Endangered and Threatened Wildlife; 90-Day Finding on Petition To List the Barndoor Skate, Winter Skate and Smooth Skate Under the Endangered Species Act, 78898-78904 [2011-32530]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 76, Number 244 (Tuesday, December 20, 2011)]
[Notices]
[Pages 78898-78904]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-32530]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[Docket No. 111205721-1719-01]
RIN 0648-XA741


Endangered and Threatened Wildlife; 90-Day Finding on Petition To 
List the Barndoor Skate, Winter Skate and Smooth Skate Under the 
Endangered Species Act

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

ACTION: Notice of 90-day petition finding.

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SUMMARY: We, NMFS, announce a 90-day finding for a petition to list the

[[Page 78899]]

barndoor skate (Dipturus laevis), winter skate (Leucoraja ocellata) and 
smooth skate (Malacoraja senta) under the Endangered Species Act (ESA). 
We find that the petition does not present substantial scientific 
information indicating the petitioned actions may be warranted. 
Accordingly, we will not initiate a review of the status of these 
species at this time.

FOR FURTHER INFORMATION CONTACT: Kim Damon-Randall, NMFS, Northeast 
Regional Office (978) 282-8485 or Maggie Miller, NMFS, Office of 
Protected Resources (301) 427-8403. The petition is available 
electronically at the NMFS Web site at https://www.nero.noaa.gov/prot_res/CandidateSpeciesProgram/csr.htm. A list of references is available 
upon request.

SUPPLEMENTARY INFORMATION: 

Background

    On August 22, 2011, we received a petition from WildEarth Guardians 
and Friends of Animals (the petitioners) requesting that we list thorny 
skate, barndoor skate, winter skate and smooth skate as threatened or 
endangered. In the alternative, the petitioners request that we list 
any and all distinct population segments (DPSs) of these species that 
may exist, and in particular the petitioners requested that we list the 
United States population of thorny skate as a threatened or endangered 
DPS.
    The joint USFWS/NMFS petition management handbook (https://www.nmfs.noaa.gov/pr/pdfs/laws/petition_management.pdf) states that if 
we receive two petitions for the same species and a 90-day finding has 
not yet been made on the earlier petition, then the later petition will 
be combined with the earlier petition and a combined 90-day finding 
will be prepared. When we received the petition from WildEarth 
Guardians and Friends of Animals, we had already received a petition 
from the Animal Welfare Institute for thorny skate. Therefore, we 
combined the petitions for thorny skate and issued a single 90-day 
finding addressing both petitions for that species. Given that, this 
90-day finding will address the remaining three skate species included 
in the petition from WildEarth Guardians and Friends of Animals. The 
petitioners state that there can be no reasonable dispute that the 
available information, in particular the International Union for 
Conservation of Nature's (IUCN) assessment that each of the petitioned 
species is ``Critically Endangered'' or ``Endangered,'' indicates that 
listing these skates as either threatened or endangered may be 
warranted.

