[Federal Register Volume 67, Number 188 (Friday, September 27, 2002)]
[Proposed Rules]
[Pages 61055-61061]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-24515]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223 and 224

[I.D. 091802D]


Endangered and Threatened Wildlife and Plants; 12-Month Finding 
for a Petition to List Barndoor Skate (Dipturus laevis) as Threatened 
or Endangered

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

ACTION: Notice of petition finding.

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SUMMARY: NMFS announces a 12-month finding on a petition to add 
barndoor skate (Dipturus laevis) to the list of threatened and 
endangered wildlife and to designate critical habitat under the 
Endangered Species Act (ESA). NMFS has compiled and analyzed the best 
available data, and prepared this administrative finding for barndoor 
skate. NMFS has determined after review of the best available 
scientific and commercial information that listing the barndoor skate 
is not warranted at this time. NMFS will retain the species on its 
candidate species list.

DATES: The finding announced in this notice was made on September 20, 
2002.

ADDRESSES: Comments or questions concerning this petition finding 
should be sent to Mary Colligan, NMFS, Protected Resources Division, 
One Blackburn Drive, Gloucester, MA 01930.

FOR FURTHER INFORMATION CONTACT: Mary Colligan, NMFS Northeast Region, 
978-281-9116, or David O'Brien, NMFS Office of Protected Resources, 
301-713-1401.

SUPPLEMENTARY INFORMATION:

Background

    Pursuant to section 4(b)(3)(B) of the ESA (16 U.S.C. 1531 et seq.), 
for any petition to revise the List of Endangered or Threatened 
Wildlife and Plants that presents substantial scientific and commercial 
information, NMFS is required to make a finding within 12 months of the 
date of receipt of the petition on whether the petitioned action is (a) 
not warranted, (b) warranted, or (c) warranted but precluded from 
immediate proposal by other pending proposals of higher priority. Such 
12-month findings are to be published promptly in the Federal Register.
    On January 15, 1999 (64 FR 2629), NMFS requested information from 
the public on barndoor skate for possible inclusion on the list of 
candidate species. Such designation highlights species for which NMFS 
is concerned may warrant listing under the ESA, but it does not afford 
any regulatory protection for those species. In a petition dated March 
4, 1999, GreenWorld requested that NMFS list barndoor skate as 
endangered or threatened and designate Georges Bank and other 
appropriate areas as critical habitat. The petitioner also requested 
that barndoor skate be listed immediately, as an emergency matter. 
Finally, the petitioner requested that other similar looking species of 
skate also be designated as threatened or endangered to ensure the 
protection of barndoor skate. On April 2, 1999, NMFS received a second 
petition from the Center for Marine Conservation (CMC) to list barndoor 
skate as an endangered species. This second petition is considered a 
comment on the first petition submitted by GreenWorld.
    Both the petition and comment on the petition referenced a paper in 
the journal Science (Casey and Myers, 1998), which presents data on the 
decline of barndoor skate. The petitioner cites bycatch in commercial 
fishing gear as the major threat to the species' continued existence 
and also expresses concern over ``inbreeding depression due to small 
population size.'' Furthermore, the petitioner cites the inadequacy of 
existing regulatory mechanisms as a threat to the species. Comments 
submitted by the CMC cite

[[Page 61056]]

