[Federal Register Volume 76, Number 244 (Tuesday, December 20, 2011)]
[Notices]
[Pages 78891-78898]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-32527]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[Docket No. 111205720-1718-01]
RIN 0648-XA740


Listing Endangered and Threatened Wildlife and Plants; 90-Day 
Finding on Petitions To List the Thorny Skate (Amblyraja radiata) 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 90-day finding for petitions to list the 
thorny skate (Amblyraja radiata) under the Endangered Species Act 
(ESA). We find that the petitions do not present substantial scientific 
information indicating the petitioned actions may be warranted. 
Accordingly, we will not initiate a review of the status of thorny 
skate at this time.

FOR FURTHER INFORMATION CONTACT: Kim Damon-Randall, NMFS, Northeast 
Regional Office (978) 282-8485 or Marta Nammack, NMFS, Office of 
Protected Resources (301) 427-8469. The petition and other pertinent 
information are also available electronically at the NMFS Web site at 
http://www.nero.noaa.gov/prot_res/CandidateSpeciesProgram/csr.htm.

SUPPLEMENTARY INFORMATION:

Background

    On August 11, 2011, we received a petition from the Animal Welfare 
Institute (AWI) requesting that we list, as a Distinct Population 
Segment (DPS), the Northwest Atlantic population of thorny skates as 
endangered or threatened throughout all or a significant portion of its 
range. In the alternative, AWI asked that we list the U.S. DPS of the 
thorny skate as endangered. AWI also requests the designation of 
critical habitat for the thorny skate in U.S. waters.
    On August 23, 2011, we received a petition from WildEarth Guardians 
and Friends of Animals (WEG & FA) 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 DPSs of these species that may exist, and, in particular, 
the petitioners requested that we list the U.S. population of thorny

[[Page 78892]]

skate as a threatened or endangered DPS.
    The joint USFWS/NMFS petition management handbook 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. Given that, this 90-day finding will address the AWI 
petition for thorny skate and the portion of the petition from WEG & FA 
that addresses thorny skate. The remainder of the WEG&FA petition will 
be addressed in a separate 90-day finding. In this finding, the AWI and 
WEG & FA petitions will be referred to as ``the petitions,'' and the 
three organizations will be referred to collectively as ``the 
petitioners.''
    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. The petitioners claim that the species' life history 
characteristics and limited ability to recover in response to abrupt 
population declines makes the thorny skate particularly vulnerable to 
overexploitation. The petitions cite steady declines in biomass indices 
in the United States since the mid-1970s and claim that unsustainable 
bycatch mortality and illegal landings threaten the species' survival. 
The petitioners also state that regulatory mechanisms in the United 
States and Canada have been insufficient to promote significant stock 
rebuilding and improve the species' status.

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 (ESA Section 4(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 review of 
the status of the species. Section 4(b)(3)(B) requires the Secretary to 
make a finding as to whether 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.'' A ``species'' is defined in section 3 of 
the ESA to include ``any subspecies of fish or wildlife or plants, and 
any distinct population segment of any species of vertebrate fish or 
wildlife which interbreeds when mature.'' 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 (detailed below).
    Under the DPS policy, a population segment may be determined to be 
discrete if: (1) It is markedly separated from other populations of the 
same taxon as a consequence of physical, physiological, ecological or 
behavioral factors; and/or (2) the population is delimited by 
international boundaries within which differences in control of 
exploitation, management of habitat, conservation status, or regulatory 
mechanisms exist that are significant in light of section 4(a)(1)(D) of 
the ESA.
    The DPS policy also cites examples of potential considerations 
indicating significance, including: (1) Persistence of the discrete 
population segment in an ecological setting unusual or unique for the 
taxon; (2) evidence that loss of the discrete population segment would 
result in a significant gap in the range of the taxon; (3) evidence 
that the DPS represents the only surviving natural occurrence of a 
taxon that may be more abundant elsewhere as an introduced population 
outside of its historic range; or (4) evidence that the discrete 
population segment differs markedly from other populations of the 
species in its genetic characteristics.
    The ESA defines an endangered species as ``any species which is in 
danger of extinction throughout all or a significant portion of its 
range (ESA section 3(6)).'' The ESA defines a threatened species as a 
species that is ``likely to become an endangered species within the 
foreseeable future throughout all or a significant portion of its range 
(ESA section 3(20)).'' Under the ESA, a listing determination can 
address a species, subspecies, or a DPS of a vertebrate species (see 
ESA section 3(16)). 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 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 manmade factors affecting its continued 
existence. Listing determinations are to be made solely on the basis of 
the best scientific and commercial data available, after conducting a 
review of the status of the species and taking into account efforts 
made by any state or foreign nation to protect such species.

