[Federal Register Volume 64, Number 185 (Friday, September 24, 1999)]
[Proposed Rules]
[Pages 51725-51727]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-24961]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223 and 224

[Docket No. 990910253-9253-01; I.D. 073099D]
RIN 0648-AM90


Endangered and Threatened Wildlife and Plants; 90-Day Finding for 
a Petition to List White Abalone (Haliotis sorenseni) as Endangered

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

ACTION: Notice of petition finding; request for information and 
comments.

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SUMMARY: NMFS has received a petition to list white abalone (Haliotis 
sorenseni) as an endangered species on an emergency basis and to 
designate critical habitat under the Endangered Species Act (ESA). NMFS 
finds that the petition presents substantial scientific and commercial 
information indicating that the request for listing may be warranted. 
Therefore, NMFS is conducting a status review to determine whether the 
petitioned action is warranted. To assure that the review is 
comprehensive, NMFS is soliciting information and data regarding this 
species and potential critical habitat from any interested party. We 
will use information received during the comment period, and other 
information, in our review of the status of white abalone. The petition 
does not present substantial evidence to warrant the listing of white 
abalone on an emergency basis at this time.

DATES: Comments and information must be received by November 23, 1999.

ADDRESSES: Requests for copies of the petition and comments regarding 
white abalone should be submitted to Irma Lagomarsino, Division Manager 
for Protected Resources, Southwest Region, NMFS, 501 W. Ocean Blvd., 
Suite 4200, Long Beach, CA, 90802-4213. The petition and supporting 
data are available for public inspection, by appointment, Monday 
through Friday at the address above.

FOR FURTHER INFORMATION CONTACT: Irma Lagomarsino, NMFS Southwest 
Region, 562/980-4016; Marta Nammack, NMFS Office of Protected 
Resources, 301/713-1401.

SUPPLEMENTARY INFORMATION:

Background

    Based on information indicating major declines in the abundance of 
white abalone, NMFS designated the white abalone, a marine 
invertebrate, as a candidate species under the Endangered Species Act 
of 1973, as amended (16 U.S.C. 1531 et seq.) on July 14, 1997 (62 FR 
37560). In August 1998, NMFS contracted with Scripps Institution of 
Oceanography for a review of the biological status of white abalone and 
current and historical impacts to the species. NMFS received this 
status review on April 21, 1999. In order to obtain an independent peer 
review of the contracted status review, NMFS requested three non-
federal scientists to review and report on the scientific merits of the 
document. The scientists will submit their anonymous reviews by the end 
of August 1999.
    Section 4 of the ESA contains provisions allowing interested 
persons to petition the Secretary of the Interior or the Secretary of 
Commerce (Secretary) to add a species to or remove a species from the 
List of Endangered and Threatened Wildlife and to

[[Page 51726]]

designate critical habitat. On April 29, 1999, NMFS received a petition 
from the Center for Biological Diversity and the Southwest Center for 
Biological Diversity to list white abalone as an endangered species on 
an emergency basis and designate critical habitat under the ESA.
    On May 17, 1999, NMFS received a second petition to list white 
abalone as an endangered species throughout its range and to designate 
critical habitat under the ESA from the Marine Conservation Biology 
Institute, Abalone and Marine Resources Council, Sonoma County Abalone 
Network, Asociacion Interamericana para la Defensa del Ambiente, 
Channnel Islands Marine Resource Institute, Proteus SeaFarms 
International, Environmental Defense Fund and Natural Resources Defense 
Council. NMFS will treat this second request as supplemental 
information to the first petition. Section 4(b)(3)(A) of the Endangered 
Species Act (16 U.S.C. 1531-1544) requires that the NMFS make a finding 
on whether a petition to list, delist, or reclassify a species presents 
substantial scientific or commercial information to indicate that the 
petitioned action may be warranted. In determining whether substantial 
information exists for a petition to list a species, NMFS will take 
into account information submitted with and referenced in the petition 
and all other information readily available in NMFS' files. To the 
maximum extent practicable, this finding is to be made within 90 days 
of the receipt of the petition, and the finding is to be published 
promptly in the Federal Register. If NMFS finds that a petition 
presents substantial information indicating that the requested action 
may be warranted, section 4(b)(3)(B) of the ESA requires NMFS to make a 
finding as to whether or not the petitioned action is warranted within 
1 year of the receipt of the petition.
    The definition of ``species'' in section 3(16) of the ESA does not 
provide for distinct population segments of invertebrate species to be 
listed under the ESA. As a result, the white abalone would have to be 
listed throughout its entire range, including Mexico, if the listing is 
found to be warranted. In contrast, pursuant to 50 CFR 424.12(h), any 
critical habitat designated for white abalone may not include Mexico.
    The Secretary may, at any time, issue a regulation adding a species 
to the list regarding to any emergency that poses a significant risk to 
the well-being of a species under section 4(b)(7) of the ESA. Such 
rules will, at the discretion of the Secretary, take effect immediately 
on publication in the Federal Register and detail the reasons for an 
emergency listing.

Finding

    NMFS finds that the petitioners and comments on the petition 
present substantial scientific and commercial information indicating 
that a listing may be warranted, based on the criteria specified in 50 
CFR 424.14(b)(2). Although a positive 90-day finding is not a decision 
to list a species, under section 4(b)(3)(A) of the ESA, this finding 
requires that a review of the status of white abalone be completed 
within 12 months of receiving the petition (by April 28, 2000) to 
determine whether the petitioned action is warranted.

