Endangered and Threatened Species; Proposed Endangered Status for a Distinct Population Segment of Smalltooth Sawfish (Pristis pectinata) in the United States

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

[Federal Register: April 16, 2001 (Volume 66, Number 73)]
[Proposed Rules]
[Page 19414-19420]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16ap01-14]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 224

[Docket No. 000303059-1019-02; I.D. No. 021700B]
RIN 0648-XA49

Endangered and Threatened Species; Proposed Endangered Status for
a Distinct Population Segment of Smalltooth Sawfish (Pristis pectinata)
in the United States

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

ACTION: Proposed rule, notice of availability; request for comments.

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SUMMARY: NMFS has completed a comprehensive status review of smalltooth
sawfish and has determined that a petitioned action to list North
American populations of smalltooth sawfish as endangered is warranted.
A distinct population segment (DPS) of smalltooth sawfish in the United
States is in danger of extinction. NMFS has reviewed the status of the
species and efforts being made to protect the species and is proposing
to place the U.S. DPS of smalltooth sawfish on the list of endangered
species under the Endangered Species Act of 1973, as amended (ESA).
NMFS has determined that this DPS is in danger of extinction throughout
all or a significant portion of its range from a combination of the
following four listing factors: The present or threatened destruction,
modification, or curtailment of habitat or range; overutilization for
commercial, recreational, scientific, or educational purposes;
inadequacy of existing regulatory mechanisms; and other natural or
manmade factors affecting its continued existence. If this proposed
listing is finalized, the protective measures of the ESA will be
extended to the U.S. DPS of smalltooth sawfish, a recovery plan will be
prepared and implemented, and critical habitat may be designated.

DATES: Comments on this proposal and on the December 2000 Smalltooth
Sawfish Status Review must be received

[[Page 19415]]

by July 16, 2001. A public hearing will be held promptly if any person
so requests within 45 days of the date of this publication. Notice of
the location and time of any such hearing will be published in the
Federal Register not less than 15 days before the hearing is held.

ADDRESSES: Send all comments and materials concerning this proposed
rule and the December 2000 Smalltooth Sawfish Status Review (Status
Review) to the Chief, Protected Resources Division, Southeast Regional
Office, NMFS, 9721 Executive Center Drive North, Saint Petersburg, FL
33702. The Status Review may be obtained by contacting the above
individual. Please note that electronic mail or internet site comments
will not be accepted.

FOR FURTHER INFORMATION CONTACT: Jennifer Lee, NMFS, at the address
above (727-570-5312), or Marta Nammack, NMFS, 301-713-1401, ext. 116.

SUPPLEMENTARY INFORMATION:

Background

On November 30, 1999, NMFS received a petition from the Center for
Marine Conservation requesting NMFS to list North American populations
of smalltooth sawfish and largetooth sawfish as endangered under the
ESA. The petitioner's request was based on four criteria: (1) the
present or threatened destruction, modification, or curtailment of its
habitat or range; (2) overutilization for commercial, recreational,
scientific, or educational purposes; (3) the inadequacy of existing
regulatory mechanisms; and (4) other natural or manmade factors
affecting its continued existence. On March 10, 2000, NMFS published
its determination that the petition presented substantial information
indicating that listing may be warranted for smalltooth sawfish, but
not for largetooth sawfish. Concurrently, NMFS announced the initiation
of a smalltooth sawfish formal status review (65 FR 12959, March 10,
2000).
The ESA defines an ``endangered species'' as ``any species which is
in danger of extinction throughout all or a significant portion of its
range''. A ``threatened species'' is defined as ``any species which is
likely to become an endangered species within the foreseeable future
throughout all or a significant portion of its range''. Section 4(a)(1)
of the ESA states that a species is threatened or endangered if any one
or more of the following factors causes it to be, or likely to become,
in danger of extinction throughout all or a significant portion of its
range: (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) the inadequacy of existing regulatory
mechanisms; and (E) other natural or manmade factors affecting its
continued existence. Section 4(b)(1)(A) of the ESA requires that NMFS
make listing determinations based solely on the basis of 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 such
species, whether by predator control, protection of habitat and food
supply, or other conservation practices, within any area under its
jurisdiction, or on the high seas.
In order to conduct a comprehensive review of smalltooth sawfish, a
status review team was created to investigate the status of the species
with regard to the listing criteria provided by the ESA. In addition to
its own resources and data, the status review team gathered all known
records and data of smalltooth sawfish by contacting fishery managers,
museums and other research collectors. The status review contains the
best scientific and commercial information available on smalltooth
sawfish. The document addresses the status of the species, the five
listing determination criteria, and the effect of efforts underway to
protect the species.
The December 2000 Smalltooth Sawfish Status Review is now
available. The findings of the Status Review have been accepted by NMFS
and are summarized here. The Status Review contains a more complete
discussion and complete literature citations for the information
summarized in this proposed rule.

