[Federal Register Volume 66, Number 103 (Tuesday, May 29, 2001)]
[Rules and Regulations]
[Pages 29046-29055]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-13430]



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 

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 

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.


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

[[Page 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 
    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 
    In the laboratory, settlement of white abalone larvae occurred 
after 9 to 10 days at 15  deg.C (59  deg.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, 

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 

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

[[Page 29048]]

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 Sec.  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

[[Page 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 
    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 fishery-independent and fishery-
dependent data and by using an estimate of the total area of white 
abalone habitat within the species range. Based on a historical range 
between Point Conception and Punta Eugenia and on the assumption that 3 
percent of the area within depth contours of 25 to 65 m (82-213 ft) is 
rocky reef habitat, Davis et al. (1998) 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 pre-
exploitation 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 fishery-dependent 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 pre-
exploitation abundance must have been greater because some white 
abalone were harvested in subsequent years, some animals were lost to 
natural mortality, and white abalone from the recreational catch were 
not included in the estimate. Not all of the pre-exploitation estimates 
account for cryptic white abalone.
    b. Current Abundance. Using a research submersible vessel, the 
first deep-reef surveys for white abalone were conducted near Santa 
Barbara, Anacapa, and Santa Cruz Islands, and on Osborn Bank in 1996 
and 1997 (Davis et al., 1998). After searching 77,070 m\2\ (829,601 
ft\2\) of rocky reef between 27 and 67 m (89 and 220 ft) depth, only 
nine live white abalone were found. Assuming that population densities 
of white abalone estimated from these surveys (i.e., 0.000167 white 
abalone/m\2\, 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/
m\2\ 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'

[[Page 29050]]

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 
    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 
    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 
    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 deep-living 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-
per-unit-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, 
    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.

[[Page 29051]]

    The results of the series of fishery-independent 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 free-swimming 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/m\2\. 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/m\2\) 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.

[[Page 29052]]

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 land-
based 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 slow-moving bottom dwellers with external 
fertilization, abalone are particularly susceptible to local and 
subsequent serial depletion. If female abalone are not within a few 
meters of males when they both spawn, the sperm will be too diluted by 
diffusion to fertilize the eggs (Davis et al., 1996). As local abalone 
density declines, the probability of successful fertilization and 
subsequent recruitment 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 Bank-Bishop 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

[[Page 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'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, 
    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.

[[Page 29054]]

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) re-establish refugia of 
self-sustaining brood stocks in the wild. The Consortium has also 
initiated an outreach program to raise public awareness of the status 
of white abalone and restoration efforts. Particularly challenging is 
the ability to increase public awareness of a relatively small and 
unknown marine invertebrate. Because nearly 25 years of artificially 
producing and outplanting juvenile and younger red abalone in 
California have failed to demonstrate effective population restoration, 
the Consortium is advocating that captive-born white abalone be reared 
until 4 years of age (>100 mm or 4 inches). Federal, state, and private 
grants and 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 fishery-
independent 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 
    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:

[[Page 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 
    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 


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-of-
information requirement for the purposes of the Paperwork Reduction 

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, 

    Dated: May 21 2001.
William T. Hogarth,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 

    For the reasons set out in the preamble, 50 CFR part 224 is amended 
to read as follows:


    1. The authority citation for part 224 continues to read as 

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

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

Sec.  224.101  Enumeration of endangered marine and anadromous species.

* * * * *
    (d) Marine invertebrates. White abalone (Haliotis sorenseni).
[FR Doc. 01-13430 Filed 5-25-01; 8:45 am]