[Federal Register Volume 76, Number 133 (Tuesday, July 12, 2011)]
[Rules and Regulations]
[Pages 40822-40836]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-17502]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 224

[Docket No. 0906221082-0484-03]
RIN 0648-XQ03


Endangered and Threatened Wildlife and Plants; Endangered Status 
for the Largetooth Sawfish

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

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: We, NMFS, issue a final determination to list the largetooth 
sawfish (Pristis perotteti) as endangered under the Endangered Species 
Act (ESA) of 1973, as amended. We do not intend to propose to designate 
critical habitat for the species. We have reviewed the status of the 
species and conservation efforts being made to protect the species, 
considered public and peer review comments, and we have made our 
determination that the largetooth sawfish is in danger of extinction 
throughout its range, and should be listed as an endangered species, 
based on the best available scientific and commercial data.

DATES: This final rule is effective August 11, 2011.

ADDRESSES: Assistant Regional Administrator for Protected Resources, 
NMFS, Southeast Regional Office, 263 13th Avenue South, St. Petersburg, 
FL 33701-5505.

FOR FURTHER INFORMATION CONTACT: Shelley Norton, NMFS, Southeast 
Regional Office (727) 824-5312 or Dwayne Meadows, NMFS, Office of 
Protected Resources (301) 713-1401.

SUPPLEMENTARY INFORMATION:

Background

    On November 30, 1999, the Center for Marine Conservation (currently 
called Ocean Conservancy) petitioned us to list North American 
populations of largetooth and smalltooth sawfish as endangered under 
the ESA. While the smalltooth sawfish underwent a formal status review 
(56 FR 12959), on March 10, 2000, we determined the petitioner did not 
present substantial scientific or commercial information indicating 
that the petitioned action may be warranted for the largetooth sawfish 
(Pristis perotteti). Specifically, there was no evidence that a North 
American population of largetooth sawfish existed. The largetooth 
sawfish was,

[[Page 40823]]

however, maintained on the candidate species list and later transferred 
to the new Species of Concern list on April 15, 2004 (69 FR 19975).
    On April 21, 2009, WildEarth Guardians petitioned the Secretary of 
Commerce to list the largetooth sawfish as endangered or threatened 
throughout its range and to designate critical habitat for this 
species. The petitioners also requested that we reconsider our previous 
March 10, 2000, negative finding on listing the North American 
population.
    On July 29, 2009, we published a positive 90-day finding (74 FR 
37671) announcing that the petition presented substantial scientific or 
commercial information indicating the petitioned action of listing the 
species may be warranted. We announced the initiation of a status 
review of the species and requested information to inform the agency`s 
decision on whether to propose the species for ESA listing. Our 
Southeast Regional Office (SERO) issued two contracts in 2009 to the 
Florida Museum of Natural History to compile all confirmed records of 
largetooth sawfish in the U.S. and internationally. The status review 
(NMFS, 2010) was conducted by the Southeast Fisheries Science Center 
(SEFSC) and SERO staff. The status review is available electronically 
at http://sero.nmfs.noaa.gov/pr/Largetoothsawfish.htm. On May 7, 2010, 
we published a proposed rule (75 FR 25174) to list Pristis perotteti as 
an endangered species under the ESA. We solicited public comment on the 
proposed listing for 60 days. We did not hold a public hearing for the 
proposal.

Listing Determinations Under the Endangered Species Act

    We are responsible for determining whether the largetooth sawfish 
is threatened or endangered under the ESA (16 U.S.C. 1531 et seq.). 
Section 4(b)(1)(A) of the ESA requires us to make listing 
determinations based solely on the best scientific and commercial data 
available after conducting a review of the status of the species and 
after taking into account efforts being made by any state or foreign 
nation to protect the species. We have followed a stepwise approach in 
making this listing determination. As the first of five steps (species 
determination, extinction risk assessment, threats assessment, 
protective efforts, status determination), we determined whether the 
largetooth sawfish is a ``species'' under the ESA. To be considered for 
listing under the ESA, a group of organisms must constitute a 
``species,'' which is defined in section 3 of the ESA to include 
taxonomic species plus ``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.''
    Next we completed an extinction risk assessment to determine the 
status of the species, in particular whether it qualified for 
threatened or endangered status. Section 3 of the ESA defines an 
endangered species as ``any species which is in danger of extinction 
throughout all or a significant portion of its range'' and a threatened 
species as one ``which is likely to become an endangered species within 
the foreseeable future throughout all or a significant portion of its 
range.'' For our extinction risk analysis we follow the general 
procedure developed by Wainwright and Kope (1999).
    In the third step, we assessed the threats affecting the species 
status. We did this by following the guidance in the ESA that requires 
us to determine whether any species is endangered or threatened due to 
any of the following five factors: (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; or (E) other natural or manmade factors 
affecting its continued existence (section 4(a)(1)(A) through (E)). 
After analyzing the threats affecting the species, we re-evaluated the 
extinction status for the species to see if the status changed after 
the assessment of the five factors.
    The fourth step involved an assessment of the efforts being made to 
protect the species to determine if these efforts are adequate to 
mitigate existing threats. We evaluated all conservation efforts using 
the criteria outlined in the joint NMFS and U.S. Fish and Wildlife 
Service (USFWS) Policy for Evaluating Conservation Efforts When Making 
Listing Decisions (PECE policy; 68 FR 15100; March 28, 2003) to 
determine their certainties of implementation and effectiveness. In the 
final step, we reassessed the preliminary extinction risk assessment 
conclusion from above to determine if the status of the species had 
changed based on the PECE analysis.
    To evaluate the petitioner's request that we designate critical 
habitat for the species, we followed the provisions in the ESA and in 
our implementing regulations (50 CFR part 424). Of particular relevance 
in this case are provisions that we cannot designate critical habitat 
in ``foreign countries'' or areas outside of U.S. jurisdiction and that 
we shall not designate as critical habitat areas outside of the 
geographical area presently occupied by a species, unless ``a 
designation limited to its present range would be inadequate to ensure 
the conservation of the species'' (50 CFR 424.12). Furthermore, to 
designate unoccupied critical habitat, we must also determine that the 
specific area(s) outside the geographic area currently occupied by the 
species at the time it is listed are essential to the conservation of 
the species.
    Section 4(b)(1)(B) of the ESA requires us to give consideration to 
species which: (1) Have been designated as requiring protection from 
unrestricted commerce by any foreign nation or pursuant to an 
international agreement; or (2) have been identified as in danger of 
extinction, or likely to become so within the foreseeable future, by 
any state agency or by any agency of a foreign nation.

