arise (e.g., 

issuance of permits, critical habitat 

designation, recovery planning), we will 

continue to communicate with the 

States, and other affected local or 

regional entities, giving careful 

consideration to all concerns and 

comments received. 

List of Subjects in 50 CFR Part 224 

Endangered and threatened species, 

Exports, Imports, Transportation. 

Dated: January 9, 2009. 

James W. Balsiger, 

Acting Assistant Administrator for Fisheries, 

National Marine Fisheries Service. 

■ For the reasons set out in the 

preamble, 50 CFR part 224 is amended 

as follows: 

PART 224—ENDANGERED MARINE 

AND ANADROMOUS SPECIES 

■ 1. The authority citation 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 

revised to read as follows: 

§ 224.101 Enumeration of endangered 

marine and anadromous species. 

* * * * * 

(d) Marine invertebrates. The 

following table lists the common and 

scientific names of endangered species, 

the locations where they are listed, and 

the citations for the listings and critical 

habitat designations. 

Species 

Where Listed Citation (s) for Listing Determinations 

Citations (s) for 

Critical Habitat 

Common name Scientific name Designations 

Black abalone Haliotis 

cracherodii 

USA, CA. From Crescent City, 

California, USA to Cape San 

Lucas, Baja California, Mexico, 

including all offshore islands. 

[insert Federal Register volume 

and page number where 

document begins; January 14, 

2009] 

N/A 

White abalone Haliotis 

sorenseni 

USA, CA. From Point 

Conception, California to Punta 

Abreojos, Baja California, 

Mexico including all offshore 

islands and banks. 

NOAA 2001; 66 FR 29054, 

May, 29, 2001. 

Deemed not 

prudent NOAA 

2001; 66 FR 

29054, May, 29, 

2001. 

[FR Doc. E9–635 Filed 1–13–09; 8:45 am] 

BILLING CODE 3510–22–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 679 

[Docket No. 071106673–8011–02] 

RIN 0648–XM68 

Fisheries of the Exclusive Economic 

Zone Off Alaska; Atka Mackerel Lottery 

in Areas 542 and 543 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Notification of fishery 

assignments. 

SUMMARY: NMFS is notifying the owners 

and operators of registered vessels of 

their assignments for the 2009 A season 

Atka mackerel fishery in harvest limit 

area (HLA) 542 and/or 543 of the 

Aleutian Islands subarea of the Bering 

Sea and Aleutian Islands management 

area (BSAI). This action is necessary to 

allow the harvest of the 2009 A season 

HLA limits established for area 542 and 

area 543 pursuant to the 2008 and 2009 

harvest specifications for groundfish in 

the BSAI. 

DATES: Effective 1200 hrs, Alaska local 

time (A.l.t.), January 9, 2009, until 1200 

hrs, A.l.t., April 15, 2009. 

FOR FURTHER INFORMATION CONTACT: Josh 

Keaton, 907–586–7228. 

SUPPLEMENTARY INFORMATION: NMFS 

manages the groundfish fishery in the 

BSAI exclusive economic zone 

according to the Fishery Management 

Plan for Groundfish of the Bering Sea 

and Aleutian Islands Management Area 

(FMP) prepared by the North Pacific 

Fishery Management Council under 

authority of the Magnuson-Stevens 

Fishery Conservation and Management 

Act. Regulations governing fishing by 

U.S. vessels in accordance with the FMP 

appear at subpart H of 50 CFR part 600 

and 50 CFR part 679. 

In accordance with 

§ 679.20(a)(8)(iii)(A), owners and 

operators of vessels using trawl gear for 

directed fishing for Atka mackerel in the 

HLA are required to register with 

NMFS. Fourteen vessels have registered 

with NMFS to fish in the A season HLA 

fisheries in areas 542 and/or 543. In 


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