[Federal Register Volume 78, Number 222 (Monday, November 18, 2013)]
[Proposed Rules]
[Pages 69033-69039]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-27553]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Ocean and Atmospheric Administration

50 CFR Parts 223 and 224

[Docket No. 130808698-3698-01]
RIN 0648-XC809


Endangered and Threatened Wildlife; 90-Day Finding on Petitions 
To List the Pinto Abalone as Threatened or Endangered Under the 
Endangered Species Act

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

ACTION: 90-day petition findings, request for information, and 
initiation of status review.

-----------------------------------------------------------------------

SUMMARY: We, NMFS, announce 90-day findings on two petitions received 
to list the pinto abalone (Haliotis kamtschatkana) as a threatened or 
endangered species under the Endangered Species Act (ESA) and to 
designate critical habitat concurrently with the listing. We find that 
the petitions and information in our files present substantial 
scientific or commercial information indicating that the petitioned 
action may be warranted. We will conduct a status review of the species 
to determine if the petitioned action is warranted. To ensure that the 
status review is comprehensive, we are soliciting scientific and 
commercial information pertaining to this species from any interested 
party.

DATES: Information and comments on the subject action must be received 
by January 17, 2014.

ADDRESSES: You may submit comments, information, or data, identified by 
``NOAA-NMFS-2013-0158'' by any one of the following methods:
     Electronic Submissions: Submit all electronic comments via 
the Federal eRulemaking Portal http://www.regulations.gov. To submit 
comments via the e-Rulemaking Portal, first click the ``submit a 
comment'' icon, then enter ``NOAA-NMFS-2013-0158'' in the keyword 
search. Locate the document you wish to comment on from the resulting 
list and click on the ``Submit a Comment'' icon on the right of that 
line.
     Mail or hand-delivery: Protected Resources Division, West 
Coast Region, NMFS, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 
90802-4213.
    Instructions: All comments received are a part of the public record 
and may be posted to http://www.regulations.gov without change. All 
personally identifiable information (for example, name, address, etc.) 
voluntarily submitted by the commenter may be publicly accessible. Do 
not submit confidential business information or other information you 
wish to protect from public disclosure. NMFS will accept anonymous 
comments. Attachments to electronic comments will be accepted in 
Microsoft Word, Excel, Corel WordPerfect, or Adobe PDF file formats 
only.

FOR FURTHER INFORMATION CONTACT: Melissa Neuman, NMFS, West Coast 
Region, (562) 980-4115; or Lisa Manning, NMFS, Office of Protected 
Resources, (301) 427-8466.

SUPPLEMENTARY INFORMATION:

Background

    On July 1, 2013, we received a petition from the Natural Resources 
Defense Council (NRDC) to list the pinto abalone (Haliotis 
kamtschatkana) as threatened or endangered under the ESA. The 
petitioners also requested that critical habitat be designated for the 
species under the ESA. On August 5, 2013, we received a second 
petition, filed by the Center for Biological Diversity (CBD) to list 
the pinto abalone under the ESA and designate critical habitat. Both 
petitions bring forth much of the same or related factual information 
on the biology and ecology of pinto abalone, and raise several similar 
issues regarding potential factors affecting this species. As a result, 
we are considering both petitions simultaneously in this 90-day 
finding. Copies of the petitions are available upon request (see 
ADDRESSES, above).

ESA Statutory, Regulatory, and Policy Provisions and Evaluation 
Framework

    Section 4(b)(3)(A) of the ESA of 1973, as amended (16 U.S.C. 1531 
et seq.), requires, to the maximum extent practicable, that within 90 
days of receipt of a petition to list a species as threatened or 
endangered, the Secretary of Commerce make a finding on whether that 
petition presents substantial scientific or commercial information 
indicating that the petitioned action may be warranted, and to promptly 
publish such finding in the Federal Register (16 U.S.C. 1533(b)(3)(A)). 
When it is found that substantial scientific or commercial information 
in a petition indicates the petitioned action may be warranted (a 
``positive 90-day finding''), we are required to promptly commence a 
review of the status of the species concerned, during which we will 
conduct a comprehensive review of the best available scientific and 
commercial information. In such cases, we conclude the status review 
with a finding published in the Federal Register as to whether or not 
the petitioned action is warranted within 12 months of receipt of the 
petition. Because the finding at the 12-month stage is based on a 
thorough review of the available information, as compared to the more 
limited scope of review at the 90-day stage, a ``may be warranted'' 
finding does not prejudge the outcome of the status review.
    Under the ESA, a listing determination may address a species, which 
is defined to also include any subspecies and, for vertebrate species, 
any distinct population segment (DPS) which interbreeds when mature (16 
U.S.C. 1532(16)). A joint NMFS-U.S. Fish and Wildlife Service (USFWS) 
(jointly, ``the Services'') policy clarifies the agencies' 
interpretation of the phrase ``distinct population segment'' for the 
purposes of listing, delisting, and reclassifying a species under the 
ESA (61 FR 4722; February 7, 1996). A species, subspecies, or DPS is