overutilization for commercial purposes as well as the inadequacy of 
existing regulatory mechanisms as the reasons for barndoor skate being 
endangered. Finally, the CMC requested that the Secretary of Commerce 
categorize barndoor skate as ``overfished'' under the Magnuson-Stevens 
Fishery Conservation and Management Act (MSFCMA).
    The information available in the petition and in NMFS' records 
indicated that listing barndoor skate under the ESA may be warranted. 
Therefore, pursuant to section 4(b)(3)(A) of the ESA, NMFS published a 
90-day finding on June 21, 1999 (64 FR 33040) announcing their intent 
to review the status of barndoor skate and soliciting information from 
the public. NMFS received four comments from the public. One comment 
was received from the Marine Conservation Biology Institute (MCBI), 
containing materials in response to NMFS' request for information on 
barndoor skate. The information included a paper summarizing the 
conclusions reached at a scientific workshop convened by MCBI, which 
examined scientific information on the status and vulnerability of 
barndoor skate. A few participants at this workshop also were 
participants of the 30th Northeast Regional Stock Assessment Workshop 
(SAW).
    One comment was received from the Virginia Institute of Marine 
Science (VIMS). The purpose of the comment was to inform NMFS of two 
recent studies discussed in a report entitled, ``Results of 
modifications to sea scallop dredge twine tops to facilitate the 
reduction of finfish bycatch: Georges Bank Closed Area II Experimental 
Fishery September-October 1998.'' The first study obtained distribution 
and size data on barndoor skate during a 1998 NMFS/Scallop Industry/
Academic Institution cooperative survey of sea scallop resources in 
Georges Bank Closed Area II. According to VIMS, the results of barndoor 
skate density data appears to be higher than what was reported by Casey 
and Myers (1998). The second study was in the process of collecting 
more detailed data in the southern part of Georges Bank Closed Area II. 
The results from the first study were discussed in the Stock Assessment 
Review Committee (SARC) Consensus Summary of Assessments document. VIMS 
concluded that the decision to list barndoor skate as endangered or 
threatened should be delayed until other information sources are 
examined.
    One comment was received from the following east coast commercial 
fishing groups: the Associated Fisheries of Maine Groundfish Group, 
Trawler Survival Fund, Fisheries Survival Fund, Monkfish Defense Fund, 
Garden State Seafood Association, and the North Carolina Fisheries 
Association. Included with their comments was a report entitled 
``Conservation Status of the Barndoor Skate (Raja laevis)'', which was 
prepared by a participant of the 30th Northeast Regional SAW. Their 
comments requested that NMFS determine that listing barndoor skate 
under the ESA is not warranted based upon the best available science or 
information presented by the petitioners.
    One comment was received from the CMC providing additional 
information regarding an option for reducing bycatch of large skates in 
New England trawl fisheries. A report entitled, ``Groundfish Forum's 
Experimental Fishing Permit to test the effectiveness of a halibut 
excluder,'' was included. The CMC stated that the report has been sent 
to the New England Fishery Management Council (Council), which is the 
appropriate forum to review the information provided. In addition, the 
CMC stated that it is pleased that the Council is moving forward with a 
management plan for skates.
    To determine if the petitioned action was warranted, NMFS initiated 
a status review and, as part of that review, conducted a stock 
assessment at the 30th Northeast Regional SAW, which took place from 
November 29, 1999, through December 3, 1999. The SARC reviewed all four 
comments and information received, in addition to commercial fishery 
and state and Federal (both U.S. and Canadian) research survey data, 
for consideration and use in developing comments on the five ESA 
listing factors. The assessment information was compiled and presented 
in the 30th Northeast Regional Stock Assessment Workshop, SARC 
Consensus Summary of Assessments document completed in April of 2000.
    The SARC Chairman was Dr. Robert Mohn, Bedford Institute of 
Oceanography, Department of Fisheries and Oceans, Halifax, Nova Scotia. 
The SARC is composed of scientists from the Northeast Fisheries Science 
Center (NEFSC), the Northeast Regional Office, NMFS Headquarters, the 
Mid-Atlantic Fishery Management Council, Atlantic States Marine 
Fisheries Commission, the states of Rhode Island and Massachusetts, 
Department of Fisheries and Oceans of Canada (DFO Canada), and VIMS.
    The SAW Steering Committee guides the SAW process. Working groups 
are created to assemble data for the assessments, decide on 
methodology, and prepare documents for SARC review. Terms of reference 
provided by the Steering Committee for this assessment included: (1) A 
summary of available biological studies for the skate complex; (2) an 
update of commercial and recreational landings and survey indices 
through 1998/99; (3) a summary of fishery discard rates through use of 
sea sampling data or other information sources to the extent possible; 
(4) an estimate of fishing mortality rates and trends in relative or 
absolute stock size; (5) and an assessment of the status of species in 
the complex relative to overfishing criteria, as well as an evaluation 
of the status of barndoor skate relative to the listing factors of the 
ESA.
    In March of 2000, NMFS notified the Council of its responsibility 
for the development of a plan and management of the seven species of 
skate found off the northeast coast of the United States. Since 
identification of barndoor skate as a candidate species, NMFS has been 
working with the Council to develop a Skate Fishery Management Plan 
(Skate FMP). The purpose of the plan is to develop and implement 
measures to conserve the seven species of skates found in the northeast 
region.
    The Council has set up a Skate Plan Development Team, which 
prepared a 2000 Stock Assessment and Fishery Evaluation (SAFE) Report 
for the Northeast Skate Complex on January 5, 2001. This is the first 
Skate SAFE Report for the northeast region complex and will serve as a 
source document for the Skate FMP. The Skate FMP will also consist of a 
Supplemental Environmental Impact Statement. Skate FMP scoping meetings 
were held from January 23, 2001, through February 12, 2001. A draft 
Skate FMP was prepared and submitted to NMFS by the Council on April 
10, 2002. Since then, a revised draft Skate FMP has been submitted to 
NMFS by the Council on August 1, 2002. NMFS will continue to work with 
the Council to ensure that the Skate FMP contains all of the necessary 
components required to manage and rebuild skate resources.

Life History

    The barndoor skate is one of seven species of skates that occur off 
the northeastern coast of the United States. Barndoor skates can reach 
sizes in excess of 1 meter in length, and may not reach maturity until 
age 10 or older. The historic range of the barndoor skate extended from 
Cape Hatteras to the Grand Banks off Newfoundland. Skates are found 
from near the tide line to depths exceeding 700 m. Skates are not