Species Description

    The thorny skate occurs on both sides of the Atlantic. In the 
western North Atlantic, it ranges from western Greenland to South 
Carolina, and in the eastern North Atlantic, it ranges from Iceland to 
the southwestern coasts of Ireland and England (Bigelow and Schroeder, 
1953). This species is characterized by a row of 11 to 19 large thorns 
running down the midline of the back and tail (Bigelow and Schroeder, 
1953; Collette and Klein-MacPhee, 2002). Thorny skate are generally 
brown dorsally with a white ventral surface. They may reach lengths of 
over 39 inches (991 mm), but maximum size varies over its range.
    According to Collette and Klein-MacPhee (2002), females deposit a 
single fertilized egg capsule which ranges in size from 2 to 4 inches 
(48 to

[[Page 78893]]

96 mm) in length and 1.33 to 3 inches (34 to 77 mm) in width. While 
females with fully formed egg capsules are captured year round, the 
percentage of mature females with capsules is highest during the summer 
(Collette and Klein-MacPhee, 2002). Thorny skate feed on benthic 
invertebrates and fish. Thorny skates are found over a wide variety of 
substrates including sand, broken shell, gravel, pebbles, and soft mud 
and are primarily found from 20 to 3,900 feet (18 to 1200 m) deep 
(Collette and Klein-MacPhee, 2002). They appear to make seasonal 
migrations that have been noted on the Scotian Shelf and the Grand 
Banks, but specific details on the spatial patterns and timing are 
lacking (NEFSC, 2003). Kulka and Miri (2003) report a change in the 
spring and fall distributions resulting in a higher density and greater 
proportion of biomass being found in deeper waters during the spring. 
These aggregations, they note, appear to be correlated with warmer 
relative temperatures.
    Sulikowski et al. (2005) aged thorny skate in the Gulf of Maine and 
estimated the oldest age to be 16 years for both males and females. For 
females, 50 percent maturity occurred at approximately 11 years and 875 
mm (34.5 inches) total length (TL); while for males, approximately 10.9 
years and 865 mm (34 inches) TL (Sulikowski et al., 2006).

Analysis of Petition and Information Readily Available in NMFS Files

    The following sections contain information found in the petition 
and readily available in our files to determine whether a reasonable 
person would conclude that an endangered or threatened listing may be 
warranted as a result of any of the factors listed under section 
4(a)(1) of the ESA.

Analysis of DPS Information

    The AWI petition claims that the Northwest Atlantic thorny skate 
population, encompassing Canadian and United States waters, satisfies 
both the ``discrete'' and ``significant'' requirements for DPS 
designation. AWI argues that the Northwest Atlantic population is 
discrete because it is markedly separated from other populations due to 
physical and biological factors, and significant because loss of the 
DPS would result in a significant gap in the taxon's range. AWI 
acknowledges that scientific literature on thorny skates demarcates the 
Northwest and Northeast Atlantic populations. AWI states that research 
indicates that small groups of thorny skates may make limited seasonal 
migrations, but it is generally considered a sedentary species. In 
addition, they state that there are no scientific studies that indicate 
trans-Atlantic migration or significant genetic interface between the 
Northwest and Northeast Atlantic stocks.
    The AWI petition also presents an alternative justification for 
considering the thorny skate population in United States waters as a 
DPS. The petition claims that the United States population is discrete 
because it is delimited by international governmental boundaries 
(delineating the United States and Canada) and significant differences 
exist in the control of exploitation, conservation status, and 
regulatory mechanisms. They further claim that evidence suggests that 
the U.S. DPS may be discrete because it is markedly separated from the 
Canadian population as a consequence of physical and/or ecological 
factors and that the U.S. population meets the significance criterion 
of the DPS policy because the loss of the DPS would result in a 
significant reduction in the range of the taxon. The AWI petition 
states that the thorny skate is managed as a single stock in Canada 
which dominates Canadian commercial catches, representing approximately 
95 percent of the total skates caught. The petitioner contrasts this 
with the situation in the United States where there is no directed 
fishery, claiming the population decline is attributed to retained 
incidental catches, bycatch, and discard mortality. The petitioner also 
states that the Canadian population has stabilized, whereas the U.S. 
population is being overfished and continues to decline.
    WildEarth Guardians and Friends of Animals request that if the 
Secretary determines that the thorny skate is not threatened or 
endangered throughout all or a significant portion of its range, that 
the population of thorny skates in U.S. waters be listed as threatened 
or endangered as a DPS. The petitioners claim that the U.S. population 
of thorny skate is discrete from the Canadian and Northeast Atlantic 
skate populations because fish in the Gulf of Maine are larger, produce 
larger egg capsules, and have distinct behavior characteristics. They 
specifically cite different diets and the year-round reproduction of 
thorny skates in the Gulf of Maine compared to autumn reproduction of 
thorny skates in the Grand Banks. Furthermore, they state that studies 
of skate migration demonstrate that, although thorny skates undergo 
seasonal migrations from shallow to deeper waters, they do not undergo 
any longer-range migrations, nor do they move far from their starting 
location during their lifetimes. The petitioners also note that the 
U.S. and Canadian populations of thorny skates are separated by an 
international boundary and state that the conservation status of thorny 
skates varies significantly across the U.S./Canadian border and that 
the regulatory regimes also differ significantly across the border.
    The petitioners assert that the U.S. population of thorny skates 
meets several of the criteria for significance including that it 
persists in an unusual and unique ecological setting for the taxon 
because thorny skates off the U.S. coast represent the southernmost 
population of the species in the world. They state that, as global 
temperatures rise, these adaptations to warmer temperatures will become 
even more important to the species' survival, and, therefore, 
conservation of the U.S. population with its particular warm-water 
adaptation is essential to the conservation of the species as a whole. 
They further claim that loss of the U.S. population would result in a 
significant gap in the range of the species because it would result in 
the extirpation of the species from several hundred miles of the 
continental shelf where it is now viable. Finally, they indicate that 
evidence suggests that the U.S. thorny skate population exhibits 
genetic characteristics that differ from those of other populations of 
the species.
    The petitioners cite thorny skate tagging studies as evidence of 
their relative lack of dispersal and high site fidelity, but these 
studies actually provide a more complex view. Templeman (1984) states 
that most thorny skates were recaptured within 60 miles (97 km) of 
their tagging location, but also that 13 percent of skates were 
recaptured 100 to 240 miles (161 to 386 km) from where they were 
tagged. Some of these moved considerable distances over short 
durations. Templeman (1984) concluded that thorny skates are capable of 
longer migrations than other skates that have been studied.
    The thorny skate ranges across the entire North Atlantic Ocean, and 
recent population genetics research indicates that there is little 
structure in populations across its range (Chevolot et al., 2007; 
Ostrow et al., 2008). These results would argue against the existence 
of a U.S. or Northwest Atlantic DPS, and instead may indicate that 
these areas are components of a larger panmictic stock, connected by 
large-scale dispersal of individual skates (Chevolot et al., 2007). The 
petitioners state that ``there are no scientific studies that indicate 
trans-Atlantic migration or significant genetic interface between the 
Northwest and Northeast Atlantic stocks.'' However, Chevolot et al. 
(2007)