[[Page 69034]]

``endangered'' if it is in danger of extinction throughout all or a 
significant portion of its range, and ``threatened'' if it is likely to 
become endangered within the foreseeable future throughout all or a 
significant portion of its range (16 U.S.C. 1532(6) and (20)). Pursuant 
to the ESA and our implementing regulations, we determine whether 
species are threatened or endangered based on any one or a combination 
of the following factors: (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; and (5) any other natural or manmade 
factors affecting the species' continued existence (16 U.S.C. 
1533(a)(1), 50 CFR 424.11(c)).
    ESA implementing regulations define ``substantial information'' in 
the context of reviewing a petition to list, delist, or reclassify a 
species as the amount of information that would lead a reasonable 
person to believe that the measure proposed in the petition may be 
warranted (50 CFR 424.14(b)). In evaluating whether substantial 
information is contained in a petition, the Secretary must consider 
whether the petition: (1) Clearly indicates the administrative measure 
recommended and gives the scientific and any common name of the species 
involved; (2) contains detailed narrative justification for the 
recommended measure, describing, based on available information, past 
and present numbers and distribution of the species involved and any 
threats faced by the species; (3) provides information regarding the 
status of the species over all or a significant portion of its range; 
and (4) is accompanied by the appropriate supporting documentation in 
the form of bibliographic references, reprints of pertinent 
publications, copies of reports or letters from authorities, and maps 
(50 CFR 424.14(b)(2)).
    At the 90-day stage, we evaluate the petitioners' request based 
upon the information in the petition, including its references and the 
information readily available in our files. We do not conduct 
additional research and we do not solicit information from parties 
outside the agency to help us in evaluating the petition. We will 
accept the petitioners' sources and characterizations of the 
information presented if they appear to be based on accepted scientific 
principles, unless we have specific information in our files indicating 
the petition's information is incorrect, unreliable, obsolete, or 
otherwise irrelevant to the requested action. Information that is 
susceptible to more than one interpretation or that is contradicted by 
other available information will not be dismissed at the 90-day finding 
stage, so long as it is reliable and a reasonable person would conclude 
it supports the petitioners' assertions. Conclusive information 
indicating the species may meet the ESA's requirements for listing is 
not required to make a positive 90-day finding. We will not conclude 
that a lack of specific information negates a positive 90-day finding 
if a reasonable person would conclude that the uncertainty from the 
lack of information suggests an extinction risk of concern for the 
species at issue.
    To make a 90-day finding on a petition to list a species, we 
evaluate whether the petition presents substantial scientific or 
commercial information indicating the subject species may be either 
threatened or endangered, as defined by the ESA. First, we evaluate 
whether the information presented in the petition, along with the 
information readily available in our files, indicates that the 
petitioned entity constitutes a ``species'' eligible for listing under 
the ESA. Next, we evaluate whether the information indicates that the 
species faces an extinction risk that is cause for concern; this may be 
indicated in information expressly discussing the species' status and 
trends, or in information describing impacts and threats to the 
species. We evaluate any information on specific demographic factors 
pertinent to evaluating extinction risk for the species (e.g., 
population abundance and trends, productivity, spatial structure, age 
structure, sex ratio, diversity, current and historical range, habitat 
integrity or fragmentation), and the potential contribution of 
identified demographic risks to extinction risk for the species. We 
then evaluate the potential links between these demographic risks and 
the causative impacts and threats identified in section 4(a)(1).
    Information presented on impacts or threats should be specific to 
the species and should reasonably suggest that one or more of these 
factors may be operative threats that act or have acted on the species 
to the point that it may warrant protection under the ESA. Broad 
statements about generalized threats to the species, or identification 
of factors that could negatively impact a species, do not constitute 
substantial information indicating that listing may be warranted. We 
look for information indicating that not only is the particular species 
exposed to a factor, but that the species may be responding in a 
negative fashion; then we assess the potential significance of that 
negative response.
    Many petitions identify risk classifications made by non-
governmental organizations, such as the International Union on the 
Conservation of Nature (IUCN), the American Fisheries Society, or 
NatureServe, as evidence of extinction risk for a species. Risk 
classifications by other organizations or made under other Federal or 
state statutes may be informative, but the classification alone does 
not provide the rationale for a positive 90-day finding under the ESA. 
For example, as explained by NatureServe, their assessments of a 
species' conservation status do ``not constitute a recommendation by 
NatureServe for listing under the U.S. Endangered Species Act'' because 
NatureServe assessments ``have different criteria, evidence 
requirements, purposes and taxonomic coverage than government lists of 
endangered and threatened species, and therefore these two types of 
lists should not be expected to coincide'' (http://www.natureserve.org/prodServices/statusAssessment.jsp). Thus, when a petition cites such 
classifications, we will evaluate the source of information that the 
classification is based upon in light of the standards on extinction 
risk and impacts or threats discussed above.