Emergency Listing

    The petitioners express concern about the decline of white abalone 
from its original abundance and believe that this decline constitutes 
an emergency posing a significant risk to the well-being of the 
species. Consequently, the petitioners conclude that white abalone will 
go extinct within 10 years unless immediate measures are taken to 
restore the species. For these reasons, the petitioners request that 
white abalone be listed as an endangered species on an emergency basis 
under the ESA.
    NMFS finds that there is not substantial evidence to warrant 
listing white abalone on an emergency basis under the ESA and believes 
that the normal rulemaking procedures are sufficient and appropriate 
for the protection of white abalone. Based on NMFS' review of the 
petition and on other available information, we believe the decline of 
white abalone is primarily the result of over-harvesting in the early 
1970s. Regulations limiting abalone harvest were instituted by 
California as early as the 1880s and later included restrictions on 
minimum size, harvest rate, and timing of harvest. The State of 
California closed its commercial and recreational white abalone 
fisheries in March 1996 and the best available information indicates 
that white abalone habitat is not currently at risk from destruction or 
modification.
    Because fishery-independent assessment surveys of white abalone 
abundance have been limited in number and spatial coverage, a peer 
review of the NMFS-funded status review is necessary to determine 
whether previous sampling adequately represents the current density of 
white abalone. Since 80 percent of the historical white abalone 
landings in California were taken from San Clemente Island, the 
northern Channel Islands may never have supported high densities of 
white abalone. Thus, the estimate of white abalone abundance throughout 
its range using density estimates only from the surveys in the northern 
Channel Islands may not provide representative estimates of current 
abundance.
    Thus, NMFS concludes that there is no emergency posing a 
significant risk to the well-being of the species. For these reasons, 
NMFS is not publishing a regulation to list white abalone as an 
endangered species on an emergency basis at this time.

Listing Factors and Basis for Determinations

    Under section 4(a)(1) of the ESA, a species can be determined to be 
endangered or threatened for any of the following reasons: (1) The 
present or threatened destruction, modification, or curtailment of its 
habitat or range; (2) overutilization for commercial, recreational, 
scientific, or educational purposes; (3) disease or predation; (4) the 
inadequacy of existing regulatory mechanisms; or (5) other natural or 
manmade factors affecting its continued existence. Listing 
determinations are made solely on the best scientific and commercial 
data available, after conducting a review of the status of the species 
and taking into account efforts made by the State or foreign nations to 
protect such species.

Information Solicited

    To ensure that the white abalone status review is complete and 
based on the best available scientific and commercial data, NMFS is 
soliciting information and comments on whether the white abalone is 
endangered or threatened based on the above listing criteria. 
Specifically, NMFS is soliciting information in the following areas: 
historical and current abundance of white abalone, current spatial 
distribution, trends in abundance, historic harvest levels, and 
possible threats to genetic integrity or demography due to reduced 
numbers of white abalone individuals. NMFS is also soliciting 
information regarding factors that have contributed to the decline of 
white abalone and any efforts being made to protect the species. This 
information should address white abalone throughout its range, from 
Point Conception, California, U.S.A., to between Punta Tortugas and 
Punta Abreojos, Baja California, Mexico.

Critical Habitat

    NMFS is also requesting information on areas that may qualify as 
critical habitat for white abalone in California. Areas that include 
the physical and

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biological features essential to the recovery of the species should be 
identified. Areas outside the present range should also be identified 
if such areas are essential to the recovery of the species. Essential 
features should include, but are not limited to: (1) Space for 
individual growth and for normal behavior; (2) food, water, air, light, 
minerals, or other nutritional or physiological requirements; (3) cover 
or shelter; (4) sites for reproduction and development of offspring; 
and (5) habitats that are protected from disturbance or are 
representative of the historical, geographical, and ecological 
distributions of the species.
    For areas potentially qualifying as critical habitat, NMFS is 
requesting the following information describing: (1) The activities 
that affect the area or could be affected by the designation and (2) 
the economic costs and benefits of additional requirements of 
management measures likely to result from the designation.
    The economic cost to be considered in the critical habitat 
designation under the ESA is the probable economic impact of the 
critical habitat designation upon proposed or ongoing activities (50 
CFR 424.19). NMFS considers the incremental costs specifically 
resulting from a critical habitat designation that are above the 
economic effects attributable to listing the species. Economic effects 
attributable to listing include actions resulting from section 7 
consultations under the ESA to avoid jeopardy to the species and from 
the taking prohibitions under section 9 of the ESA. Comments concerning 
economic impacts should distinguish the costs of listing from the 
incremental costs that can be directly attributed to the designation of 
specific areas as critical habitat.
    Data, information, and comments should include: (1) Supporting 
documentation, such as maps, bibliographic references, or reprints of 
pertinent publications, and (2) the person's name, address, and 
association, institution, or business.

    Authority: 16 U.S.C. 1531 et seq.; 16 U.S.C. 742a et seq.; 31 
U.S.C. 9701; 16 U.S.C. 1361 et seq.

    Dated: September 21, 1999.
Andrew A. Rosenberg,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 99-24961 Filed 9-23-99; 8:45 am]
BILLING CODE 3510-22-F