[[Page 61057]]

known to undertake large-scale migrations, but they do move seasonally 
in response to changes in water temperature, generally offshore in the 
summer and early autumn and inshore in the winter and spring. Barndoor 
skates have a limited reproductive capacity with an estimated average 
fecundity of 47 egg cases per year (NEFSC, 2000). Spawning is thought 
to occur over a considerable part of the year. Members of the skate 
family lay eggs that are encased in a hard, leathery case commonly 
called a mermaid's purse. The eggs are yellowish or greenish brown with 
a hollow tendril at each corner enabling them to fasten to seaweeds or 
other objects (Bigelow and Schroeder, 1953). The incubation time is 
from 6 to 12 months with the young having the appearance of an adult 
upon hatching. Skates are omnivorous, feeding on crustaceans, worms, 
mollusks, and fish (Bigelow and Schroeder, 1953).
    Slow growth and late age at maturity may cause skates to be more 
susceptible to the effects of fishing (NEFSC 2000). Musick (1999), 
stated that large, slow growing, late maturing species with low 
fecundity (i.e. K-selected species), tend to produce low maximum 
sustainable yields and recover more slowly from overfishing. Long-lived 
species tend to be especially prone to excessive mortalities and rapid 
stock collapse, resulting in a recovery that may take decades. These 
long-lived species may not be able to react as strongly, or as quickly 
as more productive species to make up for decreases in their population 
densities (Sminkey and Musick 1996). According to Musick (1999), the 
greatest threat to these long-lived species results from mixed species 
fisheries where they are taken as either directed catch or bycatch.

Consideration as a ``Species'' Under the ESA

    To qualify for listing as a threatened or endangered species, a 
population of the petitioned barndoor skate must be considered a 
``species'' under the ESA. Section 3(15) of the ESA defines a 
``species'' to include any ``distinct population segment of any species 
of vertebrate which interbreeds when mature.'' On February 7, 1996, the 
USFWS and NMFS adopted a joint policy to clarify their interpretation 
of the phrase ``distinct population segment (DPS) of any species of 
vertebrate fish or wildlife'' for the purposes of listing, delisting, 
and reclassifying species under the ESA (51 FR 4722). The joint policy 
identifies two elements that must be considered when making DPS 
determinations: (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 
species or subspecies to which it belongs.
    A population segment may be considered discrete if it satisfies 
either one of the following conditions: (1) It is markedly separated 
from other populations of the same taxon as a consequence of physical, 
physiological, ecological, or behavioral factors; or (2) it is 
delimited by international governmental boundaries across which there 
is a significant difference in exploitation control, habitat 
management, or conservation status.
    Some of the considerations that may be used when determining the 
significance of a population segment to the taxon to which it belongs 
are: (1) Persistence of the discrete population in an unusual or unique 
ecological setting for the taxon; (2) evidence that the loss of the 
discrete population segment would cause a significant gap in the 
taxon's range; (3) evidence that the discrete population segment 
represents the only surviving natural occurrence of a taxon that may be 
more abundant elsewhere; or (4) evidence that the discrete population 
segment has marked genetic differences from other populations of the 
species.
    There is insufficient information at this time to delineate DPSs of 
barndoor skate. In the absence of such information, NMFS will assess 
the status of the species rangewide for this listing analysis.

Status of Species

U.S. Research Surveys

    U.S. Bureau of Fisheries research surveys and NEFSC bottom trawl 
surveys indicate that barndoor skates are most abundant in the Gulf of 
Maine, Georges Bank, and Southern New England offshore strata regions, 
with very few fish caught inshore (<27 meters depth) or in Mid-Atlantic 
regions. According to Bigelow and Schroeder (1953), historically 
barndoor skate have been found inshore to the tide line and in depths 
as great as 400 meters off Nantucket.
    Indices of barndoor skate abundance and biomass from the NEFSC 
spring survey were highest during the 1960s, then declined in the early 
1980s. Since 1990, both the spring and autumn survey indices have 
steadily increased, but are only about 10 percent of the peak values 
observed in the early 1960s (NEFSC 2000). While the status of 
``overfished'' under the MSFCMA does not mean that the species is 
``overutilized,'' ``threatened,'' or ``endangered'' under the ESA, 
current scientific information gathered for MSFCMA purposes can be 
useful in identifying trends in barndoor skate biomass for ESA 
purposes. Three-year averages of indices are used to evaluate the 
current status with respect to the SARC proposed MSFCMA biomass 
reference points. The 1996-1998 NEFSC autumn survey biomass index 
average was 0.08 kg/tow. According to the Skate SAFE Report, the 1997-
1999 NEFSC autumn survey average is 0.17 kg/tow. The most recent 3-year 
average (1998-2000) increased further to 0.23 kg/tow (NEFSC, pers. 
comm., 2001). Preliminary 2001 data bring the 1999-2001 average up to 
0.38 kg/tow, notably higher than the 1996-1998 average (NEFMC 2002a). 
This average is below the SARC proposed MSFCMA biomass target of 1.62 
kg/tow and the threshold of 0.81 kg/tow for determining whether this 
species is overfished; however, an increasing trend has been seen in 
each of these survey years with the biomass index almost tripling in 3 
years.
    The median length of barndoor skate has been increasing in recent 
years for both the spring and autumn surveys; it is currently 70-75 cm. 
Since the decline in the 1980s, recent survey catches have included 
individuals as large as those recorded during the peak abundance in the 
early 1960s, but the large number of barndoor skates between 40 and 80 
cm found during the 1960s is not apparent in recent surveys. However, 
the NEFSC winter surveys of length frequency distribution for 1998-1999 
found a significant increase in the abundance of barndoor skate at 
lengths less than 80 cm (NEFSC 2000). These increases may have resulted 
from an increase in survival of young resulting from the closure of 
certain areas to fishing, and the elimination of foreign fishing in 
1978.