Distribution and Life History of the Pinto Abalone

    The pinto abalone is a marine gastropod mollusc and a member of the 
family Haliotidae and the genus Haliotis. Of the seven species of 
abalone found along the west coast of North America (Geiger, 1999), 
pinto abalone have the broadest latitudinal range extending from Sitka 
Island, Alaska to Baja California, Mexico (Campbell, 2000), and it is 
the predominant abalone found in Washington and Alaska, and in British 
Columbia, Canada. Two subspecies of pinto abalone have been recognized 
by taxonomists: the northern form (Haliotis kamtschatkana 
kamtschatkana) is distributed from Alaska south to Point Conception, 
California; and the southern form, or ``threaded abalone'' (Haliotis 
kamtschatkana assimilis) is distributed from central California to 
Turtle Bay in Baja California, Mexico (Geiger, 1999).
    The pinto abalone's muscular foot is tan and is used to adhere to 
hard substrate and for locomotion. The epipodium (the circular fringe 
of skin around the foot) and tentacles are mottled yellow to dark tan 
with vertical banding patterns. The underside of the foot is pearly 
white. The outer surface of the shell is characterized by irregular

[[Page 69035]]

lumps, mottled red and/or green coloration, and 3-6 raised, open 
respiratory pores. Paralleling the respiratory pores is a deep groove 
(Stevick, 2010).
    Pinto abalone occur in intertidal and subtidal habitats (0-20m 
depth, most commonly 0-10m depth; Rothaus et al., 2008) that vary with 
respect to exposure and contain hard substrate (bedrock and boulders/
cobble) with ample quantities of benthic diatoms, and micro- and macro-
algae. Pinto abalone are found in areas with little freshwater 
influence (salinity >= 30 parts per thousand), and can tolerate wide 
ranges in temperature, from 2 to 24 degrees Celsius, based on 
laboratory experiments (COSEWIC, 2009).
    Pinto abalone exhibit separate sexes and are thought to reach 
sexual maturity at sizes ranging between 50-70 mm shell length, which 
correspond to ages ranging between 2 to 5 years (Rothaus et al., 2008; 
COSEWIC, 2009). Adults cluster in spawning aggregations and broadcast 
sperm or eggs into the water sometime between spring and late summer 
(Campbell et al., 1992; Stevick, 2010). This type of spawning strategy 
depends on densely aggregated adults (e.g., within 1-2 meters of 
conspecifics) to achieve the high gamete densities needed for 
successful fertilization (Davis, 1996; Babcock and Keesing, 1999). 
Larvae continue to develop in the water column over a 5- to 10-day 
period (perhaps up to 13 days at cooler temperatures) before settling 
on to hard substrate in water that is slightly deeper than where 
spawning adults aggregate (Rothaus et al., 2008; COSEWIC, 2009). This 
relatively short dispersive phase combined with hydrodynamic conditions 
during the time of spawning may limit dispersal distances (Bouma, 
2007). Once settled onto rocky substrata, typically encrusted with 
coralline algae, pinto abalone juveniles consume benthic diatoms, 
bacterial films, and microalgae (COSEWIC, 2009). Adults feed on benthic 
macroalgae, including drift kelp (COSEWIC, 2009). Growth rates can vary 
depending on food availability, water temperature, and other 
environmental factors (COSEWIC, 2009). Pinto abalone are long-lived 
(approximately 20-50 years) and reach a maximum shell length of 14 to 
16.5 cm (Shepherd et al., 2000; Rothaus et al., 2008). Pinto abalone 
are preyed upon by a wide variety of marine predators including sea 
stars, fishes, octopus, the southern sea otter, river otters and Cancer 
crabs.