Largetooth Sawfish Natural History

Taxonomy

    All sawfishes belong to two Genera (Pristis and Anoxypristis) in 
the Family Pristidae of the Order Pristiformes, and are classified as 
rays (Superorder Batoidea). Sawfishes are distinguished from other rays 
by the long snout (rostrum) with teeth on either side. Using molecular 
phylogeny (mitochondrial and nuclear gene analysis) paired with 
morphological characters, Faria (2007) distinguished seven extant 
species in the Pristidae. Sawfishes are classified into three 
morphological groups based on rostrum characteristics: Largetooth, 
smalltooth, and knifetooth (Garman, 1913). Three species are currently 
classified in the largetooth ``group,'' namely P. perotteti, P. 
microdon, and P. pristis, though difficulties associated with taxonomic 
identification are known (Faria, 2007; Wiley et al., 2008, Wueringer et 
al., 2009).
    Pristis perotteti has been referred to by other names throughout 
its range. For instance, it has been called P. antiquorum (as cited in 
Bigelow and Schroeder, 1953), P. zephyreus (Beebe and Tee-Van, 1941), 
P. pristis (McEachran and Fechhelm, 1998), or P. microdon (Garman, 
1913; Fowler, 1941; Chirichigno and Cornejo, 2001; Vakily et al., 
2002). Some scientists consider the eastern Pacific populations to be 
part of the species P. microdon (Garman, 1913; Fowler, 1941; 
Chirichigno and Cornejo, 2001), while others consider the eastern 
Pacific populations to be P. perotteti (Jordan and Evermann, 1896; 
refs. in Beebe and

[[Page 40824]]

Tee-Van, 1941; Compagno and Cook, 1995; Camhi et al., 1998; Cook et 
al., 2005). The species are generally classified based upon location 
(i.e., P. perotteti occurs in the Atlantic, while P. microdon is in the 
Indo-Pacific), and there is some evidence that tooth counts may differ 
(Wueringer et al., 2009). The conserved morphology of sawfishes makes 
identification difficult in some cases; most species are distinguished 
by the number of teeth on, and size of, the rostrum, placement of the 
first dorsal fin in relation to the pectoral fins, and shape of the 
lower lobe of the caudal fin. However, Faria (2007), used both 
mitochondrial and nuclear genes to investigate the population structure 
for all Pristidae. The results from his study indicate that the 
``largetooth'' species P. microdon and P. perotteti are separate 
species, and that P. microdon occurs in the Pacific, based on their 
mitochondrial deoxyribonucleic acid sequencing data and differences in 
external morphology (e.g., rostrum length and horizontal length of the 
eye). Based on the available taxonomic information on P. perotteti, we 
have determined the species' range is the eastern and western Atlantic 
Ocean.
    The rostral tooth count per side for P. perotteti ranges from 14 to 
22, and the space between the two most posterior teeth is between 4.5 
and 8.5 percent of rostrum standard length (Faria, 2007). The origin of 
the first dorsal fin is forward of the pelvic fin origin, and the lower 
lobe of the caudal fin is distinct at all maturity stages. The largest 
known specimen was a 275.6 in (700 cm) total length (TL) female 
captured in northern Brazilian waters (Almeida, 1999). The only other 
sawfish species that overlaps in range with P. perotteti is the 
smalltooth sawfish, P. pectinata. These species are differentiated by 
the number of teeth on the rostrum (22 to 29 per side for P. pectinata 
(Wiley et al., 2008), and 14 to 22 per side for P. perotteti (Faria, 
2007)), and the rostrum length of P. pectinata is shorter in relation 
to its body length.

Habitat Use and Migration

    Largetooth sawfish are generally restricted to shallow coastal, 
estuarine, and fresh waters, although they have been found at depths of 
up to 400 ft (122 m) in Lake Nicaragua. Largetooth sawfish are often 
found in brackish water near river mouths and large bays, preferring 
partially enclosed waters, lying in deeper holes and on bottoms of mud 
or muddy sand (Bigelow and Schroeder, 1953). This species, like the 
smalltooth sawfish, is highly mangrove-associated (Burgess et al., 
2009). Juvenile smalltooth sawfish are commonly found close to shore on 
muddy or sandy bottoms (NMFS 2009); however they are commonly observed 
swimming near the surface in the wild and in aquaria (Cook et al., 
2005). Largetooth sawfish move across salinity gradients freely and 
appear to have more physiological tolerance of freshwater than 
smalltooth sawfish (Bigelow and Schroeder, 1953; Dahl, 1971; Thorson, 
1974; 1976a; all as cited in Thorson, 1982a).
    Though their habitats once overlapped in the northern Gulf of 
Mexico, the largetooth sawfish historically had a more southerly range 
than the smalltooth sawfish, with what appears to be a more narrow 
seasonal migration pattern. Mature largetooth sawfish seasonally 
ventured into waters as far north as U.S. waters of the Gulf of Mexico.

Age and Growth

    There have been no formal studies examining the age and growth of 
the largetooth sawfish, though Thorson's (1982a) study of the Lake 
Nicaragua population estimated size at birth to be 30 in (75 cm) and an 
early juvenile growth rate of 13.8 to 15.7 in (35 to 40 cm)/year. 
Thorson (1982a) also estimated age of maturity to be 10 years and size 
at maturity 118 in (300 cm). Preliminary vertebral growth ring analysis 
has extrapolated largetooth sawfish (P. microdon) lifespan to an 
estimated maximum age of 51 years (Peverell, 2006), and we determined 
this to be our best available estimate of largetooth sawfish lifespan. 
Growth rates of captive sawfish in Colombia averaged 7.7 in (19.6 cm) 
per year (Bohoroquez, 2001).

