[Federal Register: April 1, 2003 (Volume 68, Number 62)]
[Rules and Regulations]               
[Page 15674-15680]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01ap03-10]                         

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 224

[Docket No. 000303059-3034-03; I.D. No. 021700B]
RIN No. 0648-XA49

 
Endangered and Threatened Species; Final 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: Final rule; technical amendment

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SUMMARY: NMFS published a proposed rule to list the U.S. population of 
smalltooth sawfish as endangered on April 16, 2001. After considering 
public comments on the proposed rule, NMFS is issuing a final rule to 
list the distinct population segment (DPS) of smalltooth sawfish in the 
United States as an endangered species. NMFS has determined that the 
U.S. DPS is in danger of extinction throughout its range.
    NMFS is also making a technical amendment to the list of endangered 
marine and anadromous species to reinsert the listing of Atlantic 
salmon.

DATES: Effective May 1, 2003.

ADDRESSES: The complete administrative record for this regulation is 
available at NMFS, Southeast Regional Office, Protected Resources 
Division, 9721 Executive Center Drive North, St. Petersburg, FL 33702. 
The status review and proposed rule are also available electronically 
at the NMFS Web site at http://www.nmfs.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Shelley Norton, NMFS, at the address 
above,727-570-5312, or David O'Brien, NMFS, 301-713-1401.

SUPPLEMENTARY INFORMATION:

Background

    NMFS designated the smalltooth sawfish as a candidate species under 
the Endangered Species Act (ESA) on June 23, 1999 (64 FR 33467). On 
November 30, 1999, NMFS received a petition from the Center for Marine 
Conservation (now The Ocean Conservancy) requesting that NMFS list the 
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).
    In order to conduct a comprehensive review of smalltooth sawfish, 
NMFS created a status review team 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 at the time of the report. The document addresses 
the status of the species, the five listing determination criteria, and 
the effect of efforts underway to protect the species.
    The Smalltooth Sawfish Status Review was completed in December 2000 
and has undergone peer review. The findings of the Status Review have 
been accepted by NMFS and some of the findings are summarized here. The 
Status Review contains a more complete discussion and complete 
literature citations for the information summarized in this final rule. 
The Status Review is available at on the NMFS Web site (see ADDRESSES).
    NMFS published the proposed rule to list the smalltooth sawfish on 
April 16, 2001 (66 FR 19414). Comments received on the proposed rule 
are discussed below.
    In addition to this final rule to list the U.S. population of 
smalltooth sawfish as endangered, NMFS is also making a technical 
amendment to the list of endangered species (50 CFR 224.101) to 
reinsert the listing for Atlantic salmon, which was inadvertently 
deleted from the list.

Summary of Comments Received on the Proposed Rule

    During the 60-day public comment period, NMFS received a total of 
12 written comments: four from private citizens, seven from non-
governmental organizations, and one from a local non-profit research 
laboratory. All commenters supported the proposed rule. Three of the 
commenters also requested that critical habitat be designated for the 
smalltooth sawfish. Several commenters requested that NMFS develop a 
recovery plan or program for the species. One commenter also requested 
the listing of the largetooth sawfish. A brief summary of the comments 
received on the proposed rule is presented below, along with NMFS' 
response to each comment.
    Comment 1: Three commenters stated that critical habitat 
designation is necessary for the smalltooth sawfish and urged NMFS to 
designate critical habitat.
    Response: Section 4(a)(3)(A) of the ESA requires that critical 
habitat be designated concurrently with a determination that a species 
is endangered or threatened, to the maximum extent prudent and 
determinable. When such a designation is not determinable at the time 
of final listing of a species, section 4(b)(6)(C)(ii) of the ESA, 16 
U.S.C. 1533(b)(6)(C)(ii), provides for additional time to promulgate a 
critical habitat designation. NMFS has determined that designation of 
critical habitat for the sawfish is not determinable at this time.
    NMFS has and continues to fund research that is necessary to 
identify the biological and physical habitat features that are 
essential to the conservation of the species. While more information is 
required before critical habitat can be designated, the available data 
suggest that shallow water, 1 meter or less, may be important nursery 
areas for the smalltooth sawfish; that river and creek mouths are 
important habitat elements; and that channels through shallow habitats 
may be important mating aggregation areas. During the next year NMFS 
will be gathering and reviewing the current and ongoing studies on the 
habitat use and requirements of