Consideration as a ``species'' under the Endangered Species Act

The ESA defines species as ``any subspecies of fish or wildlife or
plants, and any distinct population segment of any species of
vertebrate fish or wildlife that interbreeds when mature''. 16 U.S.C.
1532(15). This definition allows for the recognition of distinct
population segments at levels below taxonomically recognized species or
subspecies. On February 7, 1996, the U.S. Fish and Wildlife Service
(FWS) and NMFS published a joint policy to clarify the phrase
``distinct population segment (DPS)'' for the purposes of listing,
delisting and reclassifying species under the ESA (61 FR 4722). This
policy identifies two criteria that must be met for a population
segment to be considered a DPS under the ESA: (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.

Discreteness of the U.S. Population of Smalltooth Sawfish

A population segment of a vertebrate species 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 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 status review team was unable to find any indication that the
current U.S. population of smalltooth sawfish interact with smalltooth
sawfish elsewhere, suggesting that the U.S. population may be
effectively isolated from other populations. However, there are few
scientific data on the biology of smalltooth sawfish; and it is not
possible to conclusively subdivide this species into discrete
populations on the basis of genetics, morphology, behavior, or other
biological characteristics. However, the DPS policy allows for the
delineation of a DPS based on international governmental boundaries
within which differences in control of exploitation, management of
habitat, conservation status, or regulatory mechanisms exist. The
smalltooth sawfish status review team was unable to identify any
mechanisms regulating the exploitation of this species anywhere outside
of the U.S. In contrast, several southeastern U.S. states have
regulations in place prohibiting fishing for this species. Based on
these differences in control of exploitation and regulatory mechanisms,
the U.S. population of smalltooth sawfish meets the requirements of
discreteness on an international boundary basis.

Significance of the U.S. Population of Smalltooth Sawfish

The DPS policy identifies several factors that may be considered in
making a determination of a population's significance to the taxon to
which it belongs. Among these considerations is evidence that loss of
the discrete population segment would result in a significant gap in
the range of a taxon. The smalltooth sawfish has already been wholly or
nearly extirpated

[[Page 19416]]

from large areas of its former range in the North Atlantic
(Mediterranean, U.S. Atlantic and Gulf of Mexico) and the Southwest
Atlantic by fishing and habitat modification; and its status elsewhere
is uncertain but likely to be similarly reduced. In fact, the status
review team was unable to find any recent verifiable records of
smalltooth sawfish populations outside of the U.S. Reports of this
species from outside the Atlantic may be misidentifications of other
pristids. Therefore smalltooth sawfish populations in U.S. waters,
while extremely depleted, may be the largest population of smalltooth
sawfish in the Western Atlantic. As sawfish in general are suffering
worldwide declines, the U.S. population of smalltooth sawfish comprises
an important component of the sawfishes' remaining global biological
diversity. The U.S. population of smalltooth sawfish is the
northernmost population in the Western Hemisphere (see habits and
habitat section). Because other populations of smalltooth sawfish are
apparently relatively scarce compared to the U.S. population, and
because the U.S. population is the northernmost population in the
western Atlantic, the loss of the U.S. population would result in a
significant gap in the range of this species. For these reasons, the
U.S. population of smalltooth sawfish is significant as defined under
the DPS policy.
Based on the above analysis of the discreteness and significance of
smalltooth sawfish,, smalltooth sawfish that occur in waters of the
eastern United States are both discrete and significant and constitute
a DPS. As such, consideration of the conservation status of the U.S.
DPS of smalltooth sawfish in relationship to the ESA's listing
standards is appropriate.