Reproductive Biology

    The reproductive method of sawfishes is most likely lecithotrophic 
viviparity; ova are internally fertilized, developing embryos receive 
nourishment from an external yolk sac, and the pups are born live after 
the yolk sac is absorbed. The only known reproductive study of 
largetooth sawfish was from Lake Nicaragua in the 1970s (Thorson, 
1976a). This study found that litter size ranged from one to 13 pups, 
with an average of 7.3 pups per cycle. The gestation period was 
approximately 5 months, with a biennial reproductive cycle. After 
gestation, young are born between October and December (Oetinger, 
1978). Thorson (1976a) also found that both ovaries appeared to be 
functional, though the left seemed to be larger and carry more ova. 
Parturition occurred in October and November and size at birth was 
between 28.7 and 31.5 in (73 and 80 cm) TL. Thorson (1976a) reported 
that the smallest gravid female was 120 in (305 cm) TL, and based on 
this and other observations, reported the size at maturity is estimated 
to be around 118 in (300 cm) TL. The life history of largetooth 
sawfish, like most elasmobranchs, is characterized by slow growth, late 
maturity, and low fecundity, which generally contributes to a low 
intrinsic rate of population increase.
    Simpfendorfer (2000) estimated that largetooth sawfish in Lake 
Nicaragua had an intrinsic rate of increase (r) of 0.05 to 0.07 per 
year, with a population doubling time (tx2) of 10.3 to 13.6 
years. Intrinsic rates of increase below 0.1 are considered low, making 
species particularly vulnerable to population decline (Musick et al., 
2000). The results indicated that if effective conservation measures 
are put in place for the species and its habitats, recovery to levels 
with little risk of extinction will take many decades. Since Thorson 
(1973) hypothesized that many Lake Nicaragua sawfish may live their 
whole lives in the lake and Faria (2007) reported that the Lake 
Nicaragua sawfish may be a separate stock, the life history parameters 
estimated by Simpfendorfer (2000) may be unique to that subpopulation 
or stock.

Diet and Feeding

    No published information is available that quantitatively describes 
the diet of largetooth sawfish. Bigelow and Schroeder (1953) reported 
that, in general, sawfish subsist on the most abundant small schooling 
fishes in the area, such as mullets and small clupeids. There is also 
some evidence of largetooth sawfish feeding on crustaceans and other 
small benthic organisms (Bigelow and Schroeder, 1953). In these cases, 
the rostrum may be used to stir up the bottom sediments to locate prey, 
and in the case of fish predation, the rostrum may be used to stun or 
wound the fish in a slashing movement (Bigelow and Schroeder, 1953).

Predation

    While there is potential for competition between P. perotteti and 
P. pectinata due to their overlap in range and habitat types, there is 
no data to support this, and differences in patterns of habitat use and 
salinity tolerance may adequately partition the niches of these 
species. Thorson (1970) speculated that the Lake Nicaragua population 
may have also competed with the bull shark, Carcharhinus leucas, as 
both were quite prevalent (Thorson, 1970); however, both species have 
since declined to the point of near extirpation. A Pristis

[[Page 40825]]

species has been documented within the stomach of a bottlenose dolphin 
near Bermuda (Bigelow and Schroeder, 1953), in the stomach of a bull 
shark (C. leucas) in Australia (Thorburn et al., 2004), and a juvenile 
smalltooth sawfish was captured with fresh bite marks from what appears 
to be a bull shark (Tonya Wiley, pers. comm., 2009). The International 
Union for Conservation of Nature (IUCN) Red List for the largetooth 
sawfish also states that crocodiles prey on the species (Charvet-
Almeida et al., 2007).

Distribution and Abundance

    Historically, P. perotteti are thought to inhabit warm temperate to 
tropical marine waters in the eastern and western Atlantic and 
Caribbean. In the western Atlantic, P. perotteti occurred from the 
Caribbean and Gulf of Mexico south through Brazil, and in the United 
States, largetooth sawfish were reported in the Gulf of Mexico, mainly 
along the Texas coast and east into Florida waters (Burgess and Curtis, 
2003; Burgess et al., 2009). Burgess et al. (2009) also state that, 
based on the evidence, the species rarely occurred in Florida waters 
and that nearly all records of largetooth sawfish encountered in U.S. 
waters were limited to the Texas coast. In the eastern Atlantic, P. 
perotteti historically occurred from Spain through Angola.
    Currently, P. perotteti are thought to primarily occur in 
freshwater habitats in Central (includes Mexico) and South America and 
West Africa. In Atlantic drainages, largetooth sawfish have been found 
in freshwater at least 833 miles (1,340 km) from the ocean in the 
Amazon River system (Manacapuru, Brazil), as well as in Lake Nicaragua 
and the San Juan River; the Rio Coco, on the border of Nicaragua and 
Honduras; Rio Patuca, Honduras; Lago de Izabal, Rio Motagua, and Rio 
Dulce, Guatemala; the Belize River, Belize; Mexican streams that flow 
into the Gulf of Mexico; Las Lagunas Del Tortuguero, Rio Parismina, Rio 
Pacuare, and Rio Matina, Costa Rica; Rio San Juan and the Magdalena 
River, Colombia; the Falm River in Mali and Senegal; the Saloum River, 
Senegal; coastal rivers in Gambia; and the Geba River, Guinea-Bissau 
(Thorson, 1974; 1982b; Castro-Aguirre, 1978 as cited in Thorson, 1982b; 
Compagno and Cook, 1995; C. Scharpf and M. McDavitt, pers. comm., as 
cited in Cook et al., 2005).

