29046 Federal Register / Vol. 66, No. 103 / Tuesday, May 29, 2001 / Rules and Regulations

42Compare Fees R&O, paragraph 58.

43No other provisions of part 5 of the

Commission’s rules apply.

44See 47 CFR 5.93(a).

45See 47 CFR 5.93(b).

27A the fee which they remit with Form

159, in the amount of five percent of the

amount specified on line 29A; and on

line 28 the facility identification

number assigned to their station by the

Commission. The licensee’s signature

on line 30 certifies under penalty of

perjury the accuracy of the information

reported on Form 159.42

28. The Commission delegates

authority to the Office of Managing

Director to specify by Public Notice any

additional procedures for filing and

processing the fees required by this

Order that are necessary or warranted.

The Commission reserves the right to

audit each participating licensee’s

records which support the calculation of

the amount specified on line 27A of

Form 159. Each such licensee, therefore,

is required to retain such records for the

duration of the pilot program, or for

three years from the date of remittance

of fees pursuant to this Order,

whichever is longer.

29. While we do not here include

automatic confidentiality for

information submitted pursuant to this

Order, submission of the required

reporting form, and/or remittance of fee

payment may be accompanied by a

request for confidentiality pursuant to

47 CFR 0.459.

D. Other Requirements

30. Application of experimental rules.

In addition to the foregoing, we believe

that requirements similar to those

contained in sections 5.93(a) and (b) of

the rules should apply to the pilot

program.43 Thus, we will require that all

transmitting and/or receiving equipment

used in the pilot program be owned by,

leased to, or otherwise under the control

of the LPTV licensee.44 Response station

equipment may not be owned by

subscribers to the experimental data

service. This will insure that the LPTV

licensee has control of the equipment if

and when the pilot program terminates.

In addition, we will require the LPTV

licensee to inform anyone participating

in the experiment, including but not

limited to subscribers or consumers,

that the service or device is provided

pursuant to a pilot program and is

temporary.45

31. Final Regulatory Flexibility

Analysis. No regulatory flexibility

analysis is required because the rules

adopted in this Order are being adopted

without notice and comment rule

making.

32. Congressional Review Act. These

rules, promulgated without notice and

comment rule making, are not subject to

the provisions of the Congressional

Review Act.

III. Ordering Clauses

33. Accordingly, pursuant to the

authority contained in sections 1, 2(a),

4(i), 7, and 336 of the Communications

Act of 1934 as amended, 47 U.S.C. 1,

2(a), 4(i), 7 and 336, part 74 of the

Commission’s rules, 47 CFR part 74, is

amended as set forth in this Order.

34. The rule amendments set forth

shall be effective immediately.

List of Subjects in 47 CFR Part 74

Television.

Federal Communications Commission.

Magalie Roman Salas,

Secretary.

Rules

For the reasons discussed in the

preamble, the Federal Communications

Commission amends 47 CFR part 74 as

follows:

PART 74—EXPERIMENTAL RADIO,

AUXILIARY, SPECIAL BROADCAST

AND OTHER PROGRAM

DISTRIBUTIONAL SERVICES

1. The authority citation for part 74 is

amended to read as follows:

Authority: 47 U.S.C. 154, 303, 307, 336(f),

336(h) and 554.

2. A new § 74.785 is added to read as

follows:

§ 74.785 Low power TV digital data service

pilot project.

Low power TV stations authorized

pursuant to the LPTV Digital Data

Services Act (Public Law 106–554, 114

Stat. 4577, December 1, 2000) to

participate in a digital data service pilot

project shall be subject to the provisions

of the Commission Order implementing

that Act. FCC 01–137, adopted April 19,

2001.

[FR Doc. 01–13380 Filed 5–25–01; 8:45 am]

BILLING CODE 6712–01–U

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 224

[Docket No. 990910253–1120–03; ID No.

041300B]

RIN 0648–AM90

Endangered and Threatened Species;

Endangered Status for White Abalone

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Final rule.

SUMMARY: Following completion of a

comprehensive status review of the

white abalone (Haliotis sorenseni) and a

review of factors affecting the species,

NMFS published a proposed rule to list

the white abalone as an endangered

species on May 5, 2000. After

considering public comments on the

proposed rule, NMFS is now issuing a

final rule to list the white abalone as an

endangered species. NMFS has

determined that it is not prudent to

designate critical habitat because

identification of such habitat is

expected to increase the threat of

poaching for white abalone.

