[Federal Register Volume 66, Number 73 (Monday, April 16, 2001)]
[Proposed Rules]
[Pages 19414-19420]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-9387]


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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.

(c) Disease or Predation

    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