Distribution and Abundance

Smalltooth sawfish are tropical marine and estuarine fish that have
the northwestern terminus of their Atlantic range in the waters of the
eastern United States. In the United States, smalltooth sawfish are
generally a shallow water fish of inshore bars, mangrove edges, and
seagrass beds, but are occasionally found in deeper coastal waters.
In order to assess both the historic and the current distribution
and abundance of the smalltooth sawfish, the status review team
collected and compiled literature accounts, museum collection
specimens, and other records of the species. This information indicates
that prior to around 1960, smalltooth sawfish occurred commonly in
shallow waters of the Gulf of Mexico and eastern seaboard up to North
Carolina, and more rarely as far north as New York. Subsequently their
distribution has contracted to peninsular Florida and, within that
area, can only be found with any regularity off the extreme southern
portion of the state. The current distribution is centered in the
Everglades National Park (including Florida Bay).
Although time-series abundance data are lacking, publication and
museum records, negative scientific survey results, anecdotal fisher
observations, and limited landings per unit effort (from Louisiana)
indicate that smalltooth sawfish have declined dramatically in U.S.
waters over the last century. The decline is likely greater than
indicated by numbers or frequencies of catches because during the past
century, both fishing and scientific sampling effort have increased by
orders of magnitude. The fact that documented smalltooth catch records
have declined during this period despite these tremendous increases in
fishing effort underscores the population reduction in smalltooth
sawfish. NMFS concludes that the abundance of the U.S. DPS of
smalltooth sawfish is at an extremely low level relative to historic
levels.

Summary of Factors Affecting the Species

Section 4 of the ESA (16 U.S.C. 1533) and regulations promulgated
to implement the listing provisions of the ESA (50 CFR part 424) set
forth the procedures for adding species to the Federal list. Section 4
requires that listing determinations be based solely on the best
scientific and commercial data available, without consideration of
possible economic or other impacts of such determinations. A species
may be determined to be endangered or threatened due to one or more of
the five factors described in section 4(a)(1) of the ESA. These factors
and their application to the U.S. DPS of smalltooth sawfish are
described below.

(a) The Present or Threatened Destruction, Modification, or Curtailment
of Habitat or Range

Loss and/or degradation of habitat has contributed to the decline
of many marine species, and is unknown, but fully expected, to have
impacted the distribution and abundance of smalltooth sawfish. The
continued urbanization of the southeastern coastal states has resulted
in substantial loss of coastal habitat through such activities as
agricultural and urban development, commercial activities, dredge and
fill operations, boating, erosion, and diversions of freshwater run-
off. Animal wastes and fertilizers from agricultural runoff contribute
large amounts of non-point source nutrient loading and introduce a wide
range of toxic chemicals into habitats important to smalltooth sawfish.
Urban development in the southeast coastal zone is more than four times
the national average, destroying or degrading significant amounts of
coastal and estuarine habitat. Commercial activities in the southeast
eliminate or degrade substantial amounts of marine and estuarine fish
habitat although the exact amount is unknown. An analysis of 18 major
southeastern estuaries recorded over 703 miles (1,131 km) of navigation
channels and 9,844 miles (15,842 km) of shoreline modifications.
Profound impacts to hydrological regimes have been produced in South
Florida through the construction of a 1,400-mile (2,260-km) network of
canals, levees, locks, and other water control structures which
modulate freshwater flow from Lake Okeechobee, the Everglades, and
other coastal areas.
Potential detrimental impacts from the activities listed above on
smalltooth sawfish habitat within the U.S. DPS include: (1) loss of
wetlands, (2) eutrophication, (3) point and non point sources of
pollution, (4) increased sedimentation and turbidity, and (5)
hydrologic modifications. Smalltooth sawfish may be especially
vulnerable to coastal habitat degradation due to their affinity to
shallow, estuarine systems. The cumulative impacts from habitat
degradation discussed above may reduce habitat quality and limit
habitat quantity available to the U.S. DPS of smalltooth sawfish. Given
current low levels of abundance, and its current retracted range, it is
critical that efforts be undertaken to better understand, avoid,
minimize and mitigate these factors.