DATES: Effective June 28, 2001.

ADDRESSES: Assistant Regional

Administrator, Protected Resources

Division, NMFS, Southwest Region, 501

West Ocean Blvd., Suite 4200, Long

Beach, CA 90802–4213.

FOR FURTHER INFORMATION CONTACT:

Craig Wingert, 562–980–4021; or Marta

Nammack, 301–713–1401.

SUPPLEMENTARY INFORMATION:

Previous Federal Endangered Species

Act (ESA) Actions Related to White

Abalone

NMFS designated the white abalone,

which is a marine invertebrate mollusc,

as a candidate species under the ESA on

July 14, 1997 (62 FR 37560), based on

information indicating that the species

had suffered a major decline in

abundance. Because of the depleted

status of white abalone, NMFS

contracted with Scripps Institution of

Oceanography (SIO) in August 1998 to

conduct a comprehensive status review

of the species. The status review of

white abalone was completed in March

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

Federal Register / Vol. 66, No. 103 / Tuesday, May 29, 2001 / Rules and Regulations 29047

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 several environmental

organizations. NMFS considered this

second request as supplemental

information to the first petition.

NMFS published its 90-day finding on

September 24, 1999 (64 FR 51725),

which concluded that the first petition

presented sufficient scientific and

commercial information indicating that

a listing of white abalone as an

endangered species may be warranted.

However, NMFS did not find that the

petition presented substantial evidence

warranting listing on an emergency

basis. This finding was based on a

review of the petition and other

available information which indicated

that the State of California had closed

commercial and recreational fishing for

white abalone and that white abalone

habitat was not currently at risk from

destruction or adverse modification.

Based on the findings of the white

abalone status review and an evaluation

of the factors affecting the species,

NMFS published a proposed rule to list

the white abalone as an endangered

species on May 5, 2000 (65 FR 26167).

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).

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). According to Cox

(1960) and Tutschulte (1976), white

abalone were found at subtidal depths

of 20-60 m (66–197 ft) and were

historically most ‘‘abundant’’ at depths

of 25–30 m (80–100 ft). 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.

According to Hobday and Tegner

(2000a), the 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. Cox (1960) indicated the

maximum size was slightly larger at

25.4 cm (10 inches), but that the

‘‘average’’ observed size is about 13–20

cm (5–8 inches) and animals less than

10 cm (4 inches) are rare. White abalone

reach sexual maturity at a size 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 abalone 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 the 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 °C (59 °F) (Leighton, 1972).

This larval period is longer than periods

reported for other California abalone

species (Hobday and Tegner, 2000a).

Drift tube studies have found that larval

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).

Summary of Comments Received in

Response to the Proposed Rule

No public hearings were held for

NMFS’ proposal to list the white

abalone as an endangered species, as no

hearings were requested during the 60-

day public comment period. During the

public comment period, however,

NMFS received nine written comments

on the proposed rule: five from private

citizens; two from non-governmental

organizations, and one each from a local

government agency and an academic/

research organization. Of the nine

commenters, seven supported the listing

of white abalone as an endangered

species, one questioned the need for

listing given the closure of the

commercial and recreational fisheries

for white abalone, and one provided

some limited technical information

only. A summary of the comments and

the responses thereto are presented

here.

Issue 1: Biological Information and

Status of White Abalone

Comment: One commenter questioned

the 25 cm (9.8 inches) maximum size of

white abalone cited in NMFS’ proposed

29048 Federal Register / Vol. 66, No. 103 / Tuesday, May 29, 2001 / Rules and Regulations

rule and indicated that Cox (1960) had

reported a maximum size of 10 inches

(or 25.4 cm). The commenter also

provided museum specimen record

citations for California and Mexico that

provide additional documentation

regarding the historic range of white

abalone.

Response: NMFS’ proposed listing

notice does indicate that the maximum

shell length recorded for white abalone

in California ranges from 20–25 cm.

This information was taken from the

NMFS Status Review (Hobday and

Tegner 2000a). The discussion of white

abalone life history in this final rule has

been modified to reflect the maximum

size reported by Cox (1960).