ESA Statutory Provisions and Policy Considerations

    Section 4(b)(3)(A) of the ESA (16 U.S.C. 1533(b)(3)(A)) requires 
that we make a finding as to whether a petition to list, delist, or 
reclassify a species presents substantial scientific or commercial 
information indicating that the petitioned action may be warranted. ESA 
implementing regulations define substantial information 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)(1)). In determining whether substantial information exists 
for a petition to list a species, we take into account several factors, 
including information submitted with, and referenced in, the petition 
and all other information readily available in our files. To the 
maximum extent practicable, this finding is to be made within 90 days 
of the receipt of the petition (16 U.S.C. 1533(b)(3)(A)), and the 
finding is to be published promptly in the Federal Register. If we find 
that the petition presents substantial information indicating that the 
requested action may be warranted, section 4(b)(3)(A) of the ESA 
requires the Secretary of Commerce (Secretary) to conduct a status 
review of the species. Section 4(b)(3)(B) requires the Secretary to 
make a finding as to whether or not the petitioned action is warranted 
within 12 months of the receipt of the petition. The Secretary has 
delegated authority for these actions to the NOAA Assistant 
Administrator for Fisheries.
    To be considered for listing under the ESA, a group of organisms 
must constitute a ``species,'' which is defined to also include 
subspecies and, for any vertebrate species, any DPS that interbreeds 
when mature (16 U.S.C. 1532(16)). On February 7, 1996, NMFS and the 
U.S. Fish and Wildlife Service (collectively, the ``Services'') adopted 
a policy to clarify their interpretation of the phrase ``distinct 
population segment of any species of vertebrate fish and wildlife'' (61 
FR 4722). The joint DPS policy describes two criteria that must be 
considered when identifying DPSs: (1) The discreteness of the 
population segment in relation to the remainder of the species (or 
subspecies) to which it belongs; and (2) the significance of the 
population segment to the remainder of the species (or subspecies) to 
which it belongs. As further stated in the joint policy, if a 
population segment is discrete and significant (i.e., it is a DPS), its 
evaluation for endangered or threatened status will be based on the 
ESA's definitions of those terms and a review of the five factors 
enumerated in section 4(a)(1) of the ESA.
    The ESA defines an endangered species as ``any species which is in 
danger of extinction throughout all or a significant portion of its 
range,'' and ``threatened'' if it is ``likely to become an endangered 
species within the foreseeable future throughout all or a significant 
portion of its range'' (ESA sections 3(6) and 3(20), respectively, 16 
U.S.C. 1532(6) and (20)). Under section 4(a)(1) of the ESA, a species 
may be determined to be threatened or endangered as a result of any one 
of the following factors: (A) Present or threatened destruction, 
modification, or curtailment of 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 manmade factors affecting its continued 
existence.
    Many petitions, such as this one, identify risk classifications 
made by other organizations or agencies, such as the 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 may not provide the rationale for a positive 90-
day finding under the ESA. Thus, when a petition cites such 
classifications, we will evaluate the source information that the 
classification is based upon, in light of the standards on extinction 
risk and impacts or threats discussed above.

Species Description

    Barndoor skate are found in the Northwest Atlantic in the Gulf of 
St. Lawrence, Gulf of Maine and as far south as North Carolina. They 
are most abundant in offshore Gulf of Maine (Canadian waters), offshore 
Georges Bank, and Southern New England waters, with very few documented 
in inshore waters or in the Mid-Atlantic Region (New England Fisheries 
Management Council (NEFMC), 2009). Minimum length of barndoor skate 
caught in the Northeast Fisheries Science Center (NEFSC) surveys is 20 
cm total length (TL) (8 in) and the largest individual caught was 136 
cm TL (54 in). It has a broad body with pointed fins and snout and a 
relatively short tail with three rows of spines. Its primary 
distinguishing feature is a dark line that extends from the snout to 
the base of the tail. It has been estimated that barndoor skate reach 
maturity at 6-7 years of age.

[[Page 78900]]

    Smooth skate occur from the Gulf of St. Lawrence and the Labrador 
shelf to as far south as South Carolina in the Northwest Atlantic 
Ocean. They are most abundant inshore and offshore Gulf of Maine and 
along the 100 fathom edge of Georges Bank, with very few documented in 
Southern New England or the Mid Atlantic (NEFMC, 2009). They are found 
in water depths of 45 to 900 m. The median length of smooth skate in 
the survey catch shows no trend over the full survey time series and is 
currently at about 40 cm TL (16 in). It has been estimated that they 
reach sexual maturity as early as 5 years old but possibly as late as 8 
to 10 years. The distinctive feature of smooth skate is an irregular 
row of small thorns which run along its back and along the first half 
of its tail.
    Winter skate occur from the south coast of Newfoundland and the 
southern Gulf of St. Lawrence to Cape Hatteras. They are most abundant 
inshore and offshore Georges Bank and Southern New England with lesser 
amounts in the Gulf of Maine or the Mid-Atlantic (NEFMC, 2009). They 
are found in water depths up to 90 m. Median length of winter skates 
increased from the mid 1990s through 2002 and then declined slightly to 
about 45 to 52 cm TL (18-20 in). The age at maturity is estimated at 7 
years. The snout and pectoral fins of the winter skate are blunt and 
rounded. Other common names for winter skate include big skate, spotted 
skate and eyed skate.

Analysis of Petition and Information Readily Available in NMFS Files

    In the following sections, we present information from the petition 
and readily available in our files to determine whether this 
information leads a reasonable person to conclude that listing under 
the ESA may be warranted due to any one or more of the factors listed 
under section 4(a)(1) of the ESA. A separate discussion is included for 
each of the three skate species included in the petition.