(b) Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes

Smalltooth sawfish were historically often caught as bycatch in
various fishing gears, including gillnet, otter trawl, trammel net,
seine, and, to a lesser degree, hand line. There are frequent accounts
in early literature of smalltooth sawfish being entangled in fishing
nets from areas where smalltooth sawfish were once common, but are now
rare or extirpated. Their long, toothed rostrum makes it difficult to
avoid entanglement in virtually all kinds of large mesh gillnet gear.
The saw penetrates easily though nets and causes the animal to become
entangled when it attempts to escape. Shrimp trawling is another source
of incidental

[[Page 19417]]

mortality on smalltooth sawfish. Entangled specimens frequently had to
be cut free, causing extensive damage to nets and presenting a
substantial hazard if brought on board. For these reasons, most
smalltooth sawfish caught by fishermen were either killed outright or
released only after removal of their saws.
Quantitative data are limited, but indicate that smalltooth sawfish
historically were commonly taken by commercial fishermen and that this
species has experienced severe declines in its abundance over the past
several decades. Large-scale directed fisheries for smalltooth sawfish
have not existed; however, smalltooth sawfish bycatch has been
commercially landed in various regions, primarily in Louisiana. Total
Gulf of Mexico landings dropped continually from 1950 to 1978 from
around 5 metric tons to less than 0.2 metric tons during this time
period. NMFS does not have any records of landings since 1978.
A data set from ``Fisheries Statistics of the United States''
(1945-1978) of smalltooth sawfish landings in Louisiana by shrimp
trawlers, containing both landings data and crude information on effort
(number of vessels, vessel tonnage, number of gear units) underscores
that landings have dramatically declined, even as fishing effort
increased. Annual smalltooth landings in Louisiana declined from a high
of 34,900 lb (15,830 kg) in 1949 to less than 1,500 lbs (680 kg) in
most years after 1967. During this period of time, the number of
fishing vessels, the size of the fishing vessels and the amount of gear
that they deployed increased substantially. Landings per unit effort
(LPUE) data were calculated using three different units of effort
(number of vessels, tonnage of vessels and number of gear units). All
three data series showed dramatic declines in LPUE, from high levels in
the 1950s to very low levels in the 1970s. The magnitude of these
declines is such that the LPUE values in the 1970s are less than 1
percent of those in the 1950s, demonstrating a severe decline in the
population. The lack of landings since 1978 shows that smalltooth
sawfish have been commercially extinct for over 20 years.
Anecdotal information collected by NMFS port agents indicates that
smalltooth sawfish are now taken very rarely in the shrimp trawl
fishery. The most recent records from Texas are from the 1980s. Through
1999, smalltooth sawfish were still occasionally documented in shrimp
trawls in Florida (4 from 1990 to 1999).
Historically, smalltooth sawfish have also occasionally occurred as
bycatch in recreational fisheries. Occasional takes with harpoon or
hook-and-line by recreational fishers in Florida were recorded during
the first half of the 20th century. In Texas, many sawfish were
reportedly taken incidentally by sport fishermen in the bays and surf
prior to the 1960s. Most of these fish were released; however, prior to
their live release, the saws of many individuals were removed. This
practice may have contributed to the decline of smalltooth in Texas.
Today, recreational catches of sawfish are very rare, and poorly
documented for the most part, except within the Everglades National
Park. Long-term abundance data are not available, but there are recent
(1989-1999) recreational catch per unit effort (CPUE) data for the
Everglades. These CPUE data indicate that a sustaining population still
exists there, with consistent annual catches by private recreational
anglers and guide boats.
Direct take of smalltooth sawfish has been of little importance or
remains obscure. Although there is a market for smalltooth sawfish
saws, the species is not commonly taken and any captures are apparently
incidental.
Smalltooth sawfish have also been taken by collectors and sold live
to aquaria. The recent high value aquaria are willing to pay for this
species ($1,000 per ft; $3,200 per m) may be providing increased
incentive for their collection. The smalltooth sawfish has rarely been
used for scientific purposes.