Comment: One commenter speculated

that white abalone have been extinct for

at least 10 years based on his personal

diving observations in the northern

Channel Islands.

Response: As discussed in NMFS’

status review, the proposed listing

notice, and elsewhere in this final rule,

the white abalone has declined

precipitously in abundance over the

past 30 years; however, NMFS disagrees

that white abalone are already extinct.

As discussed elsewhere in this final

rule, the most recent submarine surveys

that were conducted in 1996–7 and

1999 (Davis et al., 1998; Haaker, et al.,

2000) directly observed small numbers

of white abalone, and population

estimates developed by Hobday and

Tegner (2000a) based on these survey

observations suggest that the current

white abalone population ranges from

approximately 1,600 to 2,500

individuals.

Issue 2: Need for Emergency Listing of

White Abalone

Comment: One commenter indicated

that NMFS should accelerate its efforts

to protect white abalone by listing the

species on an emergency basis under the

ESA.

Response: As discussed in the

proposed listing notice, NMFS has

determined that an emergency listing of

white abalone is not warranted. That

determination was based on the fact that

no emergency existed that posed a

significant risk to the well-being of the

species. Specifically, the State of

California has closed the commercial

and recreational fisheries for white

abalone and the best available

information indicated that white

abalone habitat was not currently at risk

of being destroyed or adversely

modified. NMFS continues to believe

that the timeframe of the normal rule

making process is sufficient for the

white abalone listing determination.

Issue 3: Need for Designation of Critical

Habitat

Comment: Three commenters were

very concerned that NMFS did not

propose critical habitat for white

abalone. These commenters believe that

a critical habitat designation is

necessary for the eventual recovery of

white abalone and strongly urged NMFS

to designate critical habitat

encompassing the species’ historic

range, including the northern Channel

Islands. One commenter provided

information that it believed NMFS

should consider if it proceeded with a

critical habitat designation that

included the Palos Verdes shelf.

Response: 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. According to

§ 424.12(a)(1)(i) of NMFS’ and the U.S.

Fish and Wildlife Service’s joint

implementing regulations for listing

endangered and threatened species and

designating critical habitat (50 CFR part

424), a designation of critical habitat is

not prudent when one or both of the

following situations exist: (1) The

species is threatened by taking or other

human activity, and the identification of

critical habitat can be expected to

increase the degree of such threat to the

species, or (2) such designation of

critical habitat would not be beneficial

to the species.

Over-harvesting of white abalone for

human consumption is the primary

factor responsible for the dramatic

decline (99 percent) in white abalone

abundance, and it has led to a situation

where the density of surviving adults is

so low that successful reproduction and

recruitment are unlikely to occur. There

are very limited opportunities for

people to harvest abalone in California

any longer, and, therefore, NMFS

believes there is a significant threat to

white abalone from poaching because

abalone as a group continue to be highly

prized and in demand as food by

humans.

Between July 1999 and April 2001,

135 citations were issued for violations

of Title 14, 29.15, which addresses

abalone taken out of season, sizes, and

overlimits (Gaskins, pers. comm., 2001).

Because of the extremely low

population size and low density of the

surviving adult white abalone in

California, any successful poaching

efforts will reduce adult densities even

further, thereby increasing the

likelihood of recruitment failure and

risk of extinction. The identification of

critical habitat for white abalone would

disclose to the public those limited

areas where the species may currently

exist, and, therefore, NMFS believes

such an action will increase the threat

of poaching to white abalone.

In addition, the available information

indicates that habitat degradation or loss

was not responsible for the dramatic

reduction in abundance of white

abalone. It is probable that the isolated

location of the northern and southern

Channel Islands, where most white

abalone were historically harvested, and

the relatively deep depth of white

abalone habitat throughout its range

have limited the impacts of

anthropogenic habitat alterations. NMFS

believes that the continued isolation of

white abalone habitat from human

activities serves to protect that habitat.