Status and Abundance Trends of the Pinto Abalone

    The pinto abalone has been a target species for recreational and/or 
commercial fisheries in Alaska, British Columbia, Washington, and 
California. A full discussion of the impacts of fisheries on pinto 
abalone populations is discussed in the Overutilization for Commercial, 
Recreational, Scientific, or Educational Purposes listing factor 
section below. In summary, fisheries-dependent information suggests 
declines ranging between 80-99 percent throughout portions of the 
species' range (Woodby et al., 2000; Jamieson, 1999; Rogers-Bennett, 
2007).
    Fishery-independent information from Alaska, British Columbia, 
Washington, and California corroborate the declining trends suggested 
by landings data. Qualitative observations during dive surveys 
conducted in Southeastern Alaska from 1988-1999, suggest a continued, 
steady decline in pinto abalone densities (Woodby et al., 2000). In 
British Columbia, fishery-independent surveys confirmed that natural 
stock rebuilding did not occur after fishery closure in 1990 and some 
populations further declined (Campbell, 2000; COSEWIC, 2009). Densities 
of mature pinto abalone on the central coast of British Columbia and in 
the Queen Charlotte Islands have declined by approximately 80-90 
percent since 1978 (COSEWIC 2009). In Washington, fishery-independent 
surveys at index stations in the San Juan Archipelago indicate that 
pinto abalone abundance has declined by 83 percent, density has 
declined from 0.18 to 0.05 abalone per meter squared overall, and mean 
shell length has increased, suggesting recruitment failure (Rothaus et 
al., 2008; Essington et al., 2011). There is very little information on 
population status of pinto abalone in Oregon (Rogers-Bennett 2007), and 
the petitioners suspect that they have never occurred in abundances 
large enough to support fishing activity there. In California, 
comparison of pinto abalone numbers in the early 1970s to the 1999-2003 
period at three index sites in northern California showed a decline of 
99 percent, (Rogers-Bennett, 2007) and the species is currently rare 
throughout California (Rogers-Bennett et al., 2002). In Mexico, 
current-day abalone landings range between 350-400 metric tons per 
year, an order of magnitude lower than catches recorded in the mid-
1900s. The incidental collection of the southern subspecies of pinto 
abalone in the Mexican fishery is unknown as is the species' status and 
abundance trends.

Analysis of the Petitions

    The two petitions request the same action, to list the pinto 
abalone as endangered or threatened under the ESA and to designate 
critical habitat for the species. In addition, NRDC requested the 
following alternative to listing the species throughout its range:
    ``In the alternative, NMFS should list the southern subspecies of 
pinto abalone as endangered, and identify distinct population segments 
(DPSs) of the northern subspecies of pinto abalone and list such DPSs 
as endangered or threatened.''
    The ESA allows for the listing of species and subspecies of 
invertebrates, but does not allow for listing of invertebrate DPSs. 
Thus, NMFS does not have the authority to list DPSs of pinto abalone or 
to list DPSs of either of its two recognized subspecies, as requested 
by the NRDC.
    The petitions contain similar information on the species, including 
the taxonomy, species description, geographic distribution, habitat, 
population status and trends, and factors contributing to the species' 
decline. Both petitioners identified historical overfishing, current 
low densities resulting in low recruitment rates, and poaching as the 
primary factors contributing to the decline of pinto abalone. The 
petitioners state that predation, inadequate state fishing regulations, 
climate change, and ocean acidification also pose serious threats to 
the species' persistence.
    In the following sections, we analyze the information presented by 
the petitions and readily available in our files regarding the specific 
ESA section 4(a)(1) factors (hereafter, ``listing factors'') affecting 
the population's risk of extinction.

The Present or Threatened Destruction, Modification, or Curtailment of 
the Species' Habitat or Range

    Both petitions suggest that increases in atmospheric CO2 
and other greenhouse gases that have occurred since the industrial era 
began in the 1700s pose a serious emerging threat to pinto abalone. 
Specifically, the petitioners highlight impacts of the following 
stressors that are linked to greenhouse gas emissions: increasing sea 
surface temperatures, increased incursions of low salinity water into 
coastal areas (Essington et al., 2011), sea level rise, and ocean 
acidification. The petitioners include greenhouse gas emissions and its 
associated impacts under different listing factors. The NRDC discusses 
greenhouse gas emissions and associated impacts in the

[[Page 69036]]