There is no information regarding competition, predation, and
disease affecting smalltooth sawfish. The decline of the species,
however, appears to have been one of slow attrition over the course of
the twentieth century (primarily from bycatch in fisheries and
secondarily by coastal habitat destruction) rather than some acute
epizootic event. The few living specimens examined appear to be in good
health.

(d) Inadequacy of Existing Regulatory Mechanisms

Numerous Federal, state, and inter-jurisdictional laws, regulations
and policies govern activities in U.S. waters and have the potential
ability to affect the abundance and survival of smalltooth sawfish and
their habitat. While these laws, regulations, and policies lead to
overall environmental enhancements indirectly aiding smalltooth
sawfish, very few have been applied specifically for the protection of
smalltooth sawfish. For example, NMFS and FWS consult with other
agencies on projects that may impact fish and wildlife and provide
recommendations to avoid any adverse impacts, but there has never been
a recommendation directed at the protection of sawfish. Any general
recommendations that are implemented and reduce habitat loss in shallow
coastal areas may provide some benefit to smalltooth sawfish by curbing
increased habitat degradation.
There are no Federal regulations for the protection of sawfish.
With the exception of Florida, Louisiana, and possibly Alabama in the
near future, smalltooth sawfish can also still be legally harvested in
state waters.
As noted in the preceding section, a century of net fisheries
combined with the low reproductive potential of the sawfish (typical of
most elasmobranchs) resulted in a very severe decline in sawfish
populations. Smalltooth sawfish bycatch in gillnets has likely been
reduced due to recent regulations prohibiting or limiting the use of
gillnets in some state waters and the depressed abundance of this
species, but bycatch in other gears such as trawls may still present a
threat to this species. Recent reports of smalltooth sawfish caught
with their saws already removed indicate that smalltooth sawfish are
still being harmed by commercial or recreational fishing activities.
Based on this information, existing Federal and state laws,
regulations, and policies appear inadequate to protect smalltooth
sawfish.

(e) Other Natural or Manmade Factors Affecting its Continued Existence

Current and future abundance of smalltooth sawfish is limited by
its life history characteristics. While little is known directly about
smalltooth sawfish life history, inferences can be drawn from closely
related species for which more information is available, such as the
largetooth sawfish and other elasmobranchs. These species have slow
growth, late maturity, a long life span, and low fecundity; and it is
highly likely that smalltooth sawfish share these characteristics.
These combined characteristics result in a very low intrinsic rate of
population increase and are associated with the life history strategy
known as ``k-selection''. K-selected animals are usually successful at
maintaining relatively small, persistent population sizes in relatively
constant environments. Conversely, they are not able to respond
effectively (rapidly) to additional sources of mortality resulting from
changes in their environment. Such changes include overexploitation and
habitat

[[Page 19418]]

degradation. Smalltooth sawfish have been (and are currently) subjected
to both overexploitation and habitat degradation.
The intrinsic rate of population growth can be a useful parameter
to estimate the capacity of species to withstand exploitation. Animals
with low intrinsic rates of increase are particularly vulnerable to
excessive mortalities and rapid stock collapse, after which recovery
may take decades. The estimated intrinsic rate of natural increase for
smalltooth sawfish ranges from 0.08/year to 0.13/year, and population
doubling times range from 5.4 years to 8.5 years. These values are
considered to be low and to place the species at risk.