Given the distribution of the white

abalone habitat between Point

Conception and the Mexican border and

the fact that much of it is isolated in the

Channel Islands, there are few Federal

activities (e.g., oil and gas development,

mining, dredge disposal) that have the

potential to impact white abalone

habitat between Point Conception and

the Mexican border. In the case of oil

and gas development, for example,

future oil and gas leasing which could

potentially lead to more exploration and

development in this area is not expected

to occur in the foreseeable future

because of a Presidential moratorium

that prohibits leasing through the year

2012. Although there are a small

number of existing leases where very

limited exploration may occur in the

future, this activity would be focused in

only a few locations well offshore from

areas that might contain white abalone

habitat. Hard minerals exploration and

mining in coastal areas south of Point

Conception are not constrained by the

Presidential moratorium, but there are

no such activities occurring at present

and none are expected in the foreseeable

future. Because few, if any, Federal

activities are likely to affect white

abalone habitat, NMFS believes that

there are minimal additional regulatory

benefits through ESA section 7 that are

likely to accrue to the species from the

designation of critical habitat.

After considering the increased risks

to white abalone from poaching that

would be more likely to occur as a result

of a critical habitat designation, and

noting the benefits that may accrue to

the species from such a designation,

NMFS does not believe that a

designation would provide significant

benefits that outweigh the increased

risks (see 50 CFR 424.12(a)(1)(i)). Based

on all of the above NMFS has

determined that it is not prudent to

Federal Register / Vol. 66, No. 103 / Tuesday, May 29, 2001 / Rules and Regulations 29049

designate critical habitat for white

abalone at this time.

Issue 4: Need To Initiate a White

Abalone Recovery Program

Comment: Several commenters

strongly urged NMFS to initiate a

recovery effort for white abalone as soon

as possible because they believe that the

population only consists of a very few,

older individuals and successful

reproduction is unlikely to occur at

present densities. These commenters

also urged NMFS to establish breeding

programs, including outplanting and

monitoring of laboratory reared animals,

in an effort to provide for the continued

existence of white abalone.

Response: NMFS recognizes that the

continued existence of white abalone is

precarious and that the species is at a

high risk of extinction in the near

future. For this reason, NMFS agrees

there is an urgent need to embark on a

recovery effort for this species as soon

as possible. NMFS is committed to this

effort and intends to take a lead role in

white abalone recovery, including the

establishment of a white abalone

recovery team and the development of

a recovery plan. NMFS also continues to

be supportive of the restoration efforts

promoted by the White Abalone

Restoration Consortium, which includes

the collection of white abalone

broodstock followed by spawning and

rearing of progeny in the laboratory for

subsequent re-establishment in the wild.

NMFS believes that efforts such as these

will be crucial to ensuring the

continued survival and long-term

recovery of white abalone.

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 considered the following factors

in evaluating the risks facing white

abalone and in making a determination

as to its current status: (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. A discussion of

these factors with respect to white

abalone is presented in detail below.

1. Current Abundance in Relation to

Historical Abundance

a. Historical Abundance. Estimates of

pre-exploitation abundance of white

abalone can 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) estimated the 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

pre-exploitation abundance of 2,221,800

animals. Hobday and Tegner (2000a)

calculated a second pre-exploitation

population abundance estimate for

white abalone in Mexico of 2.12 million

individuals using fishery-independent

data from surveys conducted by

Guzman and Proo et al. (1976) between

1968 and 1970 along the west coast of

Baja California within the depth range

of 0 to 27 m (0-89 ft). Hobday and

Tegner (2000a) then doubled this

estimate to account for white abalone in

California and calculated a preexploitation estimate of white abalone

abundance of 4.24 million animals

throughout the range of the species.

This second larger estimate incorrectly

assumes that white abalone were found

throughout the area surveyed (i.e., in

southern Baja, California), and therefore,

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 lbs

(274,792 kg) of white abalone were

landed. Assuming each abalone weighs

1.67 lbs (.76 kg), then a total of 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, they

estimated the pre-exploitation California

population size equals the total catch

between 1969 and 1978 which was

crudely estimated to be 362,759

animals. If this figure is doubled to

include Mexico, the historical

abundance is estimated to be 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, ±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)

estimated that the population size

throughout the entire range of the

species was 1,613 white abalone. They

concluded 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. 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 with an average

density of 0.00027 white abalone/m2 or

2.7 white abalone per ha.

The 1996-1997 and 1999 surveys for

white abalone in California covered

approximately 6 percent of the

estimated 966 ha (2,386 acres) of

suitable habitat throughout the species’

29050 Federal Register / Vol. 66, No. 103 / Tuesday, May 29, 2001 / Rules and Regulations

range, so Hobday and Tegner (2000b)

combined data from these surveys and

calculated another estimate of current

population abundance. 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.