[[Page 15675]]

smalltooth sawfish. NMFS believes that this knowledge is extremely 
important for its determination relating to critical habitat.
    Comment 2: Several commenters urged NMFS to initiate recovery 
efforts for the smalltooth sawfish and requested that NMFS develop a 
Recovery Program or Recovery Plan.
    Response: Section 4(f) of the ESA requires that NMFS develop 
recovery plans for ESA listed species, unless such a plan will not 
promote the conservation of the species. NMFS will convene a recovery 
team to develop a recovery plan for the smalltooth sawfish, after 
finalizing this rule and the critical habitat designation. NMFS 
recognizes that the U.S. DPS of smalltooth sawfish is at risk of 
extinction and that there is an urgent need to begin recovery efforts 
for this species as soon as possible. NMFS is committed to the recovery 
effort and intends to take the lead role in smalltooth sawfish recovery 
and research efforts even before a final recovery plan is developed. 
NMFS is currently funding studies to better define abundance, 
movements, and habitat requirements for smalltooth sawfish. NMFS 
believes that these research efforts are important in the development 
of the recovery plan and that they are important for the survival and 
recovery of the species. NMFS is also cooperating with state agencies 
and academia on their ongoing research and conservation efforts.
    Comment 3: One commenter requested that NMFS also list the 
largetooth sawfish because of the similarity in appearance to the 
smalltooth sawfish.
    Response: Section 4(e) of the ESA allows NMFS to treat any non-
listed species as an endangered or threatened species if: (1) the 
species so resembles a listed species that enforcement personnel would 
have substantial difficulty differentiating the listed and non-listed 
species; (2) the effect of this substantial difficulty is an additional 
threat to the listed species; and (3) such a treatment of an unlisted 
species will substantially facilitate the enforcement and further the 
policy of the ESA. NMFS does not believe that treating largetooth 
sawfish as endangered due to its similarity of appearance to smalltooth 
sawfish is warranted. NMFS recognizes that largetooth sawfish and 
smalltooth sawfish closely resemble each other, and that law 
enforcement personnel may have substantial difficulty differentiating 
the two species. However, historic records indicate that largetooth 
sawfish were rarely found in North America, and that all largetooth 
sawfish captured in U.S. waters were caught along the coast of Texas 
and Louisiana, outside of the known current range of smalltooth sawfish 
(see the sawfish 90-day finding, March 10, 2000; 65 FR 12959). 
Therefore, the possibility of confusing the two species in the U.S. is 
very small. It is unlikely that the similarity in appearance of the two 
species would pose an additional threat to smalltooth sawfish, or that 
treating largetooth sawfish as endangered would facilitate the 
enforcement of regulations to protect smalltooth sawfish.

Peer Review

    NMFS solicited expert opinions on the status review documents in 
compliance with the July 1, 1994, Peer Review Policy (59 FR 34270). The 
responses received from the reviews support the proposed listing 
action.

Consideration as a ``Species'' Under the Endangered Species Act

    Section 3(16) of the ESA, 16 U.S.C. 1532 (16), defines a species as 
``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.'' This definition allows for the listing of 
DPSs 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 did not find any indication that the current 
U.S. population of smalltooth sawfish interacts 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. The DPS policy provides 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. Although several southeastern U.S. 
states have regulations in place prohibiting fishing for this species, 
the smalltooth sawfish status review team was unable to identify any 
mechanisms regulating the exploitation of this species anywhere outside 
of the U.S. These differences are directly relevant to the inadequacy 
of existing regulatory mechanisms as a basis for considering the U.S. 
DPS as a species for purposes of the listing determination, 
particularly because the review team found no recent verifiable records 
of smalltooth sawfish populations outside of the U.S. Therefore, NMFS 
has determined that the U.S. population of smalltooth sawfish is 
discrete as defined under the DPS policy.

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 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 did not find any recent verifiable records of smalltooth 
sawfish populations outside the United States. 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. The U.S. population of smalltooth sawfish