Other Natural or Manmade Factors listing factor section, while CBD 
includes discussions of this threat under this listing factor, and the 
Disease and Predation and Inadequate Regulatory Mechanisms listing 
factor sections. We will summarize the information presented by the 
petitioners and in our files only here, but recognize that climate 
change and its associated impacts could also be included in the Other 
Natural or Manmade Factors section.
    Direct impacts of water quality parameters associated with climate 
change on pinto abalone were evident in a study conducted by Bouma 
(2007), whereby larvae experienced higher mortality rates at decreased 
salinities (<26 practical salinity units) and elevated water 
temperatures (>21[deg] Celsius). Recent studies by Crim et al. (2011) 
and Friedman et al. (2012) suggest that elevated levels of dissolved 
CO2 in seawater result in negative impacts to shell 
development and survival of pinto abalone larvae. In addition, elevated 
levels of dissolved CO2 and low pH have been observed in 
coastal areas along the coasts of British Columbia and Washington 
(Feely et al., 2012; Freidman et al., 2012), suggesting that pinto 
abalone populations could be currently experiencing the effects of 
ocean acidification. The petitioners are also concerned about the 
simultaneous effects of multiple stressors that are associated with 
climate change. For example, reddish-rayed abalone (H. coccoradiata) 
experienced lower than expected shell calcification rates when exposed 
to elevated temperatures and low pH than those observed when larvae 
were exposed to each stressor in isolation (Byrne et al., 2011). 
Indirect impacts from climate-mediated habitat changes may reduce the 
availability of food sources and habitats for pinto abalone, especially 
in the form of kelp beds and coralline algae (Tomascik and Holmes, 
2003; Rogers-Bennett, 2007; COSEWIC, 2009; Rogers-Bennett et al., 
2011).
    We conclude that the information in the petitions and in our files 
suggests that climate change and its associated impacts, especially low 
salinity, elevated water temperatures, and ocean acidification may 
already be impacting pinto abalone populations in some areas and may 
impede the continued existence of the species in to the future. 
However, additional information regarding predicted rates of change in 
these parameters by area, including error terms, are necessary to 
evaluate future impacts to pinto abalone survival. The information 
provided on the indirect effects of climate change on the availability 
of food sources and suitable settlement habitat is insufficient to 
evaluate whether these factors may be reducing the quality or quantity 
of pinto abalone habitat enough such that listing may be warranted.

Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    Information from both petitions suggests that fisheries have 
contributed historically to population declines of pinto abalone 
throughout their range. Pinto abalone were harvested in commercial 
fisheries in Alaska, British Columbia, and California, until their 
closures in 1995, 1990 and 1996, respectively. In Alaska, the fishery 
began in the mid-1960s and operated initially with very few 
restrictions (Woodby et al., 2000). As landings fell dramatically in 
the early 1980s, a subsequent rise in the ex-vessel value ensued, 
possibly leading to increased fishing pressure that was not offset by 
increasingly stringent catch guidelines and minimum size limits (Woodby 
et al., 2000; Herbert, 2011). As a result, catch-per-unit-effort fell 
by 90 percent between the peak of the fishery in 1979 (172 metric tons) 
and 1995, the last year of the fishery (Woodby et al., 2000). The 
commercial fishery in British Columbia began in the early 1900s with 
little or no regulation. The fishery was small and sporadic until the 
1950s, when effort increased due to the introduction of SCUBA gear and 
other improved fishing technologies (e.g. freezing) (Muse 1998). 
Landings peaked in the 1970's at over 400 metric tons per year (Sloan 
and Breen, 1988; Campbell, 2000) and by the mid-1980s, landings 
declined by roughly 88 percent (Jamieson, 1999). Despite regulations 
such as limited entry, quotas, size limits, and total allowable catch, 
abalone depletion continued and the fishery was closed in 1990 (Muse 
1998) due to stock declines and conservation concerns (Jamieson, 2001). 
Commercial abalone fishing in California dates back to the 1950s, when 
Chinese-Americans began an intensive fishery in rocky intertidal areas. 
The fishery extended in to subtidal areas with the advent of SCUBA in 
the 1900s. Landings ranged between about 1,800-2,200 metric tons 
annually from 1952-1968, declined rapidly through the early 1980s by an 
order of magnitude, and gradually and steadily declined another order 
of magnitude until the fishery closed in 1996 (CDFW 2005). Pinto 
abalone were not targeted by the California fishery; however, 
approximately 21,000 animals belonging to the southern subspecies were 
removed between 1969-1995 (Rogers-Bennett et al., 2002). Pinto abalone 
declines of approximately 90 percent were estimated using historical 
data (both fishery-dependent and -independent data) to back-calculate 
historical baseline abundances (Rogers-Bennett et al., 2002). In 
Mexico, abalone fishing began at the end of the 19th century, peaked in 
the mid-20th century at 6,000 metric tons of meat per year, and 
currently ranges between 350 to 400 metric tons per year (OECD, 2012). 
The current-day, small-scale fishery is located on the western coast of 
the Baja California Peninsula and includes green (H. fulgens), pink (H. 
corrugata), black (H. cracherodii), white (H. sorenseni), and red (H. 
rufescens) abalone (OECD, 2012). This fishery is primarily based upon 
two species, the green and pink abalone, which together represent over 
95 percent of the total catch. The Mexican government classified this 
fishery as deteriorated in 1996 largely because of declines in green 
abalone populations. Although the southern subspecies of pinto abalone 
is not mentioned as being a part of this fishery, it is likely that the 
species has been incidentally captured in Mexico.
    Recreational and/or subsistence fisheries were conducted in British 
Columbia, Washington and California until their closures in 1990, 1994 
and 1997, respectively. Unfortunately, annual harvest information for 
these recreational fisheries was either not recorded or is unavailable 
(Rothaus et al., 2008). Currently, Alaska permits subsistence and 
personal use fishing with a catch limit of up to five pinto abalone per 
day and a minimum shell length of 3.5 inches. In Oregon, a recreational 
fishery remains with limits of one abalone per day, per person, and 
five per year (ODFW UD).
    The petitioners assert that pinto abalone populations in many areas 
throughout their range have not recovered despite commercial and 
recreational fishery closures and more restrictive regulations for 
remaining subsistence, personal use and recreational fisheries. The 
petitioners argue that historical fishing reduced pinto abalone 
densities to levels that were below those necessary for successful 
fertilization in many areas.
    We conclude that the petitions and information in our files present 
substantial evidence that fisheries throughout a large portion of the 
species' range had an impact on the viability of pinto abalone 
populations through density reduction and possibly subsequent 
reproductive failure that may continue today in some areas. This 
information suggests that the impacts of historical fishing may 
continue to affect