Abundance

    The petition presents limited information on abundance of the skate 
species. It cites the IUCN classifications and places a great deal of 
weight on these. Additional information on biomass is contained in the 
discussion of the second ESA factor, overutilization for commercial, 
recreational, scientific or educational purposes, for each of the three 
species.

Barndoor Skate Abundance

    The petition states that the IUCN lists barndoor skates as 
``endangered'' throughout their range. The petitioners state that the 
biomass of barndoor skates declined throughout their range by 96-99 
percent from the 1960s to the 1990s, most likely as a result of 
mortality as bycatch. They state that the population has experienced a 
slight increase in recent years and that the NEFSC has therefore 
concluded that it is neither overfished, nor experiencing overfishing. 
They state that although the potential increase gives conservationists 
some reason to be optimistic, researchers have suggested that it is 
difficult to tell whether the data demonstrate actual population 
resurgence. The petitioners cite a reference from the year 2000 for 
this information; however, since 2000, additional data has become 
available from both the NEFSC Spring and Autumn Bottom Trawl surveys 
that show that the population has continued to increase. The 
petitioners also state that while the barndoor skate is not overfished 
and not experiencing overfishing (according to the 2008 NEFSC survey), 
the 2005 biomass index is still 50 percent of the peak biomass observed 
during the 1960s when the species was first surveyed. In addition, the 
petitioners note that the average biomass index of barndoor skate is 
well below the target biomass index established by the NEFSC.
    The 2008 Stock Assessment and Fishery Evaluation (SAFE) Report 
states that in the NEFSC spring survey (1968-2006), the annual total 
catch of barndoor skate ranged from 0 fish (several years during the 
1970s and 1980s) to 196 fish in 2006. The NEFSC autumn survey (1963-
2005) exhibited a similar increasing trend. Recent spring catches 
equated to 0.6 fish or 1.7 kg per tow in 2006 and recent autumn catches 
equated to 0.4 fish or 1.0 kg per tow in 2005. The 2008 SAFE Report 
states that, given this data, barndoor skate appear to be in a 
rebuilding phase that began in the 1990s. Since 1990, both spring and 
autumn survey indices have steadily increased, with the spring survey 
at the highest value in the time series and the autumn survey nearing 
the peak values found in the 1960s. In 2007, the NEFSC autumn survey 
showed a decline in biomass which reduced the 3-year moving average; 
however, it remains above the biomass threshold and thus, the barndoor 
skate is not considered to be overfished. In fact, the survey biomass 
index for barndoor skate has been above the overfished biomass 
threshold since 2004. The 2008-2010 NEFSC autumn average survey biomass 
index of 1.11 kg/tow is above the biomass threshold reference point 
(0.81 kg/tow), and thus, the species is not overfished but is not yet 
rebuilt to biomass at maximum sustainable yield (Bmsy). The 2008-2010 
average index is above the 2007-2009 index by ten percent; therefore, 
as indicated previously, overfishing is not occurring. In addition, 
recent catches of barndoor skate include individuals as large as those 
recorded during the peak abundance of the 1960s, and recent survey data 
show an increase in the number of fish between 40 and 80 cm TL, common 
lengths during the 1960s (NEFMC, 2009).

Previous ESA Action for Barndoor Skate

    On January 15, 1999, we published in the Federal Register a 
notification soliciting comments and reliable documentation on species 
we were considering adding to the Endangered Species Act (ESA) 
candidate species list (64 FR 2629; January 15, 1999). In that 
publication, we listed barndoor skates (Dipturus laevis) as one of the 
species under consideration. On March 4, 1999, we received a petition 
from GreenWorld to list barndoor skates as endangered or threatened 
under the ESA and to designate Georges Bank and other appropriate areas 
as critical habitat. GreenWorld requested that they be listed 
immediately, as an emergency matter, as well as similar looking species 
of skates to ensure the protection of barndoor skates. On April 2, 
1999, we received a second petition from the Center for Marine 
Conservation (CMC), now the Ocean Conservancy, to list barndoor skates 
as an endangered species. We considered the second petition a comment 
on the first petition submitted by GreenWorld. On June 23, 1999, after 
considering all available information, we published our revised list of 
candidate species, which included barndoor skates (64 FR 33466; June 
23, 1999). In that same month, we published a finding that the petition 
action to list barndoor skates under the ESA might be warranted (64 FR 
33040; June 21, 1999). We then initiated a review of the status of the 
species to determine if listing barndoor skates under the ESA was 
warranted. As part of that review, we conducted a stock assessment of 
the species using the information published in the SAFE report. Instead 
of preparing a separate stand alone status review document, we 
referenced the SAFE report as the best available data on the status of 
the species.
    On September 27, 2002, after reviewing the best scientific and 
commercial information available, we published a determination that 
listing