[[Page 15676]]

comprises an important component of the sawfishes' remaining global 
biological diversity, as sawfish in general are suffering worldwide 
declines. The U.S. population of smalltooth sawfish is also the 
northernmost population in the western hemisphere. Loss of the U.S. 
population of smalltooth sawfish would clearly 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, the population of smalltooth sawfish that occurs in 
waters of the eastern United States is both discrete and significant 
and constitutes a DPS. Therefore, 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 larger animals can be 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 on 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, they 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.
    Smalltooth sawfish have declined dramatically in U.S. waters over 
the last century, as indicated by publication and museum records, 
negative scientific survey results, anecdotal fisher observations, and 
limited landings per unit effort (from Louisiana). The ``Fisheries 
Statistics of the United States'' data sets from 1945-1978 report that 
smalltooth sawfish landings in Louisiana declined from a high of 34,900 
lbs (15,830 kg) in 1949 to less than 1,500 lbs (680 kg) in most years 
after 1967. 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 sawfish catch records have declined 
during this period despite these tremendous increases in fishing effort 
underscores the population reduction in the species. While NMFS lacks 
time-series abundance data to quantify the extent of the DPS's decline, 
the best available information indicates 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.
    NMFS has carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
faced by this species and conservation efforts that are underway in 
determining to promulgate this final rule. The ESA defines an 
endangered species as one that is in danger of extinction throughout 
all or a significant portion of its range. NMFS has determined that the 
U.S. DPS of smalltooth sawfish is in danger of extinction throughout 
all or a significant portion of its range from a combination of four 
listing factors: The present 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 and manmade factors 
affecting the continued existence of the species. For these reasons, 
NMFS is listing the U.S. DPS of smalltooth sawfish as endangered. The 
listing 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 degradation of habitat has contributed to the decline of 
many marine species, and is judged 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. The rate of 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 (2,253-km) network of 
canals, levees, locks, and other water control structures that modulate 
freshwater flow from Lake Okeechobee, the Everglades, and other coastal 
areas.
    Potential detrimental impacts from the activities listed above on 
habitat of the U.S. DPS of smalltooth sawfish 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 for 
shallow, estuarine systems. The cumulative impacts from habitat 
degradation discussed above may reduce habitat quality and limit 
habitat quantity available to the species. Given current low levels of 
abundance, and its current retracted range, efforts need to be 
undertaken to better understand, avoid, minimize and mitigate these 
factors.

[[Page 15677]]

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

    Smalltooth sawfish have historically been caught as bycatch in 
various fishing gears throughout their historic range, 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 (Evermann and 
Bean, 1898). Their long, toothed rostrum makes it difficult to avoid 
entanglement in virtually any kind of large mesh gillnet gear. The saw 
penetrates easily through nets and causes the animal to become 
entangled when it attempts to escape. Shrimp trawling is another source 
of incidental mortality on smalltooth sawfish. Entangled specimens 
frequently have 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 are either killed outright 
or released only after removal of their saws.
    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, ranging from a high of 
9.3 metric tons to less than 0.1 metric tons during this time period. 
NMFS does not have any records of landings since 1978 (NMFS Fisheries 
Statistics and Economic Division's Database, commercial landings data).
    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 lbs (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) was 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 one 
percent of those in the 1950s, indicating a severe decline in the 
population. The lack of landings since 1978 shows that smalltooth 
sawfish have been commercially unavailable 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). Mote Marine Laboratory records 
documented a smalltooth sawfish taken in a shrimp trawler and one 
caught on a long-line off the coast of Florida, in 2002.(Simpfendorfer, 
pers. comm., 2002).
    In historical recreational fisheries records, smalltooth sawfish 
have occasionally occurred as bycatch. Occasional takes with harpoon or 
hook-and-line by recreational fishers in Florida were recorded during 
the first half of the twentieth 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 sawfish 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 prices 
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 taken for scientific purposes.

(c) Disease or Predation

    There is no information regarding predation or disease affecting 
smalltooth sawfish. The decline of the species 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 from some acute epizootic event. The few living 
specimens examined (Colin Simpfendorfer, Mote Marine Laboratory and 
Jose Castro, NMFS, pers. comm., 2000) 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 that have the potential 
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 and Louisiana, smalltooth sawfish can 
also still be legally harvested in state waters.
    As noted above, a century of net fisheries combined with the low 
reproductive potential of the sawfish (typical of most elasmobranchs) 
has 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, 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, NMFS believes that existing 
Federal and state laws, regulations, and policies are 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

[[Page 15678]]

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, such as overexploitation and habitat 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 a 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 per year to 
0.13 per year, and population doubling times range from 5.4 years to 
8.5 years (Simpfendorfer, 2000a). The American Fisheries Society 
considers smalltooth sawfish in North America to be at a high risk of 
extinction (Musick et al., 2000).

Listing Determination

    The U.S. DPS of smalltooth sawfish is at a critically low level of 
abundance based on the status review team's review of literature 
accounts, museum collection specimens, and other records of the 
species. 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, (5) 
hydrologic modifications, and (6) incidental catch in fisheries. 
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 its 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.
    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.

Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the ESA include development and implementation of 
recovery plans, requirements that Federal agencies use their 
authorities to conserve the species, and prohibitions against certain 
practices, such as taking individuals of the species. Recognition 
through listing encourages and results in conservation actions taken by 
Federal agencies, state agencies, private organizations, groups, and 
individuals. The ESA also provides for possible land acquisition and 
cooperation with the states. The conservation measures required of 
Federal agencies and the prohibitions against taking and harm are 
discussed, in part, here.
    The ESA and its implementing regulations set forth a series of 
general prohibitions that apply to all endangered wildlife. The 
prohibitions of section 9 of the ESA, in part, make it illegal for any 
person subject to the jurisdiction of the United States to take (to 
harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or 
collect, or to attempt to engage in any such conduct), to import into, 
or export from, the United States, to ship in interstate or foreign 
commerce in the course of commercial activity, or to sell or offer for 
sale in interstate or foreign commerce any endangered wildlife. To 
possess, sell, deliver, carry, transport, or ship endangered wildlife 
that has been taken illegally is also prohibited.
    Section 7 of the ESA imposes special duties on Federal agencies for 
the protection and conservation of endangered and threatened species. 
Section 7(a)(1) requires Federal agencies to use their authorities to 
conserve listed species and their habitats by carrying out conservation 
programs for endangered and threatened species. Section 7(a)(2) 
requires Federal agencies to ensure that activities they authorize, 
fund, or carry out are not likely to jeopardize the continued existence 
of any listed species or to destroy or adversely modify its critical 
habitat. If a Federal action may affect a listed species or its 
critical habitat, the responsible Federal agency must enter into 
consultation with the NMFS or the FWS. Regulations implementing this 
interagency cooperation provision of the ESA are codified at 50 CFR 
part 402.
    ESA sections 10(a)(1)(A) and 10(a)(1)(B) provide NMFS with 
authority to grant exceptions to the section 9 takings 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 take of listed species. NMFS has issued section 10(a)(1)(A) 
research and enhancement permits for other listed species for these 
purposes. ESA section 10(a)(1)(B) 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 agricultural or 
development activities that affect sawfish habitat and the management 
of state fisheries that may interact with sawfish.
    The ESA also provides some exceptions to the prohibitions, without 
permits, for certain antique articles and species held in captivity at 
the time of listing. ESA section 10(h) allows antique articles of 
listed species to be excluded from essentially all the ESA prohibitions 
as long as they are at least 100 years old and meet certain other 
specified conditions. Section 9(b)(1) provides a narrow exemption for 
animals held in captivity at the time of listing: those animals are not 
subject to the import/export prohibition or to protective regulations 
adopted by the Secretary, so long as the holding of the species in 
captivity, before and after listing, is not in the course of a 
commercial activity; however, 180 days after listing there is a 
rebuttable presumption that the exemption does not apply. Thus, in 
order to apply this exemption, the burden of proof for confirming the 
status of animals held in captivity prior to listing lies with the 
holder. The section 9(b)(1) exemption for captive wildlife would not 
apply to any progeny of the captive animals that may be produced post-
listing.

[[Page 15679]]