Canadian Research and Commercial Data

    Research surveys and commercial fishery observer sampling by the 
DFO Canada between the Gulf of St. Lawrence and Georges Bank show two 
principal concentrations of barndoor skates: Georges Bank/Fundian 
Channel and central Scotian Shelf. The broad ranges of sizes 
encountered by DFO Canada surveys on Georges Bank suggest that the 
current population consists of both juveniles and adults. Canadian 
observer sampling of commercial fisheries using both fixed and mobile 
gears suggests that commercial gears may catch more and larger barndoor 
skate than shown in research survey catches. This may be due to the 
different types of fishing gear

[[Page 61058]]

used. Otter trawls used in research surveys are not as efficient in 
catching larger species as they can escape easier than with long-line 
and fixed gear methods.
    Recent information from commercial fisheries also indicates that 
barndoor skate are much more widely distributed to the north (roughly 
16 degrees more) than what research surveys indicate (Kulka, 1999). 
Kulka (1999) states that there are a large number of records along the 
southwest slope of the Grand Bank, as well as the shelf edge as far 
north as 64[deg] N. lat., which portrays a significant extension of 
range for this species. Further explanation by Kulka (1999) shows that 
the increased depth at which barndoor skate have been found is due to 
the distribution of the species being associated with particular bottom 
water temperatures, and except for a couple areas, these ideal 
temperatures are found at depths greater than 1000 m. Commercial 
fisheries information shows that some barndoor skate were caught as 
bycatch when there was fishing in waters greater than 800m on the slope 
of the Grand Bank (Kulka 1999). Kulka (1999) believes that this work 
considerably extends the latitudinal range of this species, in addition 
to suggesting a much greater depth range than what is portrayed by 
research survey data. Lastly, Kulka (1999) states that there appears to 
exist a proportion of the distribution that lies outside of the range 
of commercial and research fishing gears and, if this is the case, it 
may provide a protected area for the stock.

U.S. Commercial Fishery Data

    Since the late 1800s, skates have been reported in New England 
fishery landings. Commercial fishery landings, primarily off Rhode 
Island, never exceeded several hundred metric tons until the arrival of 
distant water fleets during the 1960s. The commercial fishery landings 
are not reported specifically by species, with over 99 percent of the 
landings reported as ``unclassified skates.'' From 1989 to 1998, the 
biomass of total discards is estimated to be two (1998) to eight (1989) 
times the reported total landings. It is unknown what proportions of 
total skate landings and of total skate discards are barndoor skate. 
The commercial fishery discard mortality rate for skates and, 
therefore, the magnitude of total skate discard mortality, is unknown 
(NEFSC 2000).

U.S. Recreational Fishery Data

    Aggregate recreational landings of all skates never exceeded 300 
metric tons during the 1981-1998 time series of estimates from the 
Marine Recreational Fishery Statistics Survey. Skates reported as 
released alive average an order of magnitude greater than the reported 
landed number. The recreational fishery release mortality rate for 
skates is not known, but is likely analogous to that for flounders and 
other demersal species, generally ranging from 10-15 percent. Assuming 
this rate would suggest that the recreational fishery discard mortality 
is of similar magnitude to the recreational landings (NEFSC, 2000). The 
Skate SAFE Report states that skates in general have little to no 
recreational value and are not intentionally pursued in any 
recreational fisheries.

Conclusion

    Barndoor skates were sporadically encountered throughout the 1970s, 
rarely encountered in the 1980s, and have shown an increase in 
abundance since the mid-1990s on the southwestern Scotian Shelf, on 
Brown's Bank and in the Gulf of Maine (Simon and Frank, 1999). The 
petitioners argue that current numbers of barndoor skate are so low 
that the species may not recover. Historical survey data suggest a 
substantial decline of barndoor skate in the northern part of their 
range had already taken place by the time that standardized NEFSC 
surveys began in U.S. waters in 1963. However, the species has 
persisted at low levels in U.S. waters over the past 30-40 years. Thus, 
there is no scientific evidence to suggest that barndoor skate are 
currently subject to unusual natural or anthropogenic factors that 
threaten its continued existence (NEFSC 2000).

Summary of Factors Affecting Barndoor Skate

    Section 4(a)(1) of the ESA and the listing regulations (50 CFR part 
424) set forth procedures for listing species. NMFS must determine, 
through the regulatory process, if a species is endangered or 
threatened based upon any of the following factors: (A) The present or 
threatened destruction, modification, or curtailment of its habitat or 
range; (B) overutilization for commercial, recreational, scientific, or 
educational purposes; (C) disease or predation; (D) inadequacy of 
existing regulatory mechanisms; or (E) other natural or human-made 
factors affecting its continued existence. The following is a 
discussion of the factors used to determine whether barndoor skate 
should be listed as a threatened or endangered species under the ESA.