[[Page 78894]]

examined the mitochondrial DNA of thorny skates sampled from 
Newfoundland, Iceland, Norway, and the North Sea regions, and found 
that genetic diversity was relatively homogeneous across all sites. 
They concluded that ``the migratory range [of the thorny skate] is much 
greater than previously acknowledged.'' Recent DNA microsatellite 
analysis has also revealed that there is no significant genetic 
structure for thorny skates within the Gulf of Maine, or between the 
Gulf of Maine and Canada (Ostrow et al., 2008). Chevolet et al. (2007) 
note that the near absence of genetic differentiation in thorny skate 
over the North Atlantic does not conform to predictions based on life 
history characteristics and acknowledge that the lack of power related 
to small sample size and the use of only one molecular marker might 
provide an explanation. However, they note that a parallel study using 
the same marker for another skate species did find strong and highly 
significant structure at the ocean basin scale. Existence of a 
Northwest Atlantic or a U.S. DPS is not well supported by the available 
genetics studies because these do not indicate significant differences 
that would be evidence of discreteness.
    Given these genetic and tagging study results, we do not find that 
the petitioners have presented substantial scientific information 
supporting the delineation of a Northwest Atlantic DPS or a U.S. DPS of 
thorny skates. The petitioners did present information about 
differences in management regimes in the United States and Canada for 
consideration of a discreteness determination under the DPS policy. The 
petitioners did state that ``the differences in regulatory regime, 
control of exploitation, and conservation status across this border 
further indicate that the U.S. population is ``discrete'' within the 
meaning of the DPS policy.'' The DPS policy requires identifying 
differences in control of exploitation, management of habitat, 
conservation status, or regulatory mechanisms and an explanation of how 
those differences are significant in light of section 4(a)(1)(D) of the 
ESA. The petitioners did not present information on differences in 
management regimes between the United States and Northeast Atlantic. 
Sufficient time is not available within the 90-day initial petition 
review phase to conduct a review of international regulations, so for 
the purposes of this finding and to err on the side of the species, we 
consider the species range-wide as well as assume that a U.S. 
population of thorny skates could be demonstrated to constitute a DPS.