In October and November of 2000,

NMFS and the California Department of

Fish and Game (CDFG) conducted a

remotely operated vehicle survey for

white abalone in the vicinity of Catalina

Island, San Clemente Island, Cortes

Bank, and Tanner Bank. These survey

localities constituted areas which

historically accounted for more than 90

percent of all white abalone landings.

The number of white abalone observed

by both the pilot and an observer were

counted for each dive and video tapes

of each dive were re-analyzed after the

survey to confirm identifications and to

count cryptic animals. Transects were

only conducted on rocky substrates and

at depths ranging from 35-65 m where

white abalone are normally found.

Based on the results of this survey, the

white abalone population in U.S. waters

was estimated as 1,658 individuals with

a 95-percent confidence interval of 174-

15,579 individuals. The high variance

associated with this estimate is due to

the variability in the numbers of white

abalone observed in the transects.

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

range between 25 and 65 m (82-213 ft),

and the amount of habitat may vary

among different geographic areas

(Hobday and Tegner, 2000b). Second,

since the exact width of the submarine

transects are not known, the area

actually surveyed may be larger or

smaller than that which was assumed.

In addition, since white abalone prefer

low relief rocks covered with foliose

algae near sand at depths between 40-

60 m, observers 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. Based on an average

weight of 1.67 lb (0.75 kg) per white

abalone, landings of this magnitude

would lead to an approximation of

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. Commercial white abalone

harvest began in 1967, at a time when

the total abalone landings in California

began to decline (Hobday and Tegner,

2000a). Over 95 percent of the

commercial white abalone landings

occurred within the 9-year period

between 1969 and 1977. White abalone

landings peaked at 144,000 lbs (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 lbs (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 visual 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 often difficult to find, they

were harvested in Mexico prior to 1931

because the tender meat attracted a high

price (Croker, 1931). Historically, white

abalone comprised only a few percent of

the total abalone in Baja California.

However, in certain cooperatives, white

abalone was sometimes a significant

portion of the 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 lbs

(26,301 kg) of meat, 65 percent of the

catch represents a large amount of white

abalone meat (i.e., 37,689 lbs 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 the 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 1 from 1993 to

1998. Although the data are limited, it

appears that in those areas, catch-perunit-effort of abalone declined from 205

to 18 kg/boat/day (452 to 40 lbs)

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 (726 - 907

metric tons), with most abalone

harvested from Cedros Island. From

1993 to 1998, the price of abalone in

Mexico remained constant and is an

important source of income for the

region (Ponce-Diaz et al., 1998, cited in

Hobday and Tegner, 2000a). Based on

trends in landings, Mexico’s white

abalone populations may be depleted

(Guzman del Proo, 1992), though

perhaps not as severely as in the United

States (Hobday and Tegner, 2000a).

d. Recreational Fishery–dependent

Data—Mexico. Although there is no

recreational abalone fishery in Mexico,

the collection of intertidal abalone is

thought to occur at some unknown level

(Hobday and Tegner, 2000a).

e. Summary of Trends. Survey

assessments for white abalone have

been limited in number and are

spatially separate (Hobday and Tegner,

2000a). For this reason and because

relatively few white abalone were

observed, estimates of white abalone

density based on fishery-independent

data collected during surveys in the

1980’s and 1990’s are imprecise. The

current white abalone abundance

estimates 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.

Federal Register / Vol. 66, No. 103 / Tuesday, May 29, 2001 / Rules and Regulations 29051

The results of the series of fisheryindependent abalone surveys conducted

in the early 1980s and 1990s indicate

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,

the spatial and temporal distribution of

individuals 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 because of 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

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 abundance

of breeding animals determined

recruitment for the Australian abalone

species, Haliotis rubra. Thus, despite

the fact that adult abalone broadcast

millions of sperm and eggs and their

offspring have 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 distance

separations is extremely limited. If the

current estimate of 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 where 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 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 observations indicate that the

survey sites were previously inhabited

by white abalone. Davis et al. (1998)

concluded 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.