A. Present or Threatened Destruction, Modification, or Curtailment of 
Its Habitat or Range

    Despite past declines, barndoor skates have persisted in their core 
habitat at a low abundance since the late 1960s. Currently, numbers of 
barndoor skate are on the rise, and barndoor skates are now occurring 
in some areas of the western Scotian Shelf, on Georges Bank, and in 
offshore waters of Southern New England. There is no evidence of a 
contraction of range; however, the current abundance, which is lower 
than the historic abundance, may reflect local reductions in area of 
occupancy.
    Auster and Langton (1999) explain that mobile fishing gear may have 
a negative impact on the structural components of habitat by: direct 
removal or damage of epifauna, the reduction of bottom roughness, and 
the removal of structure forming organisms. The effects of bottom 
trawling on habitat depend on several factors, including the type of 
sediment, type of gear used, and the habits of the species living on 
the bottom. Our knowledge of life history characteristics of the 
barndoor skate is currently insufficient to analyze adequately any 
potential negative impacts from bottom trawling. Currently, there is no 
evidence that such habitat alterations as a result of trawling are 
having a negative impact on barndoor skates or their egg cases. 
Therefore, the evidence does not suggest present or threatened 
destruction, modification or curtailment of the habitat or range of 
barndoor skate to an extent that threatens its continued existence.

B. Overutilization for Commercial, Recreational, Scientific or 
Educational Purposes

    There is no substantial information that indicates ongoing adverse 
impacts to the species due to overutilization for commercial, 
recreational, scientific or educational purposes. Available data 
suggest that overfishing (directed catch and bycatch) was the major 
threat to barndoor skate; however, this is now greatly reduced. The 
elimination of foreign fishing in 1978, as well as increasingly 
restrictive regulations in other fisheries in which barndoor skate are 
taken as bycatch, have contributed to this reduction.
    NEFSC spring survey indices of barndoor skate abundance and biomass 
were highest during the 1960s, then declined in the early 1980s. 
However, since 1990, both the spring and autumn survey indices have 
steadily increased (NEFSC, 2000). The most recent 3-year survey average 
(1998-2000) is 0.23 kg/

[[Page 61059]]

tow (NEFSC, pers. comm.). An increasing trend has been seen in each of 
the survey years with the biomass index almost tripling in 3 years. 
According to the NEFSC, this increase in barndoor skate biomass began 
when fishing effort was near or at the highest level in almost all 
fisheries (the late 1980s); therefore, discards do not appear to have 
been a great factor in reducing population size.
    The Skate SAFE Report outlines two types of directed fisheries for 
skates, the wing fishery and the bait fishery. The bait fishery is 
described as more of a historical and directed skate fishery (NEFMC, 
2002a), involving vessels primarily from southern New England ports 
that target and land a combination of little skates ( 90 
percent of landings), and a small percentage of juvenile winter skates 
(NEFMC, 2001). A seasonal gillnet incidental catch fishery also exists 
as part of the directed monkfish gillnet fishery; however, this fishery 
consists of mostly winter skates, which are sold both for lobster bait 
and as cut wings for processing (NEFMC, 2001).
    The wing fishery is more of an incidental fishery. Skates are 
caught while targeting other species such as multispecies, monkfish and 
scallops, and are landed if the price is high enough. While the wing 
fishery considers barndoor skate to be of a sufficient size for 
processing, there is currently no directed fishery for barndoor skate 
(either for bait or for wings) and none is planned in the future 
(NEFSC, 2000). Since barndoor skate populations have been at low levels 
for many years, little of the recent wing landings would be 
attributable to this species. Given that wing cutting is labor 
intensive, many vessels have chosen to optimize their days-at-sea (DAS) 
by targeting more profitable multispecies rather than taking part in 
the skate fishery (NEFMC, 2001).
    New Bedford, MA lands and processes the greatest amount of skate 
wings; and it is assumed that more vessels land skate wings as an 
incidental catch in mixed fisheries rather than a targeted species 
(NEFMC 2001). According to the Skate SAFE Report, fishermen and dealers 
claim market limitations as a reason for low participation in the wing 
fishery. In Rhode Island, many of the companies that experimented with 
the wing market quickly got out of it, due to the low profit margins, 
with an 80 percent drop in production since the early 1990s for some 
dealers (NEFMC 2001). Barndoor skate are reported as getting the lowest 
ex-vessel prices of the wing skates since they cannot be skinned by a 
machine (NEFMC 2001).
    Discard rates have not been classified by skate species due to 
difficulty in identification. However, barndoor skate may have been 
correctly identified due to their large size and distinctive ventral 
coloration (NEFMC, 2001). The Skate SAFE Report notes that discard 
rates are generally low, at less than 5 percent of the landings of the 
targeted species, resulting in estimates of barndoor skate commercial 
fishery discards of a few hundred metric tons per year. The commercial 
fishery discard mortality rate for skates and, therefore, the magnitude 
of total skate discard mortality, is unknown (NEFSC 2000).
    According to the SARC, although fishing mortality and natural 
mortality rates cannot be measured, the small but sustained increases 
in research survey catches indicate that annual survival rates are 
currently high enough to offer some recovery. Given this increase, 
along with the fact that there is no directed fishery and little market 
demand for barndoor skate, and that the best information available 
indicates that barndoor skates constitute a small amount of the total 
skate catch, there is no substantial information that indicates that 
barndoor skate are threatened or endangered due to overutilization for 
commercial, recreational, scientific or educational purposes.