Abundance

    The petitioners cite the 2008 Skate Stock Assessment and Fishery 
Evaluation (SAFE) Report prepared by the NEFSC as demonstrating a 
precipitous decline in thorny skate abundance and biomass in U.S. 
waters since the late 1970s. The AWI petition states that the most 
recent 3-year average mean biomass survey from 2008-2010 (0.245 kg/tow) 
is the lowest in the time series.
    The petitioners state that the IUCN lists the U.S. population of 
thorny skates as ``Critically Endangered'' and the Canadian population 
as ``Vulnerable'' throughout its range in the Northwest Atlantic Ocean. 
They conclude that the IUCN listing rubric is stricter than the ESA 
listing rubric because the IUCN designates a species as ``Critically 
Endangered'' when it is ``considered to be facing an extremely high 
risk of extinction in the wild'' and ``Vulnerable'' when it is 
``considered to be facing a high risk of extinction in the wild,'' and 
the IUCN only lists a species or population if it is facing extinction 
rangewide.
    The Northeast Fisheries Science Center (NEFSC) has monitored skate 
biomass annually in its bottom trawl survey since 1963. This survey is 
the only source of information on the relative abundance of thorny 
skates in U.S. waters, which are primarily distributed in the Gulf of 
Maine. Based on this information, the survey biomass index of thorny 
skates has steadily declined from a high 3-year average of 6.17 kg/tow 
in 1969-1971, to a low of 0.26 kg/tow in 2008-2010 in U.S. waters. We 
note that the AWI petition compares the biomass index to the formerly 
used reference point (4.41 kg/tow) and not the updated biomass target 
(defined as the stock biomass that would produce maximum sustainable 
yield) and thresholds (defined as an unacceptably low biomass) (4.12 
kg/tow and 2.06 kg/tow, respectively) adopted by the Data Poor Stocks 
Working Group (DPSWG) and Amendment 3 to the Skate Fishery Management 
Plan (FMP) in 2009. For thorny skate, the 2008-2010 NEFSC autumn 
average biomass index of 0.26 kg/tow is well below the biomass 
threshold reference point (2.06 kg/tow), indicating that the species is 
in an overfished condition. The 2008-2010 index is lower than the 2007-
2009 index by 4.4 percent, but overfishing is not occurring as this 
decline is not more than 20 percent.
    AWI further states that Canadian indices of thorny skate have also 
demonstrated a precipitous decline over the past 4 decades and cites 
evidence of a hyper-aggregation with 80 percent of the biomass now 
concentrated in 20 percent of the area along the southwest slope of the 
Grand Banks (Kulka et al., 2007). As noted by Kulka et al. (2006), in 
the early 1980s, thorny skates were distributed over the entire Grand 
Banks in moderate to high concentrations, but by the late 1990s, much 
of the biomass was concentrated in the southwest. The proportion of the 
surveyed area containing no skates increased from about 2 percent in 
1980-1988 to 22 percent in 2004-2005. During 1980-1988, about 57 
percent of the biomass was located within 20 percent of the survey 
area, and by 2001-2005, 78 percent of the biomass was located within 20 
percent of the survey area. Therefore, the area occupied by thorny 
skates has decreased, and the population has become increasingly more 
concentrated in a smaller area where bottom temperatures are warmest. A 
very similar pattern of aggregation was observed for northern cod just 
prior to its collapse (Rose and Kulka, 1999). Kulka and Miri (2003) 
state that aggregation and reduced area of occupancy led to the cod 
being increasingly more vulnerable to exploitation, and they state this 
is very similar to what is happening to thorny skate. They do 
acknowledge that it is unknown whether these spatial dynamics are an 
indication of a skate stock under stress. The 2007 update by Kulka and 
Miri noted that the species had shown a minor re-expansion in its 
distribution in the past 3 to 4 years (Kulka and Miri, 2007).
    Kulka and Miri (2006) noted that the average weight of thorny skate 
in Canadian surveys had declined from 2 kg in the early 1970s to 1.2 kg 
in 1996, with the majority of this decline occurring in the 1990s 
concurrent with the decline in survey biomass. They reported that 
average weight had increased to about 1.6 kg since 1996. They note that 
the decline of thorny skate, particularly on the northern Grand Banks, 
is concurrent in space and time with the decline of many other demersal 
species and occurred during a period when bottom temperatures were 
below average.
    The IUCN reviewed the status of thorny skate in 2004 and concluded 
that the extent of decline warranted a global assessment of 
``vulnerable,'' but ``critically endangered'' in U.S. waters. They 
noted that the species was relatively stable in recent years in Canada 
and the Northeast Atlantic, yet declining in the United States. The 
species was assessed as a species of Least Concern in the Northeast 
Atlantic. They also noted that the overall

[[Page 78895]]

abundance (whether divided among subpopulations or not) still 
constitutes several hundred million individuals. Spring surveys on the 
Grand Banks indicate a minimum biomass estimate for the Northwest 
Atlantic of 100,000 tons that has been stable or increasing slightly 
over the last 15 years, as reported in the 2004 IUCN assessment. The 
reasons cited for the ``critically endangered'' classification for U.S. 
waters include low relative abundance below the fisheries limit 
reference point, the long-term population decline, lack of population 
increase with strict management laws, and the inability to monitor 
species specific landings.
    For the Northeast Atlantic, the IUCN assessment states that the 
species is common and is the most abundant skate in the North Sea and 
has shown a marked increase between 1970 and 1983 in the Central North 
Sea and from 1982 to 1991 in English groundfish surveys.

ESA Section 4(a)(1) Factors

    The AWI petition presents information on the five ESA factors but 
states that the continued survival of the Northwest Atlantic DPS of 
thorny skates is endangered by the following three of the five factors 
enumerated in the ESA: (B) overutilization for commercial, 
recreational, scientific, or educational purposes; (D) inadequacy of 
existing regulatory mechanisms; and (E) other natural or manmade 
factors.
    WildEarth Guardians and Friends of Animals claim that thorny skate 
are threatened by direct and indirect exploitation. They state that the 
life history of thorny skate, which makes it especially vulnerable to 
exploitation, argues even more urgently for the adoption of strong 
regulatory protections provided by the ESA.

Present or Threatened Destruction, Modification or Curtailment of 
Habitat or Range

    The petitions state that bottom trawl fisheries are responsible for 
up to 86 percent of the thorny skate caught as bycatch in the United 
States and that trawling in general has been shown to have negative 
impacts on benthic communities, but acknowledge that there are no 
direct studies quantifying the impact of trawling on thorny skate 
habitat in the Northwest Atlantic.
    The petitions state that research indicates that the use of 
groundfish trawling gear degrades benthic habitat structure by removing 
or damaging epifauna, reducing bottom roughness, and removing structure 
forming organisms. They claim that such habitat degradation affects the 
availability of the thorny skates' prey as well as the skate's ability 
to avoid predators. They further note that although thorny skate were 
once found throughout Grand Banks, 80 percent of the survey biomass in 
Canadian surveys is now concentrated into 20 percent of the area along 
the southwest slope of the Grand Bank. They cite the IUCN report 
statement that a similar pattern of hyper-aggregation was observed 
immediately before the collapse of a cod population. Information in the 
petitions and readily available in our files does not indicate that 
thorny skate may be threatened or endangered due to present or 
threatened habitat destruction, modification or curtailment.

Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    The AWI petition states that population estimates for the thorny 
skate in Canadian waters indicate stable, but not increasing numbers; 
in U.S. waters, survey biomass indices have been declining for decades, 
despite the Federal ban on the landing and possession of thorny skates 
since 2003. The petition claims that reports of illegal thorny skate 
landings suggest that thorny skates are being exploited in the 
commercial wing market. AWI also cites concern over discards and 
discard mortality, with NEFSC assuming 50 percent discard mortality 
rate. WildEarth Guardians and Friends of Animals raise concern that the 
directed skate take will likely continue to increase as the use of 
other groundfish becomes more restricted and less profitable. They also 
claim that as long as the skate bait and wing trade continues to target 
the smaller little and winter skates, thorny skates will also be 
threatened. They also express concern over thorny skate discards and 
cite studies off Australia and the Falkland Islands suggesting that 
acute discard mortality rate may be as high as 56 percent. They cite 
the 2005-2007 average thorny skate biomass index reported by the NEFSC 
as 0.42 kg/tow and state that is well below the biomass threshold of 
2.2 kg/tow. Finally, they cite the 2005-2007 average biomass index as 
being 24 percent lower than the previously reported average biomass 
(0.55 kg/tow, 2004-2006) as evidence that unsustainable take is still 
occurring. Skates are harvested in two very different fisheries, one 
for lobster bait and one for wings for food. The fishery for lobster 
bait is a more historical and directed skate fishery, involving vessels 
primarily from Southern New England ports that target a combination of 
little skates and to a much lesser extent juvenile winter skates. The 
fishery for skate wings evolved in the 1990s as skates were promoted as 
an underutilized species. The wing fishery is a more incidental fishery 
that involves a larger number of vessels located throughout the region. 
Vessels tend to catch skates when targeting other species such as 
groundfish, monkfish, and scallops and land them if the price is high 
enough (NEFMC, 2009).
    Thorny skates in the Atlantic U.S. Exclusive Economic Zone have 
been managed under authority of the Magnuson-Stevens Fishery 
Conservation and Management Act (Magnuson-Stevens Act) by the New 
England Fishery Management Council's fishery management plan for the 
Northeast (NE) Skate Complex (Skate FMP) since September 2003. Since 
that time, possession and landing of thorny skates has been prohibited, 
but the survey biomass index has continued to decline. It is important 
to note that based on the limited productivity of this species (long-
lived, late maturity, low fecundity, etc.), rebuilding to target levels 
(4.12 kg/tow) was estimated to take at least 25 years (i.e., 2028) 
(NEFMC, 2009). The thorny skate's low productivity makes it vulnerable 
to exploitation, but also suggests that the population is inherently 
slow to respond to fishery management efforts. Elasmobranch fishes are 
very resilient and mobile species that move when environmental 
conditions change to suboptimal levels. This suggests that if thorny 
skates are sensitive to environmental changes (e.g., increasing bottom 
water temperatures), they would likely emigrate to other more suitable 
habitat. Rather than dying off, the population may be shifting en masse 
to deeper or more northern waters outside the Gulf of Maine survey 
area. Such population shifts have been documented in the winter skate 
(Frisk et al., 2008), and are also likely contributing to the 
increasing survey biomass for barndoor skate.
    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. The preliminary 
discard mortality rate estimate for thorny skate (up to 72 hours post-
release) is only approximately 12 percent (n=188), suggesting that this

[[Page 78896]]