The United States

    Although the first confirmed record of a U.S. largetooth sawfish 
was from ``the Gulf of Mexico'' in 1878 (Burgess et al., 2009), they 
were likely present prior to this time period. Sawfish encounters were 
reported in the entire Gulf of Mexico in early popular literature of 
the late 1800s but the similarities between the smalltooth and 
largetooth sawfishes limited the ability of non-specialists to 
discriminate between the two species. Because of this, there is no 
conclusive data available for largetooth sawfish abundance before 
fishing and other anthropogenic pressures began to affect their 
distribution. Recreational fishers in Texas began targeting prize 
fishes, including large elasmobranchs such as sawfishes, in the 1930s. 
Photographs taken of these catches were favored in the print media, 
allowing Burgess et al. (2009), to identify 33 largetooth sawfish in 
Texas.
    Though reported in the United States, it appears that P. perotteti 
was never as abundant as P. pectinata, with approximately 39 confirmed 
records (33 in Texas) from 1910 through 1961, and no confirmed 
sightings in the years since (Burgess et al., 2009). A 1963 newspaper 
article reporting a shrimp trawler off the coast of Texas taking a 
``broadbill sawfish'' may refer to a largetooth sawfish (Burgess et 
al., 2009). One specimen was reported between 1916 and 1919 in 
Louisiana. The capture location and identification as a largetooth 
sawfish species ``presumably from Alabama'' was catalogued at the 
University of Alabama but could not be verified (Burgess et al., 2009). 
Four individuals from Florida were noted between 1910 and 1960 (Burgess 
et al., 2009). Two of the reports in Florida were identified by 
elasmobranch researcher Stewart Springer by rostral tooth counts: One 
from Key West (1941) and another from Port Salerno (Baughman, 1943; 
Bigelow and Schroeder, 1953). Port Salerno is on the east coast of 
Florida, making this capture the only reported largetooth sawfish 
outside of the Gulf of Mexico in the United States. Another specimen 
from south Florida was collected by the American Museum of Natural 
History in 1910. The final record for P. perotteti in Florida was 
recorded in the Springer and Woodburn (1960) study of Tampa Bay fishes. 
The dried specimen was on display at the Sea-Orama in the City of 
Clearwater Beach, but the identification was not verified, and the size 
of the specimen (Burgess et al., 2009) was much smaller than any other 
individual captured in U.S. waters. With this exception, all largetooth 
sawfish captured in the U.S. were 14 feet (4.3 m) in length or larger.
    In Texas, largetooth sawfish were primarily found in three regions: 
Padre Island-Laguna Madre, Corpus Christi-Port Aransas, and Galveston-
Freeport (Burgess et al., 2009). Most were caught from 1929 through 
1957, though some records may have been duplicated (Baughman, 1943). 
Ten largetooth sawfish were encountered in the Corpus Christi-Port 
Aransas region, from 1917 to 1961, though again duplication of records 
is possible. The highest number of records is from the northeast Texas 
coast (Galveston) and the lowest number from near the Texas-Mexico 
border (Padre Island), corresponding to the historical freshwater 
inflow patterns of the region (Longley, 1994). That is, sighting 
frequency is positively correlated with higher freshwater flow 
discharge. While it is likely that the freshwater affinity of this 
species, especially in comparison to the smalltooth sawfish, attracted 
the largetooth sawfish to these high outflow areas, these numbers may 
also be an artifact of higher fishing effort or likelihood of reporting 
in that area.
    Burgess et al. (2009) report captures of largetooth sawfish in 
Texas were primarily in shallow inshore waters and the majority (65 
percent) of those captures noted were taken from fisheries using rod 
and reel gears. Additionally, shrimp nets (reported as shrimp seines, 
shrimp net, and shrimp trawls) are the gear type associated with 
approximately 25 percent of all captures. Where size data could be 
determined, all largetooth sawfish caught in Texas were greater than 16 
ft (4.88 m) TL. Burgess et al. (2009) report all largetooth sawfish 
found in U.S. waters were large (>14 ft (4.3 m)) and were primarily 
encountered during periods of warm water (May through October), 
suggesting that adults of this species mainly utilized Texas waters in 
the summer (but data on month of capture only exist for 10 records). 
The last confirmed record of P. perotteti in U.S. waters was from Port 
Aransas, Texas on June 24, 1961. The last records for other Gulf of 
Mexico states include Florida in 1941 and Louisiana in 1917. No records 
of largetooth sawfish were found from Mississippi, and, as stated 
previously, the one Alabama specimen could not be verified.

The Caribbean, Central America, and Northern South America

    Only 33 confirmed records of P. perotteti exist for this region 
outside of Costa Rica and Nicaragua (Burgess et al., 2009). The lack of 
data likely stems from several factors, including confusion or 
ambiguity of identification with smalltooth sawfish and the lack of 
scientific surveys and popular reports during the time of highest 
abundance. In total, 5 largetooth sawfish records were from Mexico, 5 
from Guatemala, 1 from Honduras, 483 from Nicaragua, 37 from Costa 
Rica, 7 from Colombia, 6 from

[[Page 40826]]