4. Other Natural and Human Influences

See subsections (A), (C), and, (E) in

the section of this notice entitled

‘‘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’ status

review for white abalone (Hobday and

Tegner, 2000a), which includes a review

of current and historical factors affecting

white abalone, identifies overutilization

for commercial purposes as the primary

reason for the decline of white abalone

(Hobday and Tegner, 2000a). The

following discussion summarizes

NMFS’ findings regarding the factors

responsible for the decline of white

abalone.

29052 Federal Register / Vol. 66, No. 103 / Tuesday, May 29, 2001 / Rules and Regulations

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. However, due to

the isolation of the offshore islands off

southern California and northern Baja

California, and the depth range of the

species, anthropogenic impacts to white

abalone habitat should be limited near

the islands. The CDFG believes that

direct threats to white abalone are

limited, especially on the islands

offshore of southern California, but

indicated that mainland habitat may

have been affected to an ‘‘unknown

extent’’ for a variety of unspecified landbased human activities. Historically,

pollution did affect shallow water

abalone habitat (i.e., Macrocystis kelp

forests) along the Palos Verdes

Peninsula in the 1950s which resulted

in a decline in certain shallow water

abalone populations (Tegner, 1989;

1993). The source of that pollution has

been controlled, however, and it is no

longer affecting abalone habitat in that

area.

B. Overutilization for Commercial,

Recreational, Scientific or Educational

Purposes

White abalone abundance has

declined significantly throughout its

range 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 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 region wide basis. The

CDFG believes 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.

White abalone catch data from

California indicate that over 80 percent

of the white abalone landings were

taken from San Clemente Island. The

offshore Tanner Bank and Cortez BankBishop Rock region provided 13 percent

of the total catch. Between 1965 and

1975, over 25 percent (average 43

percent) of the white abalone catch in

each area 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 consistent over

a period of years. Region-wide landings

of white abalone peaked at 144,000 lbs

(65,318 kg) in 1972 after only 3 years of

commercial exploitation, and declined

to less than 10,000 lbs (4,535 kg) in

1977. By 1978, white abalone landings

were so negligible (<1,000 lbs 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

large numbers of empty white abalone

shells should have been detected during

the abalone surveys of the 1980s if

white abalone were significantly

affected by withering syndrome.

In 1990, 20 freshly dead white

abalone with undamaged shells that

could have been killed by withering

syndrome 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,

and a white abalone in captivity

recently died and showed symptoms of

withering syndrome. Although

withering syndrome may affect white

abalone at some frequency, it is unlikely

to have been a major factor in the

decline of the species. The mass

mortalities associated with the outbreak

of withering syndrome in black abalone

populations resulted in large numbers of

shells which were easily detected in

surveys (Hobday and Tegner, 2000a). If

white abalone were similarly affected in

large numbers, large numbers of shells

or affected individuals of all size classes

would have been detected in the

surveys of the early 1980’s, but this was

not the case.

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.

Predation by sea otters is not likely to

have been a major factor in the decline

of white abalone due to its depth range

and latitudinal distribution. In

California, sea otters seldom forage

below 20-25 m, and with the exception

of San Miguel and San Nicolas Islands,

otters do not occupy the same

geographic range as white abalone. 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 has

experienced significant declines in

abundance throughout its range as a

result of commercial over harvesting,

harvest regulations for white abalone

during the major period of its decline in

the 1970s were clearly inadequate to

conserve the resource and maintain

white abalone harvest 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). In California,

minimum size limits were established

for abalone that were greater than the

size of sexual maturity which should

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

Federal Register / Vol. 66, No. 103 / Tuesday, May 29, 2001 / Rules and Regulations 29053

the population. California also

prohibited abalone harvest during the

spawning season. Other regulations,

such as bag limits for recreational

fishermen, and limited entry, were also

implemented 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 (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). NMFS does not have

present documentation that Mexico has

closed its commercial white abalone

fishery or limited white abalone fishing.

The intentional capture of sub-legal

abalone (i.e., poaching) before they

contributed substantially to the

population could have reduced the

reproductive potential of white abalone

(Hobday and Tegner, 2000a); however,

this is not likely to have been a major

factor in the decline of white abalone

because the State of California has

required all commercially caught

abalone to be landed in the shell. 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

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,

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.