Take Guidance

    On July 1, 1994, NMFS and FWS published a series of policies 
regarding listing under the ESA, including 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). The 
intent of this policy is to increase public awareness of the effect of 
ESA listings on proposed and ongoing activities within the species' 
range. Although not binding, NMFS has identified specific activities 
that would likely not be considered a violation of section 9, as well 
as activities that would likely be considered a violation. Activities 
that NMFS believes would result in violation of section 9 prohibitions 
with respect to the U.S. DPS of smalltooth sawfish include, but are not 
limited to, the following:
    (1) Taking or attempting to take smalltooth sawfish, including as 
by-catch in commercial and recreational fisheries;
    (2) Possessing, delivering, transporting or shipping any smalltooth 
sawfish or smalltooth sawfish part that was illegally taken;
    (3) Delivering, receiving, carrying, transporting, or shipping in 
interstate or foreign commerce any smalltooth sawfish or smalltooth 
sawfish part, in the course of a commercial activity, even if the 
original taking of the smalltooth sawfish was legal;
    (4) Selling or offering for sale in interstate or foreign commerce 
any smalltooth sawfish or smalltooth sawfish part, except antique 
articles at least 100 years old;
    (5) Importing or exporting smalltooth sawfish or any smalltooth 
sawfish part to or from the United States;
    (6) Degradation or modification of the smalltooth sawfish's coastal 
habitat through, for example, such activities as agricultural and urban 
development, commercial activities, dredge and fill operations, 
boating, and diversions of freshwater run-off to the extent that such 
habitat modification would result in death or injury to smalltooth 
sawfish by significantly impairing essential behavioral patterns 
including breeding, rearing, migrating, feeding, or sheltering;
    (7) Collecting or handling wild smalltooth sawfish, even for 
scientific or conservation purposes, without the required permits;
    (8) Releasing a captive smalltooth sawfish into the wild. Although 
smalltooth sawfish held non-commercially in captivity at the time of 
listing are exempt from certain prohibitions, the individual animals 
are considered listed and afforded most of the protections of the ESA, 
including most importantly the prohibition against injuring or killing. 
Release of a captive animal has the potential to injure or kill the 
animal if the release is not properly planned and the animal is not 
properly acclimated. Of an even greater conservation concern, the 
release of a captive animal has the potential to affect wild 
populations of sawfish through introduction of diseases or 
inappropriate genetic mixing. Depending upon the circumstances of the 
case, NMFS may authorize the release of a captive animal through a 
section 10(a)(1)(A) permit for enhancement of survival; and
    (9) Harming captive smalltooth sawfish by, among other things, 
injuring or killing a captive smalltooth sawfish, through, for example, 
provision of experimental or potentially injurious veterinary care or 
conducting research or breeding activities on captive smalltooth 
sawfish, outside the bounds of normal animal husbandry practices. 
Specifically, NMFS has not found any records of successful captive 
breeding of smalltooth sawfish and, therefore, believes that captive 
breeding is inherently experimental and potentially injurious. 
Furthermore, the production of smalltooth sawfish progeny has 
conservation implications (both positive and negative) for wild 
populations of smalltooth sawfish. Experimental or potentially 
injurious veterinary procedures and research or breeding activities on 
smalltooth sawfish may, depending upon the circumstances, be authorized 
by NMFS through an ESA section 10(a)(1)(A) permit for scientific 
research or the enhancement of the propagation or survival of the 
species.
    Although not binding, NMFS believes that the following actions, 
depending on the circumstances, would not result in a violation of 
section 9 prohibitions with respect to the U.S. DPS of smalltooth 
sawfish:
    (1) Take of smalltooth sawfish authorized by, and carried out in 
accordance with, the terms and conditions of an ESA section 10(a)(1)(A) 
permit issued by NMFS for purposes of scientific research or the 
enhancement of the propagation or survival of the species;
    (2) Incidental take of smalltooth sawfish resulting from Federally 
authorized, funded, or conducted projects for which consultation under 
section 7 of the ESA has been completed, and when the otherwise lawful 
activity is conducted in accordance with any terms and conditions 
granted by NMFS in an incidental take statement in a biological opinion 
pursuant to section 7 of the ESA;
    (3) Incidental take of smalltooth sawfish resulting from otherwise 
lawful, non-Federal activities for which an ESA section 10(a)(1)(B) 
permit has been issued. Permittees may be individuals, groups (e.g., an 
agricultural cooperative whose farming activities affect habitat), or 
local or state governments (e.g., a state marine fisheries agency 
seeking incidental take authorization for fisheries managed by the 
state);
    (4) Continued possession of smalltooth sawfish parts that were in 
possession at the time of this listing. Such parts may be non-
commercially exported or imported; however, the importer or exporter 
must be able to provide sufficient evidence to show that the parts meet 
the criteria of an ESA section 9(b)(1) (i.e. held in a controlled 
environment at the time of listing, non-commercial activity).
    (5) Continued possession of live smalltooth sawfish that were in 
captivity or in a controlled environment (e.g. in aquaria) at the time 
of this listing, so long as the prohibitions under an ESA section 
9(a)(1) are not violated. Again, facilities should be able to provide 
evidence that the smalltooth sawfish were in captivity or in a 
controlled environment prior to listing. NMFS suggests that such 
facilities submit information to NMFS on smalltooth sawfish in their 
possession (e.g., size, age, and description of animals, and the source 
and date of acquisition) to establish their claim of possession (see 
FOR FURTHER INFORMATION CONTACT); and
    (6) Provision of care for live smalltooth sawfish that were in 
captivity at the time of this listing. As stated previously, animals 
held in captivity at the time of listing are still protected under the 
ESA and may not be killed or injured, or otherwise harmed, and, 
therefore, must receive proper care. Normal care of captive animals 
necessarily entails handling or other manipulation of the animals, and 
NMFS does not consider such activities to constitute take or harassment 
of the animals so long as adequate care, including adequate veterinary 
care is provided. Such veterinary care includes confining, 
tranquilizing, or anesthetizing smalltooth sawfish when such practices, 
procedures, or provisions are not likely to result in injury.
    Section 11(f) of the ESA gives NMFS authority to promulgate 
regulations that may be appropriate to enforce the ESA. Future 
regulations may be promulgated to regulate trade or holding of 
smalltooth sawfish, if necessary. The

[[Page 15680]]

public will be given the opportunity to comment on future proposed 
regulations.

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 the time it is 
listed upon a determination that such areas are essential for the 
conservation of the species. ``Conservation'' is defined as 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 maximum extent prudent and determinable, critical habitat 
be designated, concurrently, with the listing of a species. Section 
4(b)(6)(C)(ii) of the ESA, 16 U.S.C. 1533(b)(6)(C)(ii), provides for 
additional time to promulgate a critical habitat designation if such 
designation is not determinable at the time of final 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 has determined that designation of critical habitat is not 
determinable at this time. NMFS will complete ongoing research and 
gather and review other ongoing studies on the habitat use and 
requirements of smalltooth sawfish to attempt to identify smalltooth 
sawfish nursery and breeding areas. Once these and other habitat areas 
are identified and mapped, NMFS will publish, in a separate rule, a 
proposed designation of critical habitat for the U.S. DPS of smalltooth 
sawfish, to the maximum extent prudent and determinable.

References Cited

    Evermann, B.W. and B. A. Bean. 1897(1898). Indian River and its 
fishers. U. S. Comm. Fish.,Rep. Comm 22:227-248.
    Musick, J.A., M.M. Harbin, S. A. Berkeley, G.H. Burgess, A. M. 
Eklund, L. Findley, R.G. Gilmore, J.T. Golden, D.S. Ha, G.R. Hunstman, 
J.C. McGovern, S.J. Parker, S.G. Poss, E. Sala, T.W. Schmidt, G.R. 
Sedberry, H. Weeks, and S.G. Wright. 200. Marine estuarine, and 
diadromous fish stocks at risk of extinction in North America. 
Fisheries 25(11):6-30.
    Simpfendorfer, C.A. 2000(a). Predicting population recovery rates 
for endangered western Atlantic sawfishes using demographic analysis. 
Environmental Biology of Fishes 58: 371-377.

Classification

Regulatory Flexibility Act and Executive Order 12866

    The Conference Report on the 1982 amendments to the ESA notes that 
economic considerations have no relevance to determinations regarding 
the status of species. Therefore, the economic analysis requirements of 
the Regulatory Flexibility Act are not applicable to the listing 
process. In addition, listing actions are not subject to review under 
Executive Order 12866.

National Environmental Policy Act

    The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the 
information that may be considered when assessing species for listing. 
Based on this limitation of criteria for a listing decision and the 
opinion in Pacific Legal Foundation v. Andrus, 675 F.2d 825 (6th 
Cir.1981), NMFS has concluded that ESA listing actions are not subject 
to the environmental assessment requirements of the National 
Environmental Policy Act. (See also NOAA Administrative Order 216-6.)

Executive Order 13132, 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 and Federal interest, NMFS intends 
to engage in formal and informal contacts with states, other affected 
local and regional entities, and those engaged in ongoing conservation 
and recovery efforts for the smalltooth sawfish.

List of Subjects in 50 CFR Part 224

    Administrative practice and procedure, Endangered and threatened 
species, Exports, Imports, Reporting and recordkeeping requirements, 
Transportation

    Dated: March 25, 2003.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
For reasons set out in the preamble, 50 CFR part 224 is amended as 
follows:

PART 224--ENDANGERED MARINE AND ANADROMOUS SPECIES

0
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.

0
2. In Sec.  224.101, paragraph (a) is revised by inserting the 
following text after ``Shortnose sturgeon (Acipenser brevirostrum)'' 
and before ``Totoaba (Cynoscian macdonaldi)'': ``Smalltooth sawfish 
(Pristis pectinata) in the United States; Atlantic salmon (Salmo salar) 
Gulf of Maine population, including naturally reproducing populations 
and those river-specific hatchery populations cultured from them;''.
[FR Doc. 03-7786 Filed 3-31-03; 8:45 am]
BILLING CODE 3510-22-S