C. Disease or Predation

    There is no substantial evidence that indicates significant loss 
due to disease or predation.

D. The Inadequacy of Existing Regulatory Mechanisms

    Skates can be targeted in the commercial wing and bait fisheries, 
or they can be caught incidentally in other fisheries.

Incidental catch

    The petitioners cite bycatch from commercial fishery gear as the 
reason for the decline of barndoor skate abundance. The scallop, 
monkfish, and multispecies fisheries are most likely to encounter 
barndoor skate and other skate species as bycatch. However, management 
measures implemented to conserve scallop, monkfish, and multispecies 
have also provided indirect protection for skates. Management measures 
implemented by NMFS for other fisheries have reduced fishing mortality, 
in turn promoting the rebuilding of overfished skate stocks.
    Measures in the scallop, monkfish, and multispecies fisheries 
provide protection for skates. The Scallop FMP restrictions are likely 
to reduce skate bycatch as the overall bycatch in the scallop fishery 
is reduced. The FMP outlines several management measures designed to 
reduce overall bycatch including: DAS reductions, minimum twine top 
mesh requirements increased from six to eight inches implemented 
through Scallop Framework 11, as well as reductions of chafing gear. 
These reductions may reduce total fishing effort, which in turn reduces 
total bycatch (NEFMC, 2001).
    There is an unknown degree of overlap between the monkfish fishery 
and the skate fishery according to the Skate SAFE Report. The Monkfish 
FMP was established in November 1999 and consists of limited entry; DAS 
limits; trip limits; minimum mesh sizes to reduce bycatch of 
multispecies and other species; and limits on the number of gillnets 
(NEFMC, 2002a). According to the Skate SAFE Report, under the current 
regulations, gillnetters fishing in Southern New England are fishing 
with one-third fewer nets, resulting in a decrease of skate catches. 
The monkfish and dogfish gillnet fishery, primarily in the Mid-Atlantic 
region, do not catch as many skates in their gillnets since they are 
fishing with heavier twine (NEFMC, 2001). It is reported that the 
fishermen switched to the heavier twine to avoid catching skates (NEFMC 
2001). In addition, the Harbor Porpoise Take Reduction Plan requires 
fishermen west of the 72[deg] 30' line to use the heavier gear to avoid 
entanglements of harbor porpoise (NEFMC, 2001). To the extent that 
barndoor skate are present in the area where this heavier gear is used, 
less bycatch is expected. Estimates of skate bycatch on monkfish trips 
are currently not available. However, the overall impact of the 
Monkfish FMP should reduce the amount of skate bycatch (NEFMC, 2001).
    The Multispecies FMP is likely to impact skates and the skate 
fishery more than any other existing FMP. A significant overlap lies 
between multispecies and skate fisheries and the vessels that 
participate in these fisheries. Skate bycatch has been reduced in the 
multispecies fishery due to several years of restrictive management 
measures. Since the implementation of the multispecies DAS guidelines, 
multispecies fishing effort has been reduced by 50 percent from 
baseline levels which occurred before Amendment 5 to the Multispecies 
FMP. The Multispecies FMP uses both seasonal and year-round closed 
areas to reduce fishing mortality and to protect spawning stocks of 
cod, haddock, and yellowtail flounder. Multispecies Framework 33, 
implemented on May 1, 2000, requires

[[Page 61060]]