[[Page 78901]]

barndoor skates as either threatened or endangered under the ESA was 
not warranted (67 FR 61055; September 27, 2002). Survey data showed an 
increase in abundance and biomass, expansion of known areas where 
barndoor skates were encountered, an increase in size range, as well as 
an increase in small barndoor skates collected. These data are not 
consistent with a species in danger of extinction. Furthermore, the 
most significant identifiable threat to the species, overfishing, had 
been reduced by regulatory measures affecting several northeast 
fisheries. In addition to the regulatory measures already in place, 
NMFS was working at that time with the New England Fishery Management 
Council (NEFMC) to develop the Skate Fishery Management Plan (FMP). Due 
to remaining uncertainties regarding the status and population 
structure of barndoor skates, NMFS determined that retaining the 
species on the agency's list of candidate species (subsequently, 
changed to species of concern list) was warranted until additional 
scientific and commercial data became available (67 FR 61055; September 
27, 2002).
    Due to new information available since 2004, a review was initiated 
in 2009 to present the best scientific and commercial data available to 
investigate the status of the species relative to the criteria for 
remaining a species of concern. The most recent research on life 
history characteristics and population dynamics of barndoor skates has 
revealed that the rebuilding estimate is more rapid and suggests the 
species may be more resilient to exploitation than previously believed 
(Barndoor Skate Internal Status Review, 2009). In addition, the 
consistent rise in biomass as well as the large increase in size 
ranges, coupled with management in other fisheries and the Skate FMP, 
supports the continued rebuilding of barndoor skate stocks. Given the 
newly acquired information presented above, it was determined that 
barndoor skates no longer met the criteria for a species of concern and 
inclusion on the species of concern list was no longer warranted. Thus, 
the species was removed from the list in 2009.

Smooth Skate Abundance

    The petitioners state that the IUCN has designated smooth skate as 
``endangered'' throughout their range. The IUCN assessed smooth skate 
as ``near threatened'' in U.S. waters in 2004. The petitioners state 
that the NEFSC biomass index for smooth skate has declined continuously 
from the 1970s to the 1980s, partially as a result of mortality from 
bycatch. They state that the autumn survey index has stabilized at 
about 25 percent of the peak observed during the 1970s. The petitioners 
state that in 2008, the NEFSC determined smooth skates to be overfished 
but not subject to current overfishing. They state that the three-year 
moving average of the biomass index declined by over 22 percent between 
2004-2006 and 2005-2007. The data presented by the petitioners for the 
most recent 3-year average biomass are out of date. In addition, the 
petitioners compare this out-dated information to an ``old'' reference 
point (0.31 kg/tow) and not the updated biomass target and thresholds 
which have been adopted by the Data Poor Stocks Working Group (DPSWG) 
and Amendment 3 to the Skate FMP in 2009.
    The 2008 SAFE Report states that the total annual catch of smooth 
skate in the NEFSC spring surveys ranged from 30 fish in 2000 to 71 
fish in 2006. The total annual catch of smooth skates in the NEFSC 
autumn surveys ranged from 55 fish in 2000 to 44 fish in 2006. Indices 
of smooth skate abundance and biomass from the NEFSC surveys peaked 
during the early 1970s for the spring series and the late 1970s for the 
autumn series. NEFSC survey indices declined during the 1980s before 
stabilizing during the early 1990s at about 25 percent of the autumn 
and 50 percent of the spring survey index values of the 1970s. In 2008, 
smooth skate was determined to be overfished (in accordance with the 
Northeast Skate Complex Fishery Management Plan, referred to hereafter 
as the Skate FMP) based on the 2007 autumn survey data, because the 3-
year moving average dropped below the threshold. However, overfishing 
was not occurring (as defined by the Skate FMP) because the consecutive 
3-year moving average of the biomass indices did not exceed the maximum 
threshold of 30 percent which, according to the FMP, defines when 
overfishing is occurring. Since 2008, new data has become available 
which has changed the overfished status of the smooth skate species. 
The 2008-2010 NEFSC autumn average biomass index of 0.16 kg/tow is now 
above the biomass threshold reference point (0.145 kg/tow) and thus, 
the species is not overfished but is not yet rebuilt to Bmsy. The 2008-
2010 index is above the 2007-2009 index by 22 percent; therefore, 
overfishing is not occurring. The biomass target for smooth skate (0.27 
kg/tow) is an order of magnitude lower than most other skates in the 
complex.
    The smooth skate's low relative abundance in U.S. waters is due to 
the fact that its center of abundance appears to be in Canadian waters 
(Kulka et al., 2006). The species is not distributed evenly within its 
global range (IUCN, 2004). Following declines in the 1970s, the 
relative abundance of some of these population concentrations has 
increased significantly in recent years, while others have been stable 
or slightly declining (Kulka et al., 2006). Minimum estimates of smooth 
skate abundance in these regions from Canadian trawl surveys range from 
194,000-23,000,000 fish for 1995-2006, depending on the selected survey 
(Kulka et al., 2006).

