Endangered and threatened species: Findings on petitions, etc.— White abalone,

[Federal Register: September 24, 1999 (Volume 64, Number 185)]

[Proposed Rules]

[Page 51725-51727]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr24se99-41]

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.

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

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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. 99-24961Filed9-23-99; 8:45 am]

BILLING CODE 3510-22-F