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

led 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 conducted and/or

participated in several SCUBA and

submersible surveys documenting the

distribution and abundance of white

abalone (1980-81, 1992-93, 1996-97, and

1999). The data and information

gathered from these surveys 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 was documented. As

mentioned previously, the state closed

white abalone fishing in 1996, thereby

eliminating the factor most responsible

for the species’ 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, the species may not survive

without human intervention because

most of the remaining individuals are

too far apart to successfully reproduce.

29054 Federal Register / Vol. 66, No. 103 / Tuesday, May 29, 2001 / Rules and Regulations

Mexican Conservation Measures for

White Abalone

At present, NMFS does not know

whether Mexico has closed its white

abalone fishery or instituted other

conservation measures to protect the

species. Pursuant to 50 CFR 424.16,

NMFS provided Mexico with a

notification that it had published a

Federal Register document proposing to

list the white abalone which occurs

along the coast of both the United States

and Mexico, and also invited Mexico to

provide any information or comments it

may have on the proposal. In addition,

NMFS requested that Mexico provide

the agency with information on any

conservation measures it may have

implemented to protect the white

abalone. To date, Mexico has not

responded to this request for comments

and information.

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

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.

NMFS recognizes that many of the

existing conservation measures

described here can serve to protect the

remaining white abalone survivors, but

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.

Listing 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.

The available white abalone landings

data and analysis of fisheryindependent data indicate that over the

last 30 years, white abalone has

declined in abundance 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 help

protect the remaining white abalone,

they do not yet provide for white

abalone conservation at a scale that is

adequate to protect the species.

Based on a review of the best

available information, including the

findings from NMFS’s white abalone

status review, information received in

the petition to list white abalone as an

endangered species, other published

and unpublished information, and

comments on the listing proposal,

NMFS has determined that white

abalone are in danger of extinction

throughout all or a significant portion of

their range, and therefore, warrant

listing as an endangered species

throughout its range in the United States

and 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, outfall construction and

operation, power plant permitting, oil

and gas exploration and development,

etc.

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.

Conservation Measures

Conservation measures that may

apply to listed species include

conservation measures implemented by

states, foreign nations, local

governments, and private organizations.

Also, Federal, 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

this final rule, general protective and

conservation measures that could be

implemented to help conserve white

abalone, but which do not constitute

NMFS’ interpretation of a recovery plan

under section 4(f) of the ESA, include

the following:

Federal Register / Vol. 66, No. 103 / Tuesday, May 29, 2001 / Rules and Regulations 29055

1. Continue the state prohibition on

commercial and recreational white

abalone fishing in California.

2. Continue efforts to 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. Promote protection and

conservation of white abalone in

Mexico.

Take Guidance

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. 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 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.

Activities that NMFS believes could

potentially harm white abalone, and

result in a violation of ESA section 9

take prohibitions include, but are not

limited to:

1. Coastal development that adversely

affects white abalone (e.g., dredging and

other coastal construction projects).

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.

Applications may be submitted to

NMFS for the purpose 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

See the response to Issue 3 - Need for

Designation of Critical Habitat for a

complete discussion of critical habitat.

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. 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 final

rule is exempt from review under

Executive Order 12866. This final rule

does not contain a collection-ofinformation requirement for the

purposes of the Paperwork Reduction

Act.

Executive Order 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

action, is described in the

SUPPLEMENTARY INFORMATION section of

this document. As NMFS moves

forward with its recovery effort for

white abalone, it intends to continue

engaging in informal and formal

contacts with the State of California,

other affected local or regional entities,

and those engaged in ongoing

conservation efforts for white abalone.

List of Subjects in 50 CFR Part 224

Administrative practice and

procedure, Endangered and threatened

species, Exports, Imports, Reporting and

recordkeeping requirements,

Transportation.

Dated: May 21 2001.

William T. Hogarth,

Acting Assistant Administrator for Fisheries,

National Marine Fisheries Service.

For the reasons set out in the

preamble, 50 CFR part 224 is amended

to read as follows:

PART 224—ENDANGERED MARINE

AND ANADROMOUS SPECIES

1. The authority citation for part 224

continues to read as follows:

Authority: 16 U.S.C. 1531-1543 and 16

U.S.C. 1361 et seq.

2. In § 224.101, 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. 01–13430 Filed 5–25–01; 8:45 am]

BILLING CODE 3510–22–S