species is relatively resilient to discarding.
    The petitions make a number of inaccurate assertions about 
misreporting and underreporting of discard rates. AWI incorrectly 
claims that the discard rate is contingent on the fishers' self-
reporting. In fact, discard rates are estimated by using independent 
observers, who are randomly assigned to sample a fraction of the fleet 
using a scientific survey approach. As a result, the estimates are 
highly precise. AWI also erroneously assumed that the numbers in the 
Skate PDT Document have a large margin of error. Table 7A in the SBRM 
report, however, shows an overall coefficient of variation of about 5 
percent for 2009, 2010, and 2011 (Wigley et. al., 2011).
    Amendment 3 to the Skate FMP was designed, in part, to end 
overfishing and promote rebuilding of overfished thorny skate to 
achieve the biomass target within the mandated rebuilding schedule, or 
earlier if possible, and to prevent overfishing of all managed skates. 
Amendment 3 and the associated Final Environmental Impact Statement 
(FEIS) conclude that the landings and catch limits proposed by the 
amendment have an acceptable probability of promoting biomass growth 
and achieving the rebuilding (biomass) targets for thorny skates.
    Based on new life history parameter estimates, the Council 
estimated in 2003 that it takes a female thorny skate 15 years to 
replace its own spawning capacity, which by definition is a mean 
generation time. Thus, the maximum rebuilding period allowed by the MSA 
is 25 years (10 years plus one mean generation time), or 2028 when 
counted from the FMP implementation in 2003, when thorny skate was 
determined to be overfished. From the biomass in 2007 (0.42 kg/tow), it 
would take an average annual increase of 13.2 percent to rebuild to the 
4.41 kg/tow target by 2028. The PDT advised the Council that the best 
estimate of the maximum intrinsic rate of population growth is 0.17, so 
achieving the biomass target within the rebuilding schedule appears to 
be achievable. The purpose of this analysis is to estimate the ability 
of the thorny skate's population to grow based on its biological 
limitations. It is most appropriate to use the maximum intrinsic rate 
of increase because that provides the benchmark for how quickly the 
stock can potentially rebuild to the target under optimal conditions. 
The fishery management plan should attempt to provide those conditions.
    Regarding the petitioner's concern over the vulnerability of thorny 
skates to the skate wing fishery, according to port sampler data 
provided by the NMFS Northeast Region Analysis and Program Support 
Division, the occurrence of thorny skates in skate wing landings has 
been significantly reduced since 2006. Out of 50,653 skate wings 
sampled between 2007 and 2010, only 353 (0.7 percent) were identified 
as thorny skate wings. There has been a general decline in the presence 
of thorny skates in the wings sampled as reflected in the following 
data: 9.22 percent in 2006; 1.54 percent in 2007; 0.13 percent in 2008; 
0.43 percent in 2009; and 0.61% in 2010. This suggests that the current 
possession prohibition is very effective at minimizing fishing 
mortality on this species (particularly when considered in conjunction 
with the recent data on discard mortality). The Skate FMP implemented 
species-specific reporting codes for landed skates, but most skate wing 
landings are reported as Skate Wings (code 3651) or Winter Skate (code 
3671). The argument that the lack of species-specific reporting in the 
skate fishery somehow promotes illegal thorny skate landings is flawed. 
Based on the port sampler data, we know that thorny skates are 
currently extremely uncommon in fishery landings, although illegal 
landings may have been more common in the past (NEFMC, 2009).
    The statement in the petitions that thorny skate distribution 
overlaps with the distribution of winter skate and its directed 
fisheries is exaggerated. Thorny skates are primarily distributed in 
the deeper waters of the Gulf of Maine, while winter skates are 
distributed on Georges Bank and into southern New England shelf waters. 
There is actually very little overlap between thorny and winter skates 
and the fisheries that interact with them.
    In 1995, Canada established a regulated skate fishery inside its 
200-mile limit following the collapse of major groundfish stocks in 
Canada in the early 1990s (Kulka and Miri, 2003). Since the mid 1980s, 
Spain, Portugal, and Russia have prosecuted a directed fishery for 
skate outside of Canada's 200-mile limit on the Tail of the Grand Banks 
(Kulka and Miri, 2003).
    The IUCN assessment of the Northeast Atlantic states that thorny 
skates are occasionally landed as bycatch of demersal fisheries, but 
its distribution lies outside the main beam trawling areas. It states 
that thorny skate has a relatively small length at first maturity and 
demographic modeling suggests that it is less susceptible to fishing 
mortality in this region than other larger bodied skate species.
    In the United States, thorny skates are currently categorized as 
overfished, but overfishing is not occurring. The available information 
indicates that previous fishing levels are responsible for the current 
low abundance of the species. Given the species' life history, recovery 
from these low levels was predicted to take a significant amount of 
time, and current observations demonstrate that the 2003 FMP's 
rebuilding schedule is achievable. Therefore, no substantial scientific 
information has been presented to indicate that current discards or 
illegal landings in the wing fishery pose a significant threat to the 
species.

Predation and Disease

    The petitioners claim that even a normal rate of predation could 
have a significant impact on the already severely depleted thorny skate 
population and states that the Secretary should fully consider the 
risks posed to the thorny skate population from predation in assessing 
the status of the species. They also state that thorny skates are host 
to a wide variety of parasites and again state that the Secretary 
should fully consider the risks posed to the thorny skate population by 
parasitism in assessing the status of the species. The petitioners 
state that disease and predation are not currently assessed as 
significant threats to the species' survival. Thus, there is no 
information in the petitions nor is there any in our files that 
suggests that disease and predation are significant factors affecting 
the continued existence of this species.

Inadequacy of Existing Regulatory Mechanisms

    The specific regulatory concerns cited in the AWI petition include 
a general lack of species-specific identification, both on-boat and at 
landing. The petitioner states that positive species identification at 
landing is hindered because current regulations allow vessels to 
possess and/or land skates as wings only (wings removed from the body 
of the skate and the remaining carcasses discarded). AWI also states 
that the designation of thorny skates as both prohibited and overfished 
allows room for inconsistent enforcement of the law. Specifically, they 
highlight the different penalties for violations of taking or retaining 
overfished species compared to possession of prohibited species. The 
petition states that the existing regulatory mechanisms in the FMP are 
inadequate to promote the recovery of the thorny skate in U.S. waters 
and may actually be sponsoring the species' continued decline. Finally, 
the petition also states that Canada lacks substantive protective 
regulatory