[[Page 69037]]

the continued existence of pinto abalone populations, despite the fact 
that the threat itself has been removed. To better evaluate these 
continued impacts, more fishery-independent information on abalone 
density, size distributions, and nearest neighbor distances is 
necessary. To further evaluate the potential impact of the current 
subsistence, personal use, recreational, and commercial fisheries in 
Alaska, Oregon, and Mexico, more information regarding the density, 
size distributions, and nearest neighbor distances of pinto abalone 
populations in areas that overlap with fishing effort is necessary.

Disease or Predation

    The CBD petition briefly mentions that pinto abalone are 
susceptible to a protist parasite in aquaculture environments and 
asserts that diseases and parasites do pose risks to abalone in 
general, especially as ocean temperatures rise due to climate change 
impacts. The petition does not provide any additional information to 
support that disease is a factor affecting the species' continued 
existence such that listing may be warranted. Thus, the available 
information is insufficient to evaluate if disease may be affecting the 
continued existence of pinto abalone.
    The petitioners list crabs, octopus, and sea stars as major 
predators of pinto abalone (Griffiths and Gosselin 2008). The NRDC 
believes that pinto abalone face a high level of predation by sea 
otters in Alaska based on information contained within Alaska 
Department of Fish and Game (ADFG, 2013). The NRDC does not believe 
that sea otters represent the main cause of pinto abalone declines in 
other locations because: (1) Pinto abalone populations are still 
declining in areas, especially in British Columbia, where sea otters 
are not present; and (2) the persistence of large animals in Washington 
(most animals are > 100 mm shell length) suggests that predation by sea 
otters (which selectively prey on large abalone) is not having a large 
impact on populations there.
    We conclude that the NRDC petition and information in our files 
present substantial evidence that predation may be having an impact on 
the continued existence of pinto abalone in some areas of the range 
(i.e. by sea otters in Alaska), but not others. Additional information 
regarding sea otter abundance (historical, present, and predicted 
future), predation rates, and prey composition from subtidal areas (25 
meters depth) up into the intertidal zone in Southeastern Alaska and 
Washington is necessary to determine whether sea otter predation is 
contributing to the decline of pinto abalone populations.