Basis for Determination

The U.S. DPS of smalltooth sawfish is at a critically low level of
abundance. The U.S. DPS of smalltooth sawfish continues to face threats
from: (1) loss of wetlands, (2) eutrophication, (3) point and non point
sources of pollution, (4) increased sedimentation and turbidity, and
(5) hydrologic modifications. Commercial bycatch has played the primary
role in the decline of this DPS. Quantitative data are limited, but
indicate that smalltooth sawfish have been taken by commercial
fishermen and that this species has experienced severe declines in
their abundance. While Federal, state, and interjurisdictional laws,
regulations, and policies lead to overall environmental enhancements
indirectly aiding smalltooth sawfish, very few have been applied
specifically for the protection of smalltooth sawfish. Based on the
species' low intrinsic rate of increase resulting from their slow
growth, late maturation, and low fecundity, population recovery
potential for the species is limited and the species is at risk of
extinction. Therefore, under current circumstances, the U.S. DPS of
smalltooth sawfish is in danger of extinction.
Protective measures for the U.S. DPS of smalltooth sawfish were
examined in combination with the species' status information to
determine if listing as threatened or endangered was warranted and if
there was a need for an emergency listing. Current protective measures
and conservation efforts underway to protect the U.S. DPS of smalltooth
sawfish are confined to: actions directed at increasing general
awareness of this species and the risks it faces; possession
prohibitions in the state waters of Florida and Louisiana; and research
being pursued by the Mote Marine Laboratory's Center for Shark
Research. There are no Federal or state conservation plans for the
smalltooth sawfish.

Proposed Determination

The ESA defines an endangered species as any species in danger of
extinction throughout all or a significant portion of its range (16
U.S.C. 1532(6)), 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(20)). Section
4(b)(1)(A) of the ESA requires that determinations regarding whether
any species is threatened or endangered be based solely on the best
scientific and commercial information available after conducting a
review of the status of the species and after taking into account those
efforts, if any, being made by a state or foreign nation to protect
such species (16 U.S.C. 1533(b)(1)(A)).
Based on results of its status review, NMFS has concluded that the
U.S. population segment of smalltooth sawfish constitutes a DPS, or
``species,'' under the ESA. After evaluating the status of this DPS,
NMFS has determined that it is in danger of extinction throughout all
or a significant portion of its range. NMFS proposes to list the U.S.
DPS of smalltooth sawfish as endangered under the ESA at this time. At
present, the DPS consists of a single population, with its current
distribution centered in the Everglades Park (including Florida Bay).

Conservation Measures

Conservation measures provided for species listed as endangered or
threatened under the ESA include recovery actions (16 U.S.C. 1533(f)),
Federal agency consultation requirements (16 U.S.C. 1536), and
prohibitions on taking (16 U.S.C. 1538). Recognition of the species'
plight through listing promotes conservation actions by Federal and
state agencies and private groups and individuals.
Should the proposed listing be made final, protective regulations
under the ESA would take effect, a recovery program would be
implemented, and critical habitat may be designated. NMFS recognizes
that to be successful, protective regulations and recovery programs for
smalltooth sawfish will need to be developed in the context of
conserving aquatic ecosystem health. Federal, state and the private
sectors would need to cooperate to conserve the listed U.S. DPS of
smalltooth sawfish and the ecosystems upon which it depends.
Sections 10(a)(1)(A) and 10(a)(1)(B) of the ESA (16 U.S.C.
1539(a)(1)(A) and (a)(1)(B)) provide NMFS with authority to grant
exceptions to the ESA's ``taking'' prohibitions. Section 10(a)(1)(A)
scientific research and enhancement permits may be issued to entities
(Federal and non-Federal) conducting research that involves a directed
take of listed species. A directed take refers to the intentional take
of listed species. NMFS has issued section 10(a)(1)(A) research/
enhancement permits for other listed species for a number of
activities.
Under section 10(a)(1)(B) of the ESA, incidental take permits may
be issued to non-Federal entities performing activities that may
incidentally take listed species. The types of activities potentially
requiring a section 10(a)(1)(B) incidental take permit include the
operation and release of artificially propagated fish by state or
privately operated and funded hatcheries, operation of a privately
owned power plant in the vicinity of the listed species, and the
implementation of state fishing regulations.