[[Page 78897]]

mechanisms for thorny skate and has not afforded a conservation status 
by the Committee on the Status of Endangered Wildlife in Canada 
(COSEWIC).
    The petitioners state that data on skate discard rates are 
``contingent on the fishers' self-reporting.'' This is not accurate; 
discard rates are estimated based on skate discards sampled by at-sea 
observers, and extrapolated based on the magnitude of landings. Based 
on new research, the 2008-2010 discard mortality rate (the percentage 
of skates that die after they are thrown overboard) of 50 percent for 
both 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 state that over 99 percent of all landings are 
reported as ``unclassified skates,'' and state that because the 
species-specific reporting requirements are not enforced, the 
prohibition on possessing thorny, barndoor, and smooth skates is 
essentially meaningless. They further state that the FMP only requires 
vessels to report discarded skates by size as either small or large. 
The petitions state that even if the regulations prohibiting landing 
and possession of thorny, barndoor, and smooth skates were effectively 
enforced, they would do nothing to prevent discard mortality, which may 
account for a large percentage (even the majority) of human-induced 
mortality in these species.
    The potential impact of the lack of species-specific reporting in 
the skate fishery on the survival of thorny 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). Thorny skate wings are easily distinguishable from 
legal winter skate wings with a minimal amount of training, and port 
samplers and enforcement agents have received this training. Landing of 
thorny skates may have been more frequent in the past, but it has been 
dramatically curtailed since the prohibition on possession went into 
effect. Mislabeling of skate products does not appear to be widespread 
at U.S. ports, and enforcement agents have been trained to correct 
mislabeling if they observe it.
    While the 2008-2010 3-year average biomass survey index represents 
the all-time low in the time series for thorny skate, the biomass 
survey index increased modestly in 2009 and 2010. The petitioners argue 
that the Skate FMP has proven ``inadequate to promote the recovery of 
thorny skate in United States waters and may actually be sponsoring the 
species' continued decline'' but have not presented substantial 
scientific information to support this claim. The Skate FMP (including 
the prohibition on possession of thorny skate) was implemented 8 years 
ago, and Amendment 3, which established the first annual catch limits 
for skates and defined the rebuilding timeline for thorny skate, was 
only implemented in July 2010. These actions do not provide evidence of 
a lack of regulatory control; rather, they indicate that significant 
efforts have been implemented to protect thorny skates using existing 
regulatory mechanisms. The information presented by the petitioner and 
otherwise available to us does not lead a reasonable person to conclude 
that the low abundance of thorny skate is due to a current lack of 
regulations in place. Given the low productivity of thorny skates, it 
is likely to take several more years before the survey biomass index 
properly reflects the impacts of these fishery management decisions. 
Therefore, the AWI petition does not present substantial scientific 
information to lead a reasonable person to conclude that thorny skates 
are threatened or endangered due to inadequate regulatory mechanisms.

Other Natural or Manmade Factors Affecting Its Existence

    The third factor cited by AWI as a reason for listing is other 
natural or manmade factors. Specifically, they claim that global 
warming poses a long-term threat to Northwest Atlantic thorny skates 
and their recovery from depletion. The petition claims that ocean 
temperatures are rising, and this along with an increase in global 
temperatures causes adverse effects on thorny skate.
    The petitioners state that the life history characteristics of 
large-sized skates make them particularly vulnerable to exploitation. 
They state that thorny skate are not likely to recover quickly from 
their current low levels, especially in the face of continued 
overutilization. One of the petitions states that evidence suggests 
that a recent decline of thorny skates in the northern part of the 
Grand Banks correlates with a period of abnormally cold water 
temperatures and concludes that the thorny skate population may be 
threatened by changes in average water temperatures caused by climate 
change. They suggest that the Secretary should fully consider the 
possible threat of climate change to the thorny skate population in 
assessing the status of the species.
    The other petitioner hypothesizes that global climate change, and 
rising ocean temperatures in the thorny skate's range, may pose a 
direct threat to the species' survival. Little specific information is 
provided to link climate change to specific impacts on thorny skate. 
One possibility is that global warming could cause a range shift (e.g., 
northward distribution shift) of the thorny skate population. This 
could result in lower abundance in the southern fringe of its range 
(i.e., a contraction or movement out of the Gulf of Maine to colder 
waters, rather than an actual decline in overall biomass). More 
research is necessary to investigate if there is a correlation between 
Gulf of Maine water temperatures and thorny skate biomass, but the 
available information on thorny skate temperature preferences suggests 
that this could be a possibility. However, rather than contributing 
directly to natural mortality of thorny skates, it is more likely that 
such temperature changes would result in large-scale distribution 
shifts over time. In the 2020 to 2060 time period, bottom temperatures 
in the Gulf of Maine are projected to increase by about 1[deg]C across 
three emission scenarios examined (Hare et al., in press). In the 2060 
to 2100 time period, the changes in temperature differ among the 
emission scenarios. Under the B1 scenario (lower emissions), bottom 
temperatures are projected to increase by ~1.8 [deg]C. Under the A1B 
and A2 scenarios (higher emissions), bottom temperatures are projected 
to increase by approximately 2.4 [deg]C. There is not much difference 
between the A1B and A2 scenarios because under these scenarios, 
CO2 emissions do not start to diverge until the end of the 
21st century (Nakicenovic et al., 2000). The impact of these projected 
temperature changes on thorny skate and its habitat is unknown at this 
time.
    There is uncertainty regarding the role of temperature in driving 
or contributing to the historical and current distribution and 
abundance of thorny skate and even greater uncertainty regarding 
potential future impacts of climate change on the species throughout 
its range. Given the above, the petitions and available information in 
our files do not lead a

[[Page 78898]]

reasonable person to conclude that other natural or manmade factors may 
cause thorny skates to be threatened or endangered at this time.