Inadequacy of Existing Regulatory Mechanisms

    The petitions assert that the inadequacy of existing Federal, 
state, or international regulatory mechanisms has contributed to the 
continued decline of pinto abalone populations throughout a large 
portion of their range. The petitioners contend that despite Federal, 
state, and international fisheries' closures approximately two decades 
ago, a Federal threatened listing in Canada under the Species at Risk 
Act in 1999 (and upgrading to endangered status in 2009; COESWIC, 
2009), addition to the NOAA Species of Concern List in 2004, the 
development of recovery plans in Canada and California (NRAP, 2003; 
CDFW 2005), an abalone rebuilding strategy implemented in Mexico in 
2000 (OECD, 2012), and stricter measures regulating subsistence, 
personal use, recreational and commercial fisheries where they remain, 
pinto abalone populations continue to decline. The petitioners assert 
that this continued decline is likely the result of multiple stressors 
(i.e. historical overharvest, current harvest, discard mortality, 
poaching, and predation by sea otters) that have occurred or are 
occurring in different combinations, and acting in synergistic ways 
depending on location, to further reduce densities and the reproductive 
potential of remaining pinto abalone populations. The petitioners 
provide evidence to indicate that four of these stressors, historical 
overharvest, current harvest, discard mortality, and poaching, may be 
occurring because of inadequate past and present regulations and lack 
of enforcement of those regulations by state, Federal, and 
international governing bodies.
    The states invoked increasingly protective measures during their 
commercial fisheries (e.g, bag limits, size limits, quotas, limited 
entry) to safeguard pinto abalone populations, but according to the 
petitioners these measures were either not restrictive enough, were not 
followed or enforced, and/or came too late to prevent the species' 
continued decline even after the fisheries were closed. In early 2012, 
Alaska closed its sport fishery and limited the subsistence and 
personal use fisheries to five abalone per day with a minimum shell 
length of 3.5 inches. Pinto abalone may only be collected by hand, 
using snorkel gear, and using abalone irons; the use of compressed air 
has been prohibited since 1997 (Herbert, pers. comm.). The 3.5-inch 
size limit failed to prevent stock collapse in the Alaska commercial 
fishery before its closure (Woodby et al., 2000). The NRDC petition 
suggests that this size limit may be too low to sustain current-day 
subsistence and personal use fishing pressure in addition to other 
stressors such as predation by sea otters and discard mortality. The 
NRDC believes that discard mortality of smaller pinto abalone (many 
abalone are damaged during harvesting) by abalone fishers is a problem 
in areas where abalone harvest is legal.
    Both petitions state that poaching has threatened and continues to 
plague pinto abalone populations throughout their range. In the Pacific 
Northwest, pinto abalone are particularly susceptible to poaching 
because they aggregate in relatively shallow waters, they occur in 
remote and largely unpatrolled coastlines and their market value 
remains high. Authorities in British Columbia have reported 30 abalone 
poaching convictions between 1997 and 2006, and they estimate that this 
only reflects a small percentage (10-20 percent) of the actual poaching 
activity (COSEWIC, 2009). The Organisation for Economic Co-Operation 
and Development (OECD, 2012) reports that even though the abalone 
rebuilding plan in Mexico is entirely focused on controlling fishing 
effort to address fishery decline, disease, climate change, predation, 
poaching, and a lack of fishery surveillance by the Mexican government 
also threaten the recovery of the fishery. A number of cases involving 
the illegal trade of federally protected abalone from Mexico into the 
United States and Canada (white and black in the United States and 
pinto abalone in Canada) have occurred over the last decade (Zetwo, 
pers. communication), indicating that existing regulatory mechanisms in 
Mexico have not eliminated risks to pinto abalone posed by poaching.
    The CBD petition asserts that existing regulatory mechanisms are 
inadequate to address the threats to pinto abalone posed by greenhouse 
gas emissions. CBD argues that in the United States, domestic laws that 
protect the environment are only partially being implemented and 
therefore are not sufficient to reverse predicted increases in 
greenhouse gases in our atmosphere, and will merely slow the rate at 
which predicted increases will occur. On the international stage, 
emission reduction targets have been set and pledges have been made at 
a number of world conferences, but many countries, including the United 
States, have not met their reduction goals. The petition does not 
discuss any specifics regarding what levels of greenhouse gas emissions

[[Page 69038]]

would adequately protect pinto abalone populations from the impacts of 
climate change, or the timeframe over which reductions would need to 
occur in order to safeguard pinto abalone populations. Thus, it is 
unclear the level and extent to which existing regulatory mechanisms 
are inadequate to protect pinto abalone from this specific threat.
    The CBD petition contends that inadequate regulation of commercial 
abalone farms and captive propagation and enhancement programs for 
restoring pinto abalone populations pose risks to wild pinto abalone 
populations including: disease-spread, loss of genetic diversity, and 
reduced fitness. However the petition does not provide any specific 
information that validates their concerns, such as examples of how 
diseases spread by land-based facilities, or that the outplanting of 
captive-raised animals that may be genetically or behaviorally unfit 
has led to the decline of pinto abalone populations. The petition also 
does not explain how inadequate Federal and state regulation of these 
programs has led to the species' decline.
    Based on the information in the petitions and in our files as 
discussed above, we conclude that existing regulatory mechanisms may be 
inadequate to ensure sustainable fishing, minimize incidental 
collection, and sufficiently reduce or eliminate poaching of pinto 
abalone populations. To further evaluate the adequacy of existing 
regulatory mechanisms, more information is needed regarding the 
effectiveness of recent fishing restrictions and the level of poaching 
occurring in the United States, Canada, and Mexico. We conclude that 
while the information presented in the CBD petition suggests that 
regulations regarding greenhouse gas emissions may not be adequate to 
reverse the predicted rising trend in greenhouse gas emissions, there 
is great uncertainty regarding the population-level impacts of climate 
change to pinto abalone and the adaptability of pinto abalone to 
climate change effects occurring over long time scales. Therefore, the 
available information is not sufficient to determine if inadequate 
regulation of greenhouse gas emissions may be threatening pinto abalone 
populations such that listing may be warranted. We conclude that the 
CBD petition does not present sufficient information to determine 
whether inadequate regulation of abalone farms or captive propagation 
and enhancement programs are impacting the continued existence of pinto 
abalone populations.