Venezuela, 1 from Guyana, 5 from Suriname, 1 from French Guiana, and 1 
from Trinidad. Length data was not available for most of these 
specimens.
    Of the known Mexican largetooth sawfish, four were from the 
southwestern Gulf of Mexico (Tamaulipas, Veracruz, Tabasco, and 
Campeche), while one was captured at the northeastern tip of the 
Yucatan Peninsula (Quintana Roo). The mature (17.7 ft (5.4 m in total 
length), 1764 lbs (800 kg)) Yucatan individual was captured in 1997, 
which is the northern-most record in recent history. It appears that 
the last records in the Mexican Gulf of Mexico were prior to 1978, and 
Caribbean records are very sparse.
    No encounters could be substantiated in Belize (Burgess et al., 
2009). All five Guatemalan largetooth sawfish were from a survey of 
Lake Izabal between 1946 and 1947, and sawfishes were reported to be 
important inland fishes (Saunders et al., 1950). Though reported by 
Thorson et al. (1966a; 1966b) to be common throughout the area, a claim 
which was mirrored by local fishers at the time, there are no recent 
reports of encounters with sawfishes in Guatemala. The lone largetooth 
sawfish reported from Honduras was acquired from that country, but the 
true origin of the rostrum and the date of capture could not be 
confirmed.
    The vast majority of P. perotteti records from Costa Rica (34 of 
37) and Nicaragua (397 of 483) stem from Thorson's (1982a; 1982b) years 
of work on the Lake Nicaragua-Rio San Juan system. The San Juan River 
originates at Lake Nicaragua and runs along the Nicaragua-Costa Rica 
border until it reaches the Caribbean slightly south of the Nicaraguan 
border; therefore, movement between the countries was likely. Sawfish 
were noted in Nicaragua as early as 1529 by a Spanish chronicler (Gill 
and Bransford, 1877). This species was also reported in Nicaragua by 
Meek (1907), Regan (1908), Marden (1944), Bigelow and Schroeder (1953), 
Hagberg (1968), and Baez (1980a; 1980b). A commercial fishery for the 
largetooth sawfish that began in earnest around 1970 quickly decimated 
the Lake Nicaragua population (Thorson, 1982a). Low-level sustenance 
fishing for this species was common before this time, but the 
Nicaraguan government helped to establish a processing plant in 1970, 
which processed and sold the meat, fins, and rostra in an efficient 
manner. In the 1970s, an American supermarket chain (A&P) produced 
advertisements in their Ohio, Pennsylvania, and Illinois chains which 
included ``Fish Features'' listing ``Sierra Steaks'' using the Spanish 
name for sawfish, pez sierra, as a fresh fish available in their stores 
(The Times Recorder, 1975). By 1981, Thorson (1982a) was unable to 
locate a single live specimen. Thorson (1982a) documented that within a 
decade the commercial largetooth sawfish fishery had removed the 
species from shallow water habitats within Lake Nicaragua. The species 
was relegated to deep water ``pockets'' remaining in Lake Nicaragua. 
Commercial fishing for largetooth sawfish in Lake Nicaragua was banned 
in 2006, but the species is still caught incidentally by fishers 
netting for other species (McDavitt, 2002). A Lake Nicaragua fisherman 
reported that he encounters a few sawfish annually (McDavitt, 2002). 
There are no known Nicaraguan records of the largetooth sawfish outside 
of the Lake Nicaragua-Rio San Juan-Rio Colorado system (Burgess et al., 
2009).
    Bussing (2002) indicated that this species was known to inhabit the 
Rio Tempisque and tributaries of the San Juan basin in Costa Rica. 
Three occurrences in that river were found in internet searches, one 
being a 200 lb (90.7-kg) specimen caught recreationally (Burgess et 
al., 2009). In Colombia, the Magdalena River estuary was the primary 
source for largetooth sawfish encounters from the 1940s (Miles, 1945), 
while other records originated from the Bahia de Cartagena and Isla de 
Salamanca (both marine), and Rio Sinu (freshwater) from the 1960s 
through the 1980s (Dahl, 1964; 1971; Frank and Rodriguez, 1976; Alvarez 
and Blanco, 1985). Scientists in the country reported that there have 
been no sightings of this species in Colombia for about 10 years 
(Burgess et al., 2009).
    Though thought to have once been abundant in some areas of 
Venezuela (Cervignon, 1966a; 1966b), the last of the four confirmed 
records of P. perotteti from that country was from 1962. The single 
records from Guyana, French Guiana, and Trinidad appear to be from the 
late 1800s and early 1900s. Of the five Suriname accounts, the latest 
was collected in 1962.

Brazil

    The largetooth sawfish was assessed as critically endangered in 
Brazil by Charvet-Almeida and Faria (2008). A total of 139 reports are 
available for this species (Burgess et al., 2009), some from as 
recently as 2009. Most of the records for which location is known 
originated in the state of Amazonas (12), which encompasses the middle 
section of the Amazon River basin along with the confluence of the Rio 
Negro and Rio Solimoes (in the state of Manaus). The other known 
locations are from the states of Rio Grande do Norte, Sergipe, Bahia, 
Espirito Santo, Rio de Janeiro, and Sao Paulo (1 record each), Para (7 
records), and Maranhao (3 records). A few more reports were reported in 
Maranhao (email from Patricia Charvet-Almeida to Shelley Norton, 2010). 
Para contains the estuary and lower reaches of the Amazon River, and 
Maranhao is just southeast of Para. Anectodal reports from fishers 
indicate that they are also caught in Amapa, which is the northernmost 
state in Brazil (Charvet-Almeida and Faria, 2008).
    The Amazon River basin and adjacent waters are traditionally the 
most abundant known area for largetooth sawfish in Brazil (Bates, 1964; 
Marlier, 1967; Furneau, 1969); however, scientific collection and 
fisheries data for this region are very limited, both historically and 
recently. Sawfishes are captured as bycatch in artisanal and commercial 
fisheries in northern Brazil (Charvet-Almeida, 2002). Most historic 
records of largetooth sawfish in the Amazon River (Amazonia) predate 
1974. Known lengths ranged from 4.9 to 8.2 ft (1.5 to 2.5 m) in total 
length. Mathew McDavitt (pers. comm., 2010) notes there is anecdotal 
evidence that P. perotteti is currently being targeted in Brazil for 
the lucrative Chinese shark fin trade. A recent popular guide in China 
for dried seafood products provides descriptions of a dozen or so 
popular shark fin categories. Based on photographs and descriptions, 
the category huang jiao (literally: ``yellow-glue'') comes from 
sawfishes, the trade name deriving from its beige color and the 
especially copious gelatine it produces when cooked. This Chinese dried 
seafood book gives the current sources for huang jiao fin, noting that 
the supply from Brazil is favored nowadays due to its comparatively 
large size.
    The Brazilian sawfish populations, which include both P. perotteti 
and P. pectinata, are found in this region, but are almost exclusively 
of the largetooth species, are presumably large and abundant compared 
to those captured in other localities, due to the fact that sawfishes 
have not yet been extirpated in Brazilian waters to the extent that 
they have been elsewhere. Presumably both species are caught and sold. 
No quantification of the exact species or number of captured or sold 
sawfishes is currently available, though Charvet-Almeida and Faria 
(2008) reported that as many as 1500 small and medium rostra and 180 
large rostra were sold each year in Para alone.
    The two most recent largetooth records in Brazil were from 
Maranhao, one caught by a fisher in 1998 and another in 2009. The 
latter was a gravid

[[Page 40827]]

female estimated to be 7 m TL (Burgess et al., 2009). Earlier reports 
of largetooth sawfish in Maranhao were mostly from the 1980s and 90s 
(Lessa, 1986; Martins-Juras et al., 1987; Stride and Batista, 1992; 
Menni and Lessa, 1998; and Lessa et al., 1999). Sawfish are likely 
caught incidentally by shark fishers in this state and landed for their 
saws (Almeida et al., 2006).
    Records of largetooth sawfish in each of the states south of 
Maranhao are limited to one each, and the dates of capture are largely 
unknown, though most appear to be from the nineteenth century. An 
archeological site in Sao Paulo yielded tooled P. perotteti rostral 
teeth, though whether they came from locally caught animals, or were 
traded from the north is unknown. Charvet-Almeida and Faria (2008) 
concluded that largetooth sawfish are most likely extirpated in most of 
the states south of Maranhao.