Critical Habitat

    The petitioners request that we designate critical habitat for 
thorny skates, upon finding that the species is endangered or 
threatened. They state that research has found that thorny skates 
prefer sand, gravel, broken shells, and soft mud substrata at depths 
between 37 and 108 meters and, therefore, state that habitat conforming 
to these specifications is essential to the conservation of thorny 
skates. Accordingly, the petitioners request that we designate as 
critical habitat all areas along the U.S. coast from the Gulf of Maine 
to South Carolina featuring these characteristics.

Similarity of Appearance Provision of the ESA

    The petitioners state that if we determine that some of the skate 
species included in the petitions warrant listing while others do not, 
we should nonetheless list those species not found to be threatened or 
endangered, as well as other members of the skate complex, as listed 
species in accordance with section 4(e) of the ESA. They argue that 
while it is already difficult to differentiate skates by species, it is 
even more difficult to differentiate skate wings by species. They raise 
particular concern over the risk of confusing juvenile winter skates 
and little skates, which they state would make the enforcement of a 
prohibition on take of winter skates extremely difficult. The 
petitioners claim that the problems with species differentiation and 
enforcement of species-specific take prohibitions demonstrate that 
enforcement will not be effective unless we treat all members of the 
skate complex as subject to the same regulations.

Conclusion

    Scientific information presented by the petitioners and otherwise 
available to us indicates that it is unlikely that the Northwest 
Atlantic population of thorny skates is discrete and significant. 
Contrary to the petitioner's assertions, there is no evidence of 
reproductive isolation of any subpopulation of thorny skate across the 
North Atlantic Ocean. Connectivity across broad geographic regions 
reduces the overall risk of extinction, and buffers the potential 
impacts of fishing mortality on thorny skates. An argument could be 
made for discreteness and significance of the U.S. population of thorny 
skates if it could be demonstrated that this population is delimited by 
international boundaries within which differences in control of 
exploitation, management of habitat, conservation status, or regulatory 
mechanisms exist that are significant in light of section 4(a)(1)(D) of 
the ESA. Sufficient time is not available within the 90-day initial 
review phase to conduct a review of international regulations, so for 
the purposes of this review and to err on the side of the species, we 
have examined the species range-wide and as a U.S. population of thorny 
skates (assuming that it meets the DPS policy criteria).
    Given this assumption, we have considered the available information 
on biomass. Range-wide, it indicates a decline, and in the United 
States, surveys indicate that the population is at a historically low 
level; although the species may be at a low level and may have declined 
from previous historical levels, sufficient information was not 
presented to indicate that it is now threatened or endangered due to 
that low level of abundance. Millions of thorny skate exist and their 
distribution ranges across vast areas on both sides of the North 
Atlantic. We have also examined the five ESA section 4(a)(1) factors 
and specifically examined whether sufficient scientific information was 
presented by the petitioners or otherwise readily available in our 
files that indicates that thorny skates are threatened or endangered 
due to overutilization for commercial purposes or inadequacy of 
existing regulatory mechanisms to control harvest (including discards 
and illegal landings). The purported impacts of illegal fishery 
landings and high discard mortality in U.S. waters are not supported by 
the most recent fishery data. In fact, the Skate FMP's prohibition on 
possession of thorny skates appears to be extremely effective, and 
discard mortality rates are relatively low. While it is reasonable to 
predict that climate change will result in some changes to the habitat 
of thorny skate, sufficient information is not presented or otherwise 
available to indicate that climate change, or other natural or manmade 
factors, may be causing the species to be threatened or endangered. We 
conclude that the available information does not lead a reasonable 
person to conclude that thorny skates are threatened or endangered due 
to one or more of these factors at this time. However, to meet stock 
rebuilding objectives under the Magnuson-Stevens Act, the Council 
should be encouraged to maintain its efforts to reverse the decline of 
thorny skates. Additional research on several key aspects of thorny 
skate population dynamics could further inform management, particularly 
on the potential impacts of rising ocean temperatures on their 
distribution. This is currently being investigated by the NEFSC. 
Additionally, we will retain thorny skate on our Species of Concern 
list and attempt to devote resources to addressing the data 
deficiencies. Should these research efforts yield information not 
considered in this finding, we may initiate a review of the status of 
this species in the future.

Petition Finding

    Based on the above information and the criteria specified in 50 CFR 
424.14(b)(2), we find that the petitions and information readily 
available in our files do not present substantial scientific and 
commercial information indicating that the petitioned actions 
concerning thorny skate may be warranted at this time. Because we have 
concluded that the petitioned action to list thorny skates is not 
warranted, we do not need to explore the 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.

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. 2011-32527 Filed 12-19-11; 8:45 am]
BILLING CODE 3510-22-P