Federal Register, Volume 74 Issue 2 (Monday, January 5, 2009)

[Federal Register Volume 74, Number 2 (Monday, January 5, 2009)]
[Proposed Rules]
[Pages 249-252]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-31362]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223 and 224

[Docket No. 0812291651-81652-01]
RIN 0648-XM05

Listing Endangered and Threatened Wildlife and Plants; 90-Day
Finding on a Petition to List Atlantic Wolffish as Threatened or
Endangered under the Endangered Species Act

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

ACTION: Notice of petition finding; request for information.

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SUMMARY: We, NMFS, announce a 90-day finding for a petition to list
Atlantic wolffish (Anarhichas lupus) as endangered or threatened under
the Endangered Species Act (ESA). We find that the petition presents
substantial scientific information indicating the petitioned action may
be warranted. We will conduct a status review of Atlantic wolffish to
determine if the petitioned action is warranted. To ensure that the
review is comprehensive, we solicit information pertaining to this
species from any interested party.

DATES: Information related to this petition finding must be received
by March 6, 2009.

ADDRESSES: You may submit comments, identified by the XRIN 0648-XM05,
by any of the following methods:
Electronic Submissions: Submit all electronic public
comments via the Federal eRulemaking Portal http//www.regulations.gov.
Follow the instructions for submitting comments.
Mail or hand-delivery: Assistant Regional Administrator,
NMFS, Northeast Regional Office, 55 Great Republic Drive, Gloucester,
MA 01930.
We will post all comments on http://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see the Public Comments section below for more information). The
petition and other pertinent information are also available
electronically at the NMFS website at http://www.nero.noaa.gov/prot_res/CandidateSpeciesProgram/csr.htm.

FOR FURTHER INFORMATION CONTACT: Kim Damon-Randall, NMFS, Northeast
Regional Office (978) 281-9300 x6535 or Marta Nammack, NMFS, Office of
Protected Resources (301) 713-1401.

SUPPLEMENTARY INFORMATION:

Background

On October 1, 2008, we received a petition from the Conservation
Law Foundation, Dr. Erica Fuller and Dr. Les Watling (hereafter, the
Petitioners), requesting that we list the U.S. distinct population
segment (DPS) of Atlantic wolffish (Anarhichas lupus), an Atlantic
wolffish DPS consisting of one or more subpopulations in U.S. waters,
or the entire species of Atlantic wolffish as endangered or threatened
under the ESA and designate critical habitat for the species. The
petition contains information on the species, including the taxonomy;
historic and current distribution; physical and biological
characteristics of its habitat and ecosystem relationships; population
status and trends; and factors contributing to the species' decline.
The Petitioners also included information regarding possible DPSs of
Atlantic wolffish. The petition addresses the five factors identified
in section 4(a)(1) of the ESA as they pertain to Atlantic wolffish: (1)
current or threatened habitat destruction or modification or
curtailment of habitat or range; (2) over-utilization for commercial
purposes; (3) disease or predation; (4) inadequacy of existing
regulatory mechanisms; and (5) other natural or man-made factors
affecting the species' continued existence.

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 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 the
measure proposed in the petition may be warranted (50 CFR
424.14(b)(1)). In determining whether substantial information exists
for a petition to list a species, we take into account several factors,
including information submitted with, and referenced in, the petition
and all other information readily available in our files. To the
maximum extent practicable, this finding is to be made within 90 days
of the receipt of the petition (16 U.S.C. 1533(b)(3)(A)), and the
finding is to be published promptly in the Federal Register. If we find
that a petition presents substantial information indicating that the
requested action may be warranted, section 4 (b)(3)(A) of the ESA
requires the Secretary of Commerce (Secretary) to conduct a status
review of the species. Section 4 (b)(3)(B) requires the Secretary to
make a finding as to whether or not the petitioned action is warranted
within 12 months of the receipt of the petition. The Secretary has
delegated the authority for these actions to the NOAA Assistant
Administrator for Fisheries.
Under the ESA, a listing determination can address a species,
subspecies, or a DPS of a vertebrate species (16 U.S.C. 1532 (16)). In
1996, the U.S. Fish and Wildlife Service and NMFS published a Policy on
the Recognition of Distinct Vertebrate Population Segments (DPS) Under
the Endangered Species Act (61 FR 4722; February 7, 1996) that
described two criteria for identifying DPSs: discreteness and
significance. The Petitioners present information in the petition
supporting a single large DPS in the United States and also potentially
dividing that DPS into three smaller DPSs in the United States
northeast peak of Georges Bank, Great South Channel, and Stellwagen
Bank/Jeffreys Ledge.
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)).'' A threatened species is defined 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(19)).'' As stated previously, 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: (1) present or threatened
destruction, modification, or curtailment of habitat or range; (2)
over-utilization for commercial, recreational, scientific, or
educational purposes; (3) disease or predation; (4) inadequacy of
existing regulatory mechanisms; or (5) other natural or manmade factors
affecting its continued existence. Listing determinations are 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.

Life History of the Atlantic wolffish

Atlantic wolffish are distributed in the North Atlantic Ocean from
the Northwest Atlantic Shelf region off North America, to Greenland,
Iceland and the waters off of Northern Europe. In the Northwestern
Atlantic, they are found in waters off western Greenland

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and southern Labrador, in the Strait of Belle Isle and the Gulf of St.
Lawrence, off the eastern and western coasts of Newfoundland and over
the Grand Banks south to the Scotian Shelf, in the Gulf of Maine and on
Georges Bank. The species distribution within the United States
represents the most southern reach of its range in the Northwest
Atlantic.
Atlantic wolffish are a large, slow growing, and late maturing
species (COSEWIC, 2000). Maturity varies by region due to temperature
influences, but most mature by age 6 and about 40 cm total length
(Collette and Klein-MacPhee, 2002). Males and females form bonded pairs
during the spring and summer. The spawning period for Atlantic wolffish
remains unclear but most likely varies temporally depending on
latitude. Prior to spawning, ripe female wolffish exhibit a pronounced
pot-belly (Collette and Klein-MacPhee, 2002). Females produce between
5,000 and 12,000 eggs, with female fecundity increasing with fish size.
Incubation is believed to last 4 to 9 months, depending on the water
temperature (Collette and Klein-MacPhee, 2002). Eggs are laid in large
clusters and are guarded by the parental male. The male stops feeding
during this period and becomes more aggressive in his role as protector
(Collette and Klein-MacPhee, 2002).
Atlantic wolffish appear to prefer areas with complex bottom
substrates such as rocky outcroppings or seaweed beds (Collette and
Klein-MacPhee, 2002). While they are believed to be a relatively
sedentary and solitary demersal species, Collette and MacPhee (2002)
suggest that feeding takes place away from their shelter sites.
Atlantic wolffish feed primarily on benthic fauna. While the diet of
this species shows strong regional variation, it consists mainly of
various species of mollusks, crustaceans, echinoderms and less
frequently, fishes. Their teeth are quickly worn down by the grinding
of hard-shelled prey and are replaced annually after the spawning
season (Collette and Klein-MacPhee, 2002). They fast during this
replacement until the new teeth are fully functional (Collette and
Klein-MacPhee, 2002). As predators, Atlantic wolffish may also be key
factors in controlling density and distribution of certain benthic
invertebrates, such as sea urchin (O'Dea and Haedrich, 2000).

Analysis of Petition

The Petitioners present information indicating that the U.S.
population of Atlantic wolffish is discrete and significant, and thus,
a DPS. They also present additional information indicating that the
U.S. DPS can be divided into three smaller DPSs.
The Petitioners contend that the U.S. DPS of Atlantic wolffish is
discrete based on the international boundary between the United States
and Canada and by its physical isolation from other populations of
Atlantic wolffish in the Canadian waters of the Atlantic.
They note that discrete local populations (or subpopulations) have
been postulated for Atlantic wolffish due to differences in life
history studies (O'Dea and Haedrich, 2002; CMER Research Topics, 2005).
Evidence for these subpopulation units is based on tag-recapture
studies which indicate a high level of site fidelity and a strong
preference for rocky habitat areas (Bigelow and Schroeder, 1953). The
Petitioners also examined the nearest ``neighbor'' distances for
Atlantic wolffish subpopulations in the United States and determined
that distances among localities ranged from 14 km to approximately 85
km, with a median distance of 19 km. They note that the most
substantial remaining subpopulation in the United States exists in the
Jeffreys Ledge/Stellwagen area, which is approximately 350 km from
similar areas of concentration on Browns Bank in Canadian waters.
According to the Petitioners, the Fundian Channel represents a
significant barrier between the Gulf of Maine and Georges Bank and the
Scotian Shelf subpopulations of Atlantic wolffish. They indicate that
oceanographic features, such as the Fundian Channel, isolate
subpopulations that are found in different areas, thereby leading to
geographic and genetic isolation. Without corridors for mixing between
these disparate subpopulations, migration and effective recruitment is
limited, which could lead to the extirpation of subpopulations in the
United States. Not only is the Jeffreys Ledge/Stellwagen subpopulation
geographically isolated from other subpopulations, but much of the
habitat between it and the Canadian subpopulations is comprised of clay
and silt substrata. According to the Petitioners, the literature
suggests that Atlantic wolffish have never been documented on mud
bottoms (Bigelow and Schroeder, 1953) and are rarely observed over sand
bottoms (Collette and Klein-MacPhee, 2002). The Petitioners provide
information indicating that Atlantic wolffish subpopulations in the
United States are distinguishable from other Atlantic wolffish
subpopulations due to differences in life history characteristics such
as age at maturity, possible adaptation to higher ambient water
temperatures, fidelity to specific spawning grounds, and lack of
migration. Coloration differences between Atlantic wolffish in the
western Gulf of Maine and from Georges Bank have been noted, and it is
believed that Atlantic wolffish subpopulations in the United States
have adapted to the highest recorded water temperatures for the species
throughout its range in the North Atlantic (Bigelow and Schroeder,
1953). As noted above, the Petitioners contend that, based on the U.S.
Fish and Wildlife Service and NMFS joint DPS policy (61 FR 4722;
February 7, 1996), the United States/Canadian border constitutes a
delimiting international boundary, as Canadian management practices for
Atlantic wolffish under the Species at Risk Act (SARA) are less
protective than those afforded by the ESA. According to the
Petitioners, there are differences in conservation status,
exploitation, management of habitat and harvest regulation in Canada,
and thus, Atlantic wolffish in the United States should be provided
with independent protection.
According to the Petitioners, the United States population of
Atlantic wolffish and the various subpopulations also satisfy the
second and fourth significance factors from the DPS policy. They state
that the U.S. DPS is significant because the loss of this population
would result in a significant gap in the range of the taxon and in the
loss of a subpopulation that exhibits unique characteristics indicative
of genetic differences. They contend that the range of Atlantic
wolffish in the Northwest Atlantic has contracted over the last 4
decades, and consequently, the range within the United States
represents the southernmost extent of their historic range. As such,
the loss of the U.S. DPS would represent a significant gap in the range
of Atlantic wolffish. The Petitioners also note that the U.S. DPS and
the subpopulations exhibit certain behavioral and physiological
differences (noted above) that suggest there are underlying genetic
differences.
The petition asserts that the U.S. DPS or the three potential
smaller DPSs in the United States warrant listing based on at least
three of the five factors specified in the ESA, 16 USC 1533(a)(1). The
primary threats to Atlantic wolffish identified in the petition are
overutilization directly and indirectly in commercial and recreational
fisheries and habitat destruction and modification by bottom trawling
and dredging. The Petitioners cite information that indicates that
bottom

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trawling and dredging operations are harmful to the hard bottom habitat
occupied by Atlantic wolffish for nesting, spawning, and hatching
young. The petition states that existing laws and regulations do not
protect Atlantic wolffish populations in the United States or in Canada
and that they are inadequate to halt the likely extinction of the
species in a significant portion of its range. The Petitioners also
contend that the threats to Atlantic wolffish in the United States have
been exacerbated by additional environmental factors such as warming
ocean temperatures, ecosystem shifts due to the general freshening of
continental shelf waters, and a general loss of biodiversity in the
marine environment.
According to the Petitioners, catch rates in scientific surveys in
Newfoundland waters have declined by 91 percent since 1978 and by 87
percent in all Canadian waters. The 2002 Stock Status Report for
Atlantic wolffish produced by the Canadian Department of Fisheries and
Oceans (DFO) for the Scotian Shelf, Georges Bank, and in the Bay of
Fundy indicated a similar declining trend in the research trawl survey
series which began in 1970. Not only have the numbers declined in the
surveys, but the number of locations in which the species occurs has
declined and the range where the species is abundant appears to have
been reduced. The percentage of all Canadian survey stations in which
wolffish were landed in the DFO trawl survey declined from close to 35
percent in 1978 to approximately 10 percent in 1994. In Newfoundland,
Atlantic wolffish were historically captured at 88 percent of the
survey stations until 1985; however, this declined to 33 percent by
1993.
The Petitioners estimate that in the United States, between 1983
and 2004, the rate of decline of Atlantic wolffish was approximately 95
percent. The Northeast Fishery Science Center (NEFSC) bottom trawl
survey biomass index has shown a significant decline that began in the
mid- to late 1980s and has continued to present. The NEFSC's spring
biomass index for U.S. waters reached a high of 1.44 kg/tow in 1986,
declined to a low of 0.00 in 2005 and 2006, and rose slightly to 0.009
in 2007. The fall biomass index for U.S. waters reached a high of 1.14
kg/tow in 1981 and declined to 0.00 in 2007. Bottom trawls are most
likely not the most effective method for determining abundance of
Atlantic wolffish as they do not efficiently sample the rocky bottom
habitat inhabited by wolffish. However, a pronounced decline in the
relative abundance trend over an extended time period is still evident
from the available data.
The current distribution of Atlantic wolffish in the Northwest
Atlantic is contracted when compared to the historic distribution.
Historically, the Northwest Atlantic population was distributed
throughout the entire Gulf of Maine and on Georges Bank south to New
Jersey (Collette and Klein-MacPhee, 2002). The highest recorded
abundance was from Jeffreys Ledge to the Great South Channel, and other
reported areas of abundance included the Gulf of Maine region in
Canadian waters on the northeast peak of Georges Bank and Browns Bank.
Wolffish were frequently caught in inshore Maine waters and along the
coast of Massachusetts. State trawl surveys from Maine to Massachusetts
have documented very few wolffish in state waters over the last several
decades. NEFSC bottom trawl surveys have also documented this range
contraction, indicating that there are a few isolated areas in which
Atlantic wolffish are concentrated, including the northeast peak of
Georges Bank and the Jeffreys Ledge and Stellwagen Bank regions.

Petition Finding

Based on the above information and the criteria specified in 50 CFR
424.14(b)(2), we find that the petition presents substantial scientific
and commercial information indicating that the petitioned actions
concerning Atlantic wolffish may be warranted. The Petitioners also
provided information to support listing the entire species as
threatened or endangered. As such, the biological review team (BRT)
that will be formed to assess the status of Atlantic wolffish will
begin their review by considering the information available regarding
population structure of Atlantic wolffish throughout their range in the
Northwest Atlantic. The review will include consideration of whether
there is a single U.S. DPS or smaller DPSs within the species' range in
the United States as indicated by the Petitioners. The status of the
species, as defined by the BRT and after consulting with NMFS, will
then be assessed to provide information to us to make a determination
as to whether the species is in danger of extinction throughout all or
a significant portion of its range or likely to become so in the
foreseeable future.
Under section 4(b)(3)(A) of the ESA, this finding requires NMFS to
commence a status review of the species. We are now initiating this
review, and thus, the Atlantic wolffish is now considered to be a
candidate species (69 FR 19976; April 15, 2004). Within 12 months of
the receipt of the petition (October 1, 2009), a finding will be made
as to whether listing Atlantic wolffish or DPSs of Atlantic wolffish in
the United States as endangered or threatened is warranted, as required
by section 4(b)(3)(B) of the ESA. If warranted, we will publish a
proposed rule and solicit public comments before developing and
publishing a final rule.

Information Solicited

To ensure the status review is based on the best available
scientific and commercial data, we are soliciting information on
whether Atlantic wolffish are endangered or threatened. Specifically,
we are soliciting information in the following areas: (1) historical
and current distribution and abundance of this species throughout its
range; (2) historic and current condition; (3) population status and
trends; (4) information on any current or planned activities that may
adversely impact the species, especially as related to the five factors
specified in section 4(a)(1) of the ESA and listed above; (5) ongoing
efforts to protect and restore the species and its habitat; (6)
information indicating the existence of DPSs of Atlantic wolffish based
upon genetic data or other information; and (7) information on whether
any particular portions of the range of the Atlantic wolffish
constitute significant portions of the range of the species or of any
potential DPSs that may exist. We request that all information be
accompanied by: (1) supporting documentation such as maps,
bibliographic references, or reprints of pertinent publications; and
(2) the submitter's name, address, and any association, institution, or
business that the person represents.

Peer Review

On July 1, 1994, NMFS, jointly with the U.S. Fish and Wildlife
Service, published a series of policies regarding listings under the
ESA, including a policy for peer review of scientific data (59 FR
34270). The intent of the peer review policy is to ensure listings are
based on the best scientific and commercial data available. We are
soliciting the names of recognized experts in the field that could take
part in the peer review process for this status review. Independent
peer reviewers will be selected from the academic and scientific
community, tribal and other Native American groups, Federal and state
agencies, the private sector, and public interest groups.

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

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Dated: December 29, 2008.
John Oliver,
Deputy Assistant Administrator for Management and Administration,
National Marine Fisheries Service.
[FR Doc. E8-31362 Filed 1-2-09; 8:45 am]
BILLING CODE 3510-22-S