Other Natural or Manmade Factors

    The NRDC petition discusses the direct and indirect impacts of 
climate change under this listing factor in their petition. We have 
reviewed the information in the petition and in our files under the 
listing factor entitled The Present or Threatened Destruction, 
Modification, or Curtailment of the Species' Habitat or Range (see 
above).
    The CBD petition discusses the threat imposed by low pinto abalone 
densities and resulting reproductive failure on pinto abalone 
populations under this listing factor. We have reviewed the information 
in the petition and in our files under the listing factor entitled 
Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes (see above).

Petition Finding

    After reviewing the information contained in both petitions, as 
well as information readily available in our files, we conclude the 
petitions present substantial scientific information indicating the 
petitioned action of listing the pinto abalone as a threatened or 
endangered may be warranted. Therefore, in accordance with section 
4(b)(3)(A) of the ESA and NMFS' implementing regulations (50 CFR 
424.14(b)(3)), we will commence a status review of the species. 
Following completion of the status review, we will determine whether 
the species is in danger of extinction (endangered) or likely to become 
so within the foreseeable future (threatened) throughout all or a 
significant portion of its range. We now initiate this review, and 
thus, the pinto abalone is considered to be a candidate species (50 CFR 
424.15(b)). Within 12 months of the receipt of the NRDC petition (July 
1, 2013), we will make a finding as to whether listing the species as 
endangered or threatened is warranted as required by section 4(b)(3)(B) 
of the ESA. If listing the species is warranted, we will publish a 
proposed rule and solicit public comments before developing and 
publishing a final rule.

Information Solicited

    To ensure that the status review is based on the best available 
scientific and commercial data, we are soliciting information relevant 
to whether pinto abalone is threatened or endangered. Specifically, we 
are soliciting published and unpublished information in the following 
areas: (1) Long-term trends in abundance, distribution, size ranges, 
and nearest neighbor distances, especially in areas where fishing 
pressure, sea otter predation, and poaching occurs; (2) potential 
factors for decline now and in the future, especially overharvesting, 
poaching, natural predation (especially by southern sea otters), 
disease, climate change, and ocean acidification; (3) southern sea 
otter population status, predation rates, and prey composition in 
Alaska and Washington from coastal intertidal areas to 25 meters depth; 
(4) population status in Mexico; (5) factors important for management 
of ongoing subsistence, personal use, and recreational fisheries; (6) 
current estimates of population size and available habitat; (7) data on 
various life history parameters including, but not limited: to size/age 
at maturity, fecundity, length of larval stage, and larval dispersal 
dynamics; (8) enforcement information from Alaska, Washington, Oregon, 
California, and Mexico regarding the frequency, severity, and location 
of poaching incidents; (9) projections on population growth or decline 
and risk of extinction considering the impacts of stressors; and (10) 
ongoing or planned efforts to protect and restore the species and its 
habitat.
    We also request information on critical habitat for pinto abalone. 
Specifically, we request information on the physical and biological 
habitat features that are essential to the conservation of the species 
and identification of habitat areas that include these essential 
physical and biological features. Essential features include, but are 
not limited to: (1) Space for individual and population growth and for 
normal behavior; (2) food, water, air, light, minerals, or other 
nutritional or physiological requirements; (3) cover or shelter; (4) 
sites for 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 
(50 CFR 424.12). For habitat areas potentially qualifying as critical 
habitat, we request information describing: (1) The activities that 
affect the habitat areas or could be affected by the designation; and 
(2) the economic impacts, impacts to national security, or other 
relevant impacts of additional requirements of management measures 
likely to result from the designation.
    We request that all information be accompanied by: (1) Supporting 
documentation such as maps, raw data with associated documentation, 
bibliographic references, or reprints of pertinent publications; and 
(2) the submitter's name, mailing address, email address, and any 
association,

[[Page 69039]]

institution, or business that the person represents.

References Cited

    A complete list of references is available upon request from the 
NMFS West Coast Regional Office (see ADDRESSES).

    Authority: The authority for this action is the Endangered 
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: November 12, 2013.
Samuel D. Rauch, III.,
Deputy Assistant Administrator for Regulatory Programs, performing the 
functions and duties of the Assistant Administrator for Fisheries, 
National Marine Fisheries Service.
[FR Doc. 2013-27553 Filed 11-15-13; 8:45 am]
BILLING CODE 3510-22-P