Service Policies on Endangered and Threatened Fish and Wildlife

On July 1, 1994, the NMFS and FWS published a series of policies
regarding listings under the ESA, including a policy for peer review of
scientific data (59 FR 34270) and a policy to identify, to the maximum
extent possible, those activities that would or would not constitute a
violation of section 9 of the ESA (59 FR 34272).

(a) Role of peer review

The intent of the peer review policy is to ensure that listings are
based on the best scientific and commercial data available. Prior to a
final listing, NMFS will solicit the expert opinions of three qualified
specialists, concurrent with the public comment period. Independent
peer reviewers will be selected from the academic and scientific
community, Federal and State agencies, and the private sector.

(b) Identification of those activities that would constitute a
violation of Section 9 of the ESA

The intent of this policy is to increase public awareness of the
effect of this listing on proposed and ongoing activities within the
species' range. NMFS will identify, to the extent known at the time of
the final rule, specific activities that will not be considered likely
to result in violation of section 9, as well as activities that will be
considered likely to result in violation. Activities that NMFS believes
could result in violation of section 9 prohibitions against ``take'' of
the U.S.

[[Page 19419]]

DPS of smalltooth sawfish include, but are not limited to, the
following:
(1) Bycatch associated with commercial and recreational fisheries;
(2) Poaching of individuals caught as bycatch in the state of
Florida for trade;
(3) Destruction of coastal habitat through such activities as
agricultural and urban development, commercial activities, dredge and
fill operations, boating, erosion, and diversions of freshwater run-
off; and
(4) Unauthorized collecting or handling of the species (permits to
conduct these activities are available for purposes of scientific
research or to enhance the propagation or survival of the DPS).
NMFS believes that, based on the best available information, the
following actions will not result in a violation of section 9:
(1) Possession of smalltooth sawfish acquired lawfully by permit
issued by NMFS pursuant to section 10 of the ESA, or by the terms of an
incidental take statement in a biological opinion pursuant to section 7
of the ESA; or
(2) Federally approved projects that involve activities such as
agriculture, managed fisheries, road construction, discharge of fill
material, stream channelization or diversion for which consultation
under section 7 of the ESA has been completed, and when such activity
is conducted in accordance with any terms and conditions given by NMFS
in an incidental take statement in a biological opinion pursuant to
section 7 of the ESA.

Critical Habitat

Critical habitat is defined in section 3 of the ESA (16 U.S.C.
1532(3)) as: (1) the specific areas within the geographical area
occupied by a species, at the time it is listed in accordance with the
ESA, in which are found those physical or biological features (a)
essential to the conservation of the species and (b) that may require
special management considerations or protection; and (2) specific areas
outside the geographical area occupied by a species at that time it is
listed upon a determination that such areas are essential for the
conservation of the species. `Conservation' means the use of all
methods and procedures needed to bring the species to the point at
which listing under the ESA is no longer necessary.
Section 4(a)(3)(a) of the ESA (16 U.S.C. 1533(a)(3)(A)) requires
that, to the extent prudent and determinable, critical habitat be
designated concurrently with the listing of a species. Designations of
critical habitat must be based on the best scientific data available
and must take into consideration the economic and other relevant
impacts of specifying any particular area as critical habitat. NMFS is
evaluating the prudency of determining critical habitat. If NMFS
determines that critical habitat is determinable and that it is prudent
to designate critical habitat, it will publish a proposed designation
of critical habitat for the U.S. DPS of smalltooth in a separate rule.