West Coast of Africa

    Historical records indicate that largetooth sawfish were once 
relatively common in the coastal estuaries of West Africa. Verified 
records exist from Senegal (1841 to 1902), Gambia (1885 to 1909), 
Guinea-Bissau (1912), Republic of Guinea (1965), Sierra Leone (date 
unknown), Liberia (1927), Cote d'Ivoire (1881 to 1923), Congo (1951 to 
1958), Democratic Republic of the Congo (1951 to 1959), and Angola 
(1951) (Burgess et al., 2009). Most records, however, lacked species 
identification and locality data and may have been confused 
taxonomically with other sawfish species that also occur in the area. 
Unpublished notes from a 1950s survey detail 12 P. perotteti from 
Mauritania, Senegal, Guinea, Cote d'Ivoire, and Nigeria, ranging in 
size from 35 through 276 in (89 through 700 cm) in total length 
(Burgess et al., 2009).
    A more recent status review by Ballouard et al. (2006) reported 
that sawfishes, including the largetooth sawfish, were once common from 
Mauritania to the Republic of Guinea, but are now rarely captured or 
encountered. According to this report, the range of sawfishes has 
decreased to the Bissagos Archipelago (Guinea Bissau). The most recent 
sawfish encounters outside Guinea Bissau were in the 1990s in 
Mauritania, Senegal, Gambia, and the Republic of Guinea. The most 
recent documented P. perotteti capture was from 2005 in Nord de 
Caravela (Guinea Bissau), along with anecdotal accounts from fishers of 
captures off of two islands in the same area (Burgess et al., 2009).

Summary and Abundance

    As documented above, the range of the largetooth sawfish has 
contracted significantly on both sides of the Atlantic. Although no 
time-series abundance data exists to quantify the extent of the decline 
of the species throughout its range, we believe that with the 
substantial number of commercial and recreational fisheries fishing 
along our U.S. coast, the uniqueness of the species morphology, and 
because media and internet sites are easily accessible to the public, 
largetooth sawfish encounters would be noteworthy and reported. 
Additionally, outreach efforts along the Gulf of Mexico coast in the 
U.S. for the smalltooth sawfish, which includes printed brochures and 
signage in local bait shops, marinas, and boat ramps on where and how 
to report sawfish encounters, should have increased the likelihood of 
reporting a largetooth sawfish encounter. Access to media and internet 
sites for reporting largetooth encounters outside the U.S. is most 
likely less common in some of the remote areas along the coasts of 
Central America, the Amazonian region of Brazil, and West Africa. 
Nevertheless, the apparent decrease of sightings over time suggests 
that the species has undergone severe declines in abundance throughout 
its range. Moreover, the decline in museum records, negative scientific 
survey results in the U.S. and Lake Nicaragua, and anecdotal reports 
from fisher people suggest the trend for the species is declining 
(Burgess et al., 2009).

Peer Review and Public Comment

    In December 2004, the Office of Management and Budget (OMB) issued 
a Final Information Quality Bulletin for Peer Review establishing 
minimum standards for peer review. Similarly, a joint NMFS/FWS policy 
(59 FR 34270; July 1, 1994) requires us to solicit independent expert 
review from at least three qualified specialists, concurrent with the 
public comment period. We solicited peer review comments from four 
scientific peer reviewers. Public comments were received from five 
commenters. Three commenters supported our decision to list the species 
as endangered under the ESA, but none of the commenters or peer 
reviewers indicated they did not support the decision to list the 
species. Several of the commenters did not support our decision not to 
designate critical habitat. Two commenters provide information on the 
occurrence of the species within specific areas. The peer review and 
public comments are summarized below.

Peer Review Comments

    Comment 1: General editorial peer review comments identified some 
errors in the lack of italicization of the species genus and species 
name.
    Response: We have corrected these errors in the final rule.
    Comment 2: No directed research for largetooth sawfish is ongoing 
in Texas, but Texas Parks and Wildlife Department (TPWD) is conducting 
surveys which could capture sawfish in Texas waters. TPWD has ongoing 
standardized fisheries independent and dependent monitoring programs in 
all of the bay systems and in the Gulf of Mexico along the Texas 
coastline for the last 35 years. The surveys are conducted using 
seines, trawls, and gill nets annually. All of the gears used have been 
found to capture sawfish. Only two sawfish have been recorded during 
the sampling and they were smalltooth sawfish.
    Response: This supports the information in our files on the 
extirpation of the largetooth sawfish from Texas waters for decades. We 
have incorporated this information into our files.
    Comment 3: TPWD classifies the smalltooth sawfish and largetooth 
sawfish as endangered or threatened animals and prohibits the killing 
or take of either species. TPWD also distributes ``Shark Identification 
and Regulations in Texas'' brochures that includes information on the 
prohibition of take of sawfish and also provides information on where 
to report an encounter. These brochures are distributed from TPWD Field 
Stations, Law Enforcement Offices, during outreach events, public 
meetings, public hearings, and upon request. In 2010, NMFS funded the 
TPWD with section 6 ESA funds to conduct outreach and educational 
events to promote reporting sawfish captures to the National Sawfish 
Encounter Database.
    Response: Outreach efforts in Texas have been very successful and 
have resulted in the public reporting of smalltooth sawfish encounters 
to the National Sawfish Encounter Database, and the reporting of the 
location of curio saws of largetooth sawfish for the purposes of 
obtaining genetic information.
    Comment 4: The largetooth sawfish will benefit from an endangered 
species listing, but critical habitat should not be designated or a 
recovery plan developed, unless the species returns to U.S. waters. 
Designating critical habitat or developing a recovery plan would be