Winter Skate Abundance

    The petitioners state that the IUCN has designated winter skates as 
``endangered'' throughout their range. A regional ``vulnerable'' 
listing was recommended for the United States. The petitioners state 
that the NEFSC declared winter skate overfished in 2007. They state 
that although the most recent survey indicates that winter skate are 
not currently subject to overfishing as defined in the FMP, the 3-year 
moving average of winter skate biomass index has declined steadily over 
the past decade and declined four percent between 2004-2006 and 2005-
2007. The data presented by the petitioners for the most recent 3-year 
average biomass are 3 years out of date. In addition, the petitioners 
reference the old biomass index reference point (6.46 kg/tow) and not 
the updated biomass target and thresholds adopted by the DPSWG and 
Amendment 3 to the Skate FMP in 2009. The petitioners state that the 
effects of the directed take for wings and take as bait, combined with 
bycatch mortality from trawling, have led to a dramatic decline in the 
winter skate population, and state that 62 percent of the New England 
population has been lost since the 1980s.
    Unlike thorny and smooth skates, the winter skate's center of 
abundance is in U.S. waters and they range as far south as North 
Carolina. Winter skate is the target species of the Northeast U.S. 
skate wing fishery, representing approximately 95 percent of skate wing 
landings (NEFMC, 2009). The petitioners incorrectly claim that winter 
skate biomass is ``currently only 38 percent of the peak biomass 
observed during the 1980's.'' Based on survey data through fall 2010, 
the biomass of winter skate is actually at its highest level since the 
mid-1980s and well above its target biomass of 5.60 kg/tow. The 
petitioners appear to only reference survey biomass data through 2007, 
when winter skate biomass was significantly lower. NMFS declared winter 
skate overfished in 2007, but a subsequent stock assessment concluded 
that the species had not actually

[[Page 78902]]

declined below its biomass threshold (DPWG, 2009). Winter skate biomass 
exceeded its target level of 5.60 kg/tow in 2009, and is currently at 
9.64 kg/tow (72 percent above the target). Winter skate is not 
overfished and overfishing is not occurring as defined in the Skate 
FMP. This stock appears to have rebuilt despite skate landings being at 
the highest levels on record (2008-2010 average annual landings = 
20,371 mt). The fact that this stock has increased in biomass despite 
increases in harvest, and continues to support a viable fishery, 
suggests that this species is not at risk of extinction now or in the 
future.
    In Canadian waters, winter skate is primarily a bycatch species. In 
2005, the Committee on the Status of Endangered Wildlife in Canada 
(COSEWIC) released a status assessment on four ``designatable units'' 
(DU) of winter skate. Based primarily on life history characteristics 
and the low frequency of occurrences in catches winter skate, COSEWIC 
designated the southern Gulf of St. Lawrence DU as Endangered, the 
eastern Scotian Shelf as Threatened, the Georges Bank-Western Scotian 
Shelf/Bay of Fundy as of ``Special Concern'' and the Northern Gulf-
Newfoundland population as ``Data Deficient'' (Swain et al., 2006).
    The 2008 SAFE Report examined the distribution of winter skate in 
Canadian waters using research surveys and commercial fishery data by 
Simon et al. (2003). No trend in abundance was found in the Georges 
Bank region, and the series average was 1.9 million individuals. 
Declines were evident in the Southern Gulf of St. Lawrence and on the 
Scotian Shelf. In recent years, in addition to fishing mortality, 
natural mortality from seal predation has begun to have an impact on 
winter skates in Canada (Benoit et al., 2011).