a large area closure on Georges Bank during the month of May as well as 
additional 1-month multispecies area closures. These closures provide a 
degree of protection for skate species by reducing fishing effort 
overall. However, it is important to note that seasonal and year-round 
closed areas may result in an effort relocation and perhaps not a 
complete effort reduction.
    The following multispecies gear restrictions also have an impact on 
skate fishing mortality. A primary restriction is a minimum mesh size 
requirement for all gillnet and trawl gear. According to the Skate SAFE 
Report, although there are no known studies on selectivity of mesh for 
skates, these restrictions undoubtedly have some impact on the size of 
fish caught. Another restriction is a limit on the number of nets 
fished by vessels that make day gillnet trips. Regulations implementing 
the Multispecies FMP also require that any vessel fishing in the Gulf 
of Maine, Georges Bank, and Southern New England Regulated Mesh Areas 
in Federal waters, are required to fish under DAS restrictions unless 
participating in an exempted fishery or are fishing with exempted gear 
(gear not capable of catching multispecies). An exempted fishery under 
the Multispecies FMP is one that has been determined to have minimal 
bycatch of regulated multispecies and will not jeopardize fishing 
mortality objectives. It is required that the percentage of regulated 
multispecies bycatch be less than 5 percent by weight of the total 
catch. For exempted fisheries in the Southern New England Exempted 
Area, skate bycatch is limited to 10 percent by weight of the total 
species on board to prevent the bycatch of multispecies that might 
occur in directed skate fisheries. The multispecies DAS program 
directly restricts the time available for vessels to fish for skates. 
Since the majority of skate fishing effort is controlled by the 
multispecies effort reduction program, reductions in multispecies 
fishing effort through DAS restrictions have resulted in and will 
continue to result in proportional reductions in skate fishing effort 
(NEFMC 2002b).
    Currently, as a result of a settlement agreement endorsed by a 
federal district court in Conservation Law Foundation v. Evans, 211 F. 
Supp. 2d 55 D.D.C. May 23, 2002), additional regulatory measures are 
being implemented to protect species managed under the Multispecies FMP 
from overfishing. These additional measures, effective as of August 1, 
2002, will remain in effect until implementation of Amendment 13 to the 
Multispecies FMP. The following additional measures have been 
implemented pursuant to the settlement agreement: A freeze on DAS used 
by a vessel to the level 20 percent below the highest annual level of 
DAS used during the fishing years 1996-2000; a restriction on the 
issuance of new open access hand-gear permits, and a decreased cod, 
haddock, and yellowtail flounder possession limit under that category; 
increased gear restriction for gillnets, hook-gear, and trawl nets; 
restrictions on yellowtail flounder catch. In addition, to be 
consistent with the court order in the lawsuit, NMFS has increased 
observer coverage on multispecies vessels to at least 5 percent until 
Amendment 13 is implemented.
    These measures will further aid in the protection of barndoor skate 
until completion of the Skate FMP. Since the majority of skate fishing 
occurs under multispecies DAS, any reduction in multispecies fishing 
effort will proportionally reduce the opportunity to fish for and catch 
skates. Gear restrictions in the multispecies fishery will reduce skate 
fishing mortality, and reduce the effort that is applied to the skate 
fishery. Restrictions in mesh size aid in the selection of certain fish 
sizes and, therefore, will also have an impact on the size of skates 
caught, such as juvenile barndoor skate and egg cases. Reduction in the 
number of gillnets that can be used in the multispecies fishery reduces 
the amount of gear in the water that is capable of catching skates. 
Lastly, an increase in observer coverage levels will provide additional 
information pertaining to the magnitude and species composition of the 
bycatch of skates in the multispecies fishery. This increased 
information will be valuable in improving barndoor skate populations 
and management.

Directed Fisheries

    The Skate SAFE Report outlines two types of directed fisheries for 
skates, the wing fishery and the bait fishery. A limited amount of 
directed skate fishing is also allowed under the Multispecies FMP. 
Directed skate gillnet and trawl fisheries are exempt in the portion of 
the Southern New England Regulated Mesh Area that is south of 40[deg] 
10' N. lat. since they have been determined to meet the 5 percent 
multispecies bycatch criteria for exempted fisheries under the 
Multispecies FMP. However, this area may limit directed skate fishing 
to a small portion of the overall range of skate species.
    According to the Skate SAFE Report, there are two existing and 
significant regulatory limitations on the directed skate bait fishery, 
which include the lobster regulations and the multispecies DAS 
requirements. Current restrictions outlined in the Skate SAFE Report 
for the lobster fishery consist of limited access permits, minimum 
lobster carapace size, prohibition of possession of certain lobsters, 
or parts, trap specifications, and landing limits for non-trap harvest.
    In 1994, NMFS implemented a 5-year moratorium on new entrants into 
the Exclusive Economic Zone (EEZ) lobster fishery by a limited access 
permit system (59 FR 31938, June 21, 1994). On December 6, 1999, 
Federal lobster regulations extended the moratorium indefinitely (64 FR 
68227). This moratorium limits the number of people that can 
participate in the lobster fishery, thus indirectly eliminating the 
possibility of any future increase in the amount of skates used as bait 
due to an increase in new entrants to the fishery.
    Newly implemented measures are of particular relevance to the skate 
fishery, including the establishment of six lobster management areas 
and associated restrictions. The various management areas have 
different trap limits associated with them. Nearshore management areas 
have relatively low trap limits; 800 traps in Area 1 versus 1,800 traps 
in Area 3. Vessel owners may decide to fish in several management 
areas; however, they must abide by the most restrictive trap limit of 
the areas they designate. These regulations are designed to limit 
effort in the lobster fishery. Therefore, any reduction in lobster 
fishery effort will indirectly reduce the amount of skates needed for 
use as bait.
    The fishery regulations already in place, which have become more 
restrictive over the past years, as well as various statutory 
requirements, are expected to continue to aid in the increase in 
barndoor skate abundance. There is no substantial information that 
indicates that barndoor skate are threatened or endangered due to the 
inadequacy of existing regulatory mechanisms.

E. Other Natural or Manmade Factors Affecting Their Continued Existence

    The petitioner expressed concern over inbreeding depression due to 
the population size of barndoor skate. The potential effects and 
magnitude of inbreeding depression are dependent upon the genetic 
composition of the species. Currently, there is no genetic information 
available for barndoor skate; therefore, we cannot determine at this 
time if inbreeding depression is a problem. However, it is unlikely 
that inbreeding depression is a significant issue given the wide 
geographic range and increasing population size of barndoor skate.

[[Page 61061]]

    Despite the combination of continued low abundance, suspected low 
intrinsic rate of increase and suspected late age of maturity, barndoor 
skates have persisted at low levels in U.S. waters over the past 30-40 
years (NEFSC, 2000). Long-lived species tend to be especially prone to 
excessive mortalities and rapid stock collapse, resulting in a recovery 
that may take decades. It is recognized that the rebuilding of barndoor 
skate will be a long and slow process, but the recent and continuing 
increases seen in abundance and size range indicate that the population 
is increasing. There is no evidence of any other natural or manmade 
factors affecting the continued existence of barndoor skate 
populations.

Determination

    The ESA defines an endangered species as any species in danger of 
extinction throughout all or a significant portion of its range, and a 
threatened species as any species likely to become an endangered 
species within the foreseeable future throughout all or a significant 
portion of its range (16 U.S.C. 1532(6) and (20)). Section 4(b)(1) of 
the ESA requires that the listing determination be based solely on the 
best scientific and commercial data available, after conducting a 
review of the status of the species and after taking into account those 
efforts, if any, being made by any state or foreign nation to protect 
and conserve the species.
    After reviewing the best scientific and commercial information 
available, NMFS has determined that listing of barndoor skate as 
threatened or endangered under the ESA is not warranted at this time. 
The following factors all indicate a positive trend for barndoor skate 
populations: The recent increases in abundance and biomass of barndoor 
skate observed during surveys; the expansion of known areas where 
barndoor skate have been encountered; the increases in size range, and; 
the increase in number of small size barndoor skate collected. This 
trend is not consistent with a species that is in danger of extinction 
throughout all or a significant portion of its range or likely to 
become endangered within the foreseeable future throughout all or a 
significant portion of its range. Furthermore, the major identifiable 
threat to the species, overfishing, is currently being reduced by 
existing regulatory measures affecting several northeast fisheries. In 
addition to regulatory measures already in place, NMFS intends to 
continue to work with the Council to fully develop and implement the 
Skate FMP. NMFS is not relying on the draft Skate FMP as a reason not 
to list barndoor skate, but rather noting that it is under development 
and will benefit barndoor skate populations when it is implemented.
    NMFS believes that remaining uncertainties regarding the status and 
population structure of the barndoor skate warrant leaving it on the 
agency's list of candidate species. If new information becomes 
available indicating that the species faces threats greater than are 
currently known, this decision will be revisited to determine whether 
ESA protection is appropriate.

References Cited

    Auster, P.J., and R.W. Langton. 1999. The effects of fishing on 
fish habitat. Pages 150-181 in L. Benaka, editor. Fish habitat: 
essential fish habitat and rehabilitation. American Fisheries Society, 
Symposium 22, Bethesda, MD.
    Bigelow, H.B., and W.C. Schroeder. 1953. Fishes of the Gulf of 
Maine. Fish. Bull., U.S. Fish. Wildl. Serv. 74(53).
    Kulka, D.W. 1999. Barndoor skate on the Grand Banks, Northeast 
Newfoundland and Labrador Shelves: Distribution in relation to 
temperature and depth based on research survey and commercial fisheries 
data. SARC 30 Working Paper, Canada DFO. 15p.
    Musick, J.A. 1999. Ecology and conservation of long-lived marine 
animals. Pages 1-7 in J.A. Musick, editor. Life in the slow lane: 
ecology and conservation of long-lived marine animals. American 
Fisheries Society Symposium 23, Bethesda, MD.
    New England Fishery Management Council. 2001. 2000 Stock Assessment 
and Fishery Evaluation (SAFE) Report for the Northeast Skate Complex.
    New England Fishery Management Council. 2002a. Draft Fishery 
Management Plan (FMP) for the Northeast Skate Complex: Including a 
Draft Environmental Impact Statement and a Preliminary Regulatory 
Economic Evaluation. 385p.
    New England Fishery Management Council. 2002b. Draft Fishery 
Management Plan (FMP) for the Northeast Skate Complex: Including a 
Draft Environmental Impact Statement and a Preliminary Regulatory 
Economic Evaluation. 412p.
    Northeast Fisheries Science Center. 2000. Report of the 30th 
Northeast Regional Stock Assessment Workshop (30th SAW): Stock 
Assessment Review Committee (SARC) Consensus summary of assessments. 
NEFSC Ref. Doc. 00-03; 477p.
    Simon, J.E., and K.T. Frank. 1999. Patterns of occurrence of 
barndoor skate Raja laevis in the Canadian Atlantic based upon research 
vessel surveys, industry surveys, and incidental catches in the 
commercial fishery. Unpublished manuscript.
    Sminkey, T.R., and J.A. Musick. 1996. Demographic analysis of 
sandbar sharks in the western North Atlantic. Fishery Bulletin. 94:341-
347.

Authority

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

    Dated: September 20, 2002.
Rebecca Lent,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 02-24515 Filed 9-26-02; 8:45 am]
BILLING CODE 3510-22-S