[[Page 40828]]

arbitrary and capricious with little scientific merit.
    Response: We do not propose to designate critical habitat. We will 
develop a recovery plan for the largetooth sawfish if we determine that 
sections 4(f)(1) and 4(a)(1)(A) of the ESA apply. Section 4(f)(1) of 
the ESA states that ``Recovery plans shall be developed unless such 
plans will not promote the conservation of the species * * *'' Section 
4 (f)(1)(A) of the ESA also states ``Priority will be given to the 
maximum extent practicable, to those species that will most likely 
benefit from such plans * * *''
    Comment 5: Several reviewers requested we designate critical 
habitat in foreign countries and one reviewer stated that we can 
determine the habitat capacity for the species in foreign countries.
    Response: We do not have specific information on the habitat 
capacity for the largetooth sawfish in foreign countries and no law 
provides us with authority to designate critical habitat in foreign 
countries (50 CFR 424.12 (h)).
    Comment 6: The Convention on International Trade of Endangered 
Species (CITES) does not include the U.S. in their described 
distribution of P. perotteti listing, it only includes Brazil, 
Colombia, El Salvador, Gambia, Guatemala, Guinea Bissau, Honduras, 
Mali, Nicaragua, Panama, and Senegal.
    Response: The range information in CITES is consistent with the 
information in our files.
    Comment 7: Hotspots exist for the species throughout its range. 
Conservation efforts should be made which include the development of 
regulations and the redirecting of law enforcement efforts in hotspot 
areas. Three potential hot spots are Costa Rica, Nicaragua, and Brazil. 
Additionally, a proposed dredging project in the San Juan River in 
Nicaragua was identified in a hotspot area that will modify water flow 
and natural habitats for largetooth and smalltooth sawfish in the area.
    Response: NMFS agrees that Costa Rica, Nicaragua, and Brazil appear 
to be hotspots for the species. We cannot develop regulations or manage 
law enforcement efforts in foreign countries, but we can provide 
information to international sawfish researchers and government staff 
on potential conservation issues or threats to listed species. 
Prohibitions under section 9 of the ESA apply to all U.S. citizens and 
U.S. government actions, anywhere.
    Comment 8: Although some biologists in Costa Rica believe the 
largetooth sawfish has been extirpated from the country, recent 
anecdotal information from fisherman indicate that sawfish (smalltooth 
or largetooth) are still present in the area.
    Response: We do not have any information on recent reports of 
largetooth sawfish in Costa Rica, but we will follow-up with the 
reviewer to try to obtain more information on the recent reports.
    Comment 9: A recommendation was made to advise local governments, 
universities, researchers, and non-governmental agencies to become more 
involved in promoting and funding scientific research throughout the 
range of the largetooth sawfish. The reviewer also provided a list of 
potential research efforts that should be considered.
    Response: We will work with the IUCN Shark Specialist Group's newly 
formed Sawfish Conservation Committee, to develop a conservation 
strategy and plan for all sawfish species, foreign and domestic. The 
conservation plan should identify actions or research efforts necessary 
to conserve all species of sawfish.
    Comment 10: A reviewer noted that mangrove areas are considered 
pupping grounds for P. perotteti but provided no data or references in 
support.
    Response: We could not locate specific information on pupping 
grounds for P. perotteti, but we believe the species may use mangrove 
habitat for pupping, based on the information known on the use of 
mangrove habitats as nursery areas for P. pectinata.
    Comment 11: Add information into the ``Age and Growth'' section 
from a paper written by Simpfendorfer (2000).
    Response: Simpfendorfer (2000) provides population growth rate 
information which is included in the ``Reproductive Biology'' section. 
Growth rate information from captive sawfish in Colombia from 
Bohoroquez (2001) was added to the ``Age and Growth'' section.
    Comment 12: A reviewer did not agree that there is doubt regarding 
the reproductive method for sawfish.
    Response: No reproductive studies on P. perotteti exist in the 
literature so reproductive method is inferred from studies of closely 
related sawfishes.
    Comment 13: Are foreign records of largetooth sawfish reports from 
museums or grey literature?
    Response: The primary source of foreign records of P. perotteti 
comes from Burgess et al. (2009). Burgess et al. (2009) used various 
methods to gather information on the species including personal 
interviews, literature searches, historic newspaper and magazine 
searches, and interviews with scientists in museum curators in foreign 
countries.
    Comment 14: A reviewer suggested we change the word ``few'' to 
``many'' when we discuss the number of decades needed to recover P. 
perotteti.
    Response: We agree, Simpfendorfer (2000), determined it will take 
several decades to recover the species and changed the text.
    Comment 15: A reviewer requested additional citations throughout 
the document.
    Response: The reviewer did not provide suggested citations to add 
to our document. Information is limited on P. perotteti, and we 
provided the applicable citations available on the species.
    Comment: 16: Rostral teeth counts can overlap between P. perotteti 
and P. pectinata.
    Response: We acknowledge that the rostral teeth counts can overlap 
between the species, both species can have 22 teeth per side.
    Comment 17: A reviewer stated that, based on the limited fisheries 
data available on P. perotteti, that the statement that P. perotteti 
was never abundant in U.S. waters should be restated as ``never as 
abundant as P. pectinata.''
    Response: We agree with the reviewer statement and changed the text 
in the final rule.
    Comment 18: Guerillas and drug smugglers make it almost impossible 
to access some areas in Central and South America.
    Response: We acknowledge that illegal activities may affect access 
to areas that support P. perotteti and recent information on the 
presence of the species in these areas may not be available.
    Comment 19: NMFS does not need evidence of habitat loss throughout 
the species' range to say that habitat loss is a threat outside the 
U.S. The reviewer also notes that population growth is linked to a 
world-wide habitat problem that affects all coastal and estuarine 
species.
    Response: We acknowledge that habitat loss is occurring throughout 
the species' entire range in the proposed and final rule in the ``The 
Present or Threatened Destruction, Modification, or Curtailment of its 
Habitat or Range'' section and we also recognize that habitat losses 
are occurring range-wide.
    Comment 20: A reviewer noted that data may not exist outside of 
Lake Nicaragua on the exact extent of the species decline but that it 
is correct to say that severe declines have taken place within its 
range.
    Response: NMFS agrees that no other fishery data exists outside of 
the Lake Nicaragua fishery data and we agree that significant declines 
in the species abundance have most likely occurred.