Public Comments Solicited

To ensure that the final action resulting from this proposal will
be as accurate and effective as possible, NMFS is soliciting comments
and information from the public, other concerned governmental agencies,
the scientific community, industry, and any other interested parties.
Comments are encouraged on this proposal as well as on the Status
Review. Specifically, NMFS is soliciting information regarding: (1)
Biological, commercial trade, or other relevant data concerning any
threat (or lack thereof) to this DPS; (2) additional information
concerning the range, distribution, and population size of this DPS;
(3) current or planned activities in the subject area and their
possible impacts on this DPS; and (4) additional efforts being made to
protect smalltooth sawfish in the U.S.
Final promulgation of the regulation(s) on this species will take
into consideration the comments and any additional information received
by NMFS, and such communications may lead to a final regulation that
differs from this proposal.

Classification

The Conference Report on the 1982 amendments to the ESA notes that
economic considerations have no relevance to determinations regarding
the status of species, and that the Regulatory Flexibility Act is not
applicable to the listing process. Similarly, listing actions are not
subject to the requirements of Executive Order 12612 and are exempt
from review under Executive Order 12866.

National Environmental Policy Act

NMFS has concluded that ESA listing actions are not subject to the
environmental assessment requirements of the NEPA. See NOAA
Administrative Order 216-6.

Federalism

Smalltooth sawfish records and data were collected by the status
review team from appropriate state fishery managers and incorporated
into the Status Review. In keeping with the intent of the
Administration and Congress to provide continuing and meaningful
dialogue on issues of mutual state/Federal interest, this proposed rule
will be given to the relevant state agencies in each state in which the
species is believed to occur, who will be invited to comment.

List of Subjects in 50 CFR Part 224

Administrative practice and procedure, Endangered and threatened
species, Exports, Imports, Reporting and record keeping requirements,
Transportation.

Dated: April 9, 2001.
William T. Hogarth,
Acting Assistant Administrator for Fisheries, National Marine Fisheries
Service.

For reasons set out in the preamble, 50 CFR part 224 is proposed to
be amended as follows:

PART 224--MARINE AND ANADROMOUS SPECIES

1. The authority for part 224 continues to read as follows:

Authority: 16 U.S.C. 1531-1543 and 16 U.S.C. 1361 et seq.

2. In Sec. 224.101, paragraph (a) is amended by adding the
following entry, ``Smalltooth sawfish (Pristis pectinata)'' before
``Shortnose sturgeon (Acipenser brevirostrum)'', to read as follows:

Sec. 224.101 Enumeration of endangered marine and anadromous species.

(a) Marine and anadromous fish.
* * * * *

[[Page 19420]]

------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Species
------------------------------------------------------------------------------------ Where Listed When Listed Critical Habitat
Common Name Scientific Name
-------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Smalltooth sawfish Pristis pectinata U.S.A, Atlantic: NC 4/16/01 NA
through FL; Gulf of
Mexico: TX through FL

* * * * * * *
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

3. In Sec. 224.101, paragraph (a), revise the entry under ``Common
Name'' from ``Salmon, Atlantic'' to read ``Atlantic salmon'', and
insert ``65 FR 69459, Nov. 17, 2000'' in the ``When Listed'' column for
this entry.
[FR Doc. 01-9387 Filed 4-13-01; 8:45 am]
BILLING CODE 3510-22-S

Notices For
2009
2008
2007
2006
2005
2004
2003
2002
2001
2000
1999
1998
1997
1996
1995
1994

Endangered and Threatened Species; Proposed Endangered Status for a Distinct Population Segment of Smalltooth Sawfish (Pristis pectinata) in the United States

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