 Analysis of ESA Section 4(a)(1) Factors for Barndoor, Smooth and 
Winter Skates

    The petition presents information on the five ESA factors for all 
three species, and the petitioners conclude that all three species are 
threatened by direct and indirect exploitation. The petitioners state 
that the life history of these species, which make them especially 
vulnerable to exploitation, argue even more urgently for the adoption 
of strong regulatory protections provided by the ESA.
    The petition makes similar arguments for all three skate species so 
they will all be addressed together first, followed by species-specific 
information and analysis. For all three species, the petitioners claim 
that the use of groundfish trawling gear degrades benthic habitat 
structure which affects the availability of the skate's prey as well as 
the skate's ability to avoid predators. This is a very general claim 
and no information is presented or otherwise available to us to 
indicate that the prey of barndoor, smooth and/or winter skate has been 
affected in such a manner as to pose a significant threat to the 
species. The petitioners further state that because smooth skates are 
prey specialists, they may be even more sensitive to habitat alteration 
than other skates. While this may be true, the petitioners do not 
present substantial information indicating that habitat degradation has 
caused or will cause smooth skate to be threatened or endangered now or 
in the future.
    Regarding overutilization for commercial, recreational, scientific 
or educational purposes, the petitioners claim that landings of all 
three skate species have grown since the 1980s and state that the 
directed skate take will likely continue to increase as use of other 
groundfish becomes more restricted and less profitable. This claim does 
not take into account that Amendment 3 to the Skate FMP has set 
acceptable biological catch and annual catch targets. It also does not 
take into account that in order to land skates, a fisher must use a 
groundfish day-at-sea, and that there have been effort reductions in 
the groundfish fleet under the Multispecies FMP. Groundfish permit 
holders that participate in sectors operate under sector-specific catch 
entitlements. The implications of reduced fishing activity for 
groundfish on the catch of skates have not yet been analyzed.
    The petitioners raise concerns over the discard mortality rate (the 
percentage of skates that die after they are thrown overboard) which 
they state could be as high as 56 percent. Research on the discard 
mortality rates of winter, little, thorny, and smooth skates in bottom 
trawl gear is currently being conducted by Drs. John Mandelman (New 
England Aquarium) and James Sulikowski (University of New England) 
(NOAA Saltonstall-Kennedy Grant Program). Preliminary data provided to 
NMFS and the Skate Plan Development Team (PDT) indicate that discard 
mortality rates are significantly lower than the 50 percent previously 
assumed by the NEFSC. Based on new research, the 2008 to 2010 discard 
mortality rate for little and winter skates caught by trawl gear was 
reduced from 50 percent to 20 and 12 percent, respectively. As a 
result, the skate discard rate (the percentage of the total annual 
catch represented by dead discards) was reduced from 52 to 36 percent. 
(NMFS, 2011).
    The petitioners further state that as long as the skate bait and 
wing fishery continues to target the smaller little and winter skates, 
it will continue to threaten barndoor and smooth skates as well. This 
assumes that the fishery operates in areas where barndoor and smooth 
skate occur; however, Amendment 3 to the Skate FMP shows that the bait 
fishery operates in an area where mostly little and winter skate occur, 
and not barndoor and smooth skate.
    The petitioners state that even a normal rate of predation could 
have a significant impact on the already depleted barndoor, smooth and 
winter skates, and they state that we should fully consider the risks 
posed to these species' populations from predation in assessing their 
status. Similarly, the petitioners state that we should fully consider 
the risks posed to the survival of these three skates by parasitism in 
assessing the status of the three species. Information presented by the 
petitioner and otherwise available to us does not indicate that any of 
these three species of skates are threatened or endangered due to 
predation or disease.
    Regarding inadequacy of existing regulatory mechanisms, the 
petitioners state that because the species-specific reporting 
requirements are not being enforced, the prohibition on landing and 
possessing barndoor and smooth skates is essentially meaningless. The 
potential impact of the lack of species-specific reporting in the skate 
fishery on the survival of barndoor and smooth skates is overstated. 
While the historical lack of species-specific trends in landings and 
discards has hampered stock assessment efforts, recent data collection 
efforts have greatly improved our understanding of the species 
composition of the landings. Over the last several years (2005 to 
2010), the prohibitions on thorny, barndoor, and smooth skates have 
been estimated to be approximately 98 percent effective (NMFS Northeast 
Region, unpublished data). The petitioners argue that the existing 
regulatory mechanisms are inadequate to protect smooth skates; however, 
port sampling of skate wing landings conducted by NMFS indicates that 
from 2005-2010 prohibited species occurred in only approximately two 
percent of landings. Of 59,879 skate wings sampled during this period, 
only three wings were identified as smooth skate (NMFS, unpublished 
data). The smooth skate's small body size makes it generally non-
marketable for the skate wing fishery, and it is not likely to occur in 
bait skate landings because this

[[Page 78903]]

fishery primarily operates in southern New England waters, south of the 
smooth skate's range. While bycatch and discards in the Gulf of Maine 
may be the primary source of fishing mortality for this species in U.S. 
waters, recent analyses show that the overlap between fishing effort 
and smooth skate distribution is minimal (NEFMC, 2011). However, 
overlap is likely more prevalent in Canadian waters (Kulka et al., 
2006).
    Regarding smooth skates, the petitioners raise particular concern 
that the prohibition on landing smooth skates is limited to the Gulf of 
Maine Regulated Mesh Area, which only covers the Gulf of Maine. While 
this is true, it is appropriate because the vast majority of the U.S. 
smooth skate biomass is within the Gulf of Maine Regulated Mesh Area. 
Finally, the petitioners raise concern that the FMP only requires 
vessels to report discarded skate by size category of small or large. 
The statement is correct for Vessel Trip Reports (VTRs). For the 
purposes of VTRs, vessels only report the weights of large and small 
skates discarded. However, VTR data are not used to estimate the 
magnitude or species composition of skate discards. This is done using 
at-sea observer data to estimate discard/kept ratios. Species 
composition of discards is estimated through the NMFS stock assessment 
process, and combines observer and trawl survey data for accurate 
discard information.
    In Canada, when the skate fishery first occurred in 1994, winter 
skate constituted the majority of skates caught (over 2,000 mt). In 
Canada, winter skate landings are under quota control in the Scotian 
Shelf (the only directed fishery in the Northwest Atlantic). The total 
allowable catch was reduced from 2000 mt in 1994 to 300 mt in 2001 and 
200 mt in 2002 (DFO 2007). This fishery was closed in April 2006 to 
protect the winter skate population.
    Regarding other natural or manmade factors affecting the continued 
existence of barndoor, smooth, and winter skates, the petitioners note 
that the life history characteristics of large skates make them 
especially vulnerable to exploitation. They state that because of their 
life history characteristics, these skates are not likely to recover 
quickly from their current low levels and are more susceptible to 
exploitation. The petitioners do not present substantial information to 
indicate why or how these factors result in the species possibly 
warranting listing as either threatened or endangered.
    As noted above, we conducted a review of the status of barndoor 
skate in 2009 and concluded that the most recent research on life 
history characteristics and population dynamics of barndoor skates 
illustrated a more rapid rebuilding estimate and suggested that the 
species may be more resilient to exploitation than previously believed. 
In addition, the consistent rise in biomass and large increase in size 
ranges, coupled with the management measures in other fisheries and the 
Skate FMP, support the continued rebuilding of barndoor skate stocks. 
The 2008-2010 NEFSC autumn average survey biomass index of 1.11 kg/tow 
is above the biomass threshold reference point (0.81 kg/tow) and thus, 
the species is not overfished but is not yet rebuilt to Bmsy. The 2008-
2010 index is above the 2007-2009 index by 10 percent; therefore, 
overfishing is not occurring. Consequently, the information available 
to us since our 2009 decision to remove barndoor skate from the species 
of concern list, and that which is presented by the petitioners, does 
not indicate that the petitioned action for barndoor skates may be 
warranted.
    The petitioners cite one study which they state linked the recent 
decline in smooth skate abundance with a decrease in water temperature 
(resulting from climate change), but note that no corresponding 
recovery has been observed with an ensuing increase in water 
temperature. They state that this observation suggests that the smooth 
skate population may be adversely affected by climate change. For 
smooth skate, the 2008-2010 NEFSC autumn average biomass index of 0.16 
kg/tow is above the biomass threshold reference point (0.145 kg/tow) 
and thus, the species is not overfished but is not yet rebuilt to Bmsy. 
The 2008-2010 index is above the 2007-2009 index by 22 percent; 
therefore, overfishing is not occurring. While the species may be 
impacted by climate change, the fact that it is not currently 
overfished, overfishing is not occurring, and the biomass is 
increasing, does not indicate that climate change or other factors are 
causing the species to be threatened or endangered. We conclude that 
the available information does not indicate that the petitioned action 
may be warranted for smooth skates.
    For winter skate, the 2008-2010 NEFSC autumn average biomass index 
of 9.64 kg/tow is above both the biomass threshold reference point 
(2.80 kg/tow) and the Bmsy proxy (5.60 kg/tow), and thus, the species 
is not overfished and is above Bmsy. The 2008-2010 average index is 
above the 2007-2009 index by 18 percent; therefore, overfishing is not 
occurring. Given that the winter skate biomass indices exceed the 
biological reference point, this species is considered rebuilt, despite 
the occurrence of a directed fishery. The fact that the species has 
rebuilt under existing regulatory mechanisms does not support the 
petitioners claim that it is threatened or endangered due to direct and 
indirect exploitation or inadequacy of existing regulatory mechanisms 
for fishing. We conclude that the available information does not 
indicate that the petitioned action may be warranted for winter skates.

Conclusion

    The use of groundfish trawling gear was posed by the petitioners as 
degrading benthic habitat structure and affecting the availability of 
the skate's prey as well as the skate's ability to avoid predators; 
however, current information was not presented, nor was it available in 
our files, to indicate that this gear is currently having significant 
impacts on the skates or will in the foreseeable future. Although the 
petitioners claim that overutilization of skates for commercial, 
recreational, scientific, or education purposes in the form of direct 
and indirect exploitation requires that the species be listed under the 
ESA, available information indicates that overfishing is not currently 
occurring in any of the skate species. The petitioners cite out of date 
data, but these data have since been updated and indicate that the 
skates are not in danger of extinction or likely to become endangered 
in the foreseeable future. In addition, available information on 
disease and predation on skates is limited, and the petitioners do not 
present substantial information indicating that the petitioned actions 
of listing the skates under the ESA due to disease or predation may be 
warranted at this time. Regarding inadequacy of existing regulatory 
mechanisms, the petitioners state that because the species-specific 
reporting requirements are not being enforced, the prohibition on 
landing and possessing barndoor and smooth skates is essentially 
meaningless. However, recent data show the prohibitions on barndoor and 
smooth skates have been estimated to be approximately 98 percent 
effective, and prohibited species occurred in only approximately 2 
percent of landings from 2005-2010. In addition, current NMFS 
regulations have been adequate to prevent overfishing for all three 
skate species in the United States. With regards to other natural or 
manmade factors affecting the continued existence of barndoor, smooth 
and winter skates, the petitioners note that the life history 
characteristics of large skates make them especially vulnerable to 
exploitation as

[[Page 78904]]

does climate change. However, given the rapid rebuilding of the 
barndoor skate, the rebuilt population of the winter skate, and the 
lack of available information on climate impacts on smooth skate 
abundance, available information does not indicate that life history 
characteristics or climate change pose a significant threat to the 
skate species. Because we have concluded that the petitioned action to 
list barndoor, winter and/or smooth skates is not warranted, we do not 
need to designate critical habitat or consider the need to list other 
skate species on the basis of similarity of appearance, as requested by 
the petitioner.

Petition Finding

    Based on the above information and the criteria specified in 50 CFR 
424.14(b)(2), after reviewing the information contained in the petition 
and information readily available in our files, we conclude that the 
petition fails to present substantial scientific or commercial 
information indicating that the petitioned action concerning barndoor, 
smooth and/or winter skate may be warranted.

References Cited

    A complete list of the references used in this finding is available 
upon request (see ADDRESSES).

    Authority:  16 U.S.C. 1531 et seq.

    Dated: December 14, 2011.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2011-32530 Filed 12-19-11; 8:45 am]
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