[[Page 40829]]

    Comment 21: Capture records in the states south of Maranhao are 
incorrect. A few more reports from other states occurred in the 1970's.
    Response: We corrected the information in our final rule.
    Comment 22: A score of (3) was very low on our evaluation of 
``other risk'' factors for evaluating extinction risk. Simpfendorfer 
(2000) indicates recovery would take decades and the species is very, 
very, vulnerable to fishing gear entanglement, so the reviewer suggests 
the score should be increased. The reviewer also suggests that fishing 
gears or risk of entanglement would fit better in the ``other risk'' 
evaluation category.
    Response: A risk level of 3 equates to a moderate risk, which 
according to Wainwright and Kope's (1999) is defined as factors that 
contribute significantly to long-term risk of extinction, but do not 
alone constitute a danger of extinction in the future. We rated the 
``other risk'' factors, which includes life history characteristics of 
slow growth and late maturity a 3 because life history alone does not 
alone constitute a danger of extinction in the future. We did not 
change our ranking of the ``other risks'' factors.
    Wainwright and Kope (1999) explain the ``other risks'' factor 
category as including life history information so we believe this is 
the correct place for evaluating the life history information. 
Entanglement and other bycatch are commonly considered in the 
overutilization factor.
    Comment 23: The fishing gear types listed under the ``Commercial 
Fisheries'' section of the proposed rule for the shark fishery in 
Brazil are incorrect. The gear types should be listed as gillnets and 
trawl nets.
    Response: We corrected this error in the final rule.
    Comment 24: In Brazil and Nicaragua the species is protected, which 
means catches and landings are illegal. Harvest limits are not in place 
and enforcement is a challenge. The reviewer requested we revise the 
sentence in the ``The Inadequacy of Existing Regulatory Mechanisms'' 
section on the protections in Brazil.
    Response: We modified the sentence to clarify that the protections 
do not apply to harvest limits.
    Comment 25: Protections in the U.S. for P. pectinata will benefit 
P. perotteti, should it return to U.S. waters.
    Response: We agree because both species are susceptible to the same 
types of threats, and because we have conservations measures in place 
for P. pectinata throughout the U.S. historic range of P. perotteti.
    Comment 26: Predation is not a threat for the species.
    Response: We stated in the proposed rule that no evidence suggests 
that predation is a threat to the species.
    Comment 27: A citation quoted rostral tooth counts incorrectly for 
Wiley et al. (2008). Rostral tooth counts for P. pectinata should be 
22-29 per side.
    Response: We corrected the error in the final rule.

Public Comments

    Comment 28: Largetooth sawfish has not been documented within the 
boundaries of any National Park Service unit.
    Response: This information has been incorporated into our files.
    Comment 29: Pristis perotteti likely disappeared from the area of 
intervention of the Regional Commission on Fisheries which covers 
Gambia, Guinea, Guinea Bissau, Mauritania, Senegal, and Sierra Leone, 
20 years ago. Investigations conducted in 2005-2006 for the Sharks Sub-
Regional Action Plan, Fondation Internationale du Banc d'Arguin, 
Poverty Reduction Strategy Paper, and Noah Conservation, revealed that 
recent catches of P. perotteti in West Africa date back to 1970 in 
Gambia, 1984 in Senegal, 1993 in Guinea, 1995 in Mauritania, and 2000 
in Guinea-Bissau. The species was abundant in West Africa until 1970. 
Additionally, investigators in the seven countries (Gambia, Guinea, 
Guinea Bissau, Mauritania, Senegal, and Sierra Leone) made no 
observations of P. perotteti between 2004 and September of 2010.
    Response: The commenter's information supports the information in 
our files regarding the decline of the species in West Africa.
    Comment 30: Loss of habitat has contributed to the reduction in 
range for P. perotteti and habitat loss is affecting the largetooth 
sawfish throughout its range; consequently a proposed project (Harbour 
Pointe) in southwest Florida has the potential to remove three acres of 
mangrove habitat that may impact the P. perotteti and other fishes.
    Response: We acknowledge in our proposed rule that habitat loss is 
a threat to the species. The species is no longer found in U.S. waters 
so projects proposed in southwest Florida will not affect the species. 
However, NMFS will consult under section 7 of the ESA on federally 
authorized or funded projects in southwest Florida, if the effects of 
the proposed project may affect listed species (e.g. smalltooth sawfish 
and sea turtles) or their designated critical habitat, under our 
jurisdiction.
    Comment 31: Effects from urban and agricultural activities can 
directly impact critical habitat but may also have lasting effects on 
adjacent water resources (i.e., water chemistry, hydrology, salinity, 
and quality). The commenter also noted that nutrient pollution from 
urban and agricultural sources can threaten sawfish and other fish 
species. In particular, the commenter notes that dinoflagellates, for 
example Pfiesteria species, can cause haemorrhaging, sloughing of the 
skin tissue and deep ulcerations, and that fish with these symptoms 
have a higher probability of experiencing mortality. The commenter also 
suggests that once listed, the recovery plan for the species should 
follow the goals of the smalltooth sawfish recovery plan for reducing 
threatening algal blooms, improving water quality, and decreasing red 
tide events.
    Response: As stated in the proposed rule, we have no information 
indicating that diseases are a threat to the species. NMFS will 
consider all potential threats to the species if we develop a recovery 
plan for the species.
    Comment 32: Based on the best available scientific reports NMFS 
cannot conclude confidently that the largetooth sawfish has been 
extirpated from Florida.
    Response: The information in our files indicates the species has 
not been encountered in Florida since 1941.
    Comment 33: Listing of the species should move forward while 
concurrently considering the prudency of determinability of critical 
habitat as required under 16 U.S.C. 1533 (a)(3)(A)(i).
    Response: We are moving forward with the listing of P. perotteti 
but are not proposing to designate critical habitat for the species. 
Please see ``Critical Habitat'' section below for further explanation 
on our decision not to designate critical habitat.
    Comment 34: Two commenters stated that failing to designate 
critical habitat within the U.S. jurisdictional waters will deprive 
largetooth sawfish of its key protections and will inadequately 
conserve the species. The primary conservation benefit of critical 
habitat designation is that it provides a separate basis for federal 
agencies to consult under ESA section 7, 16 U.S.C. 1536(a)(2). 
Additionally, 50 CFR 424.12(b)(5) requires NMFS to consider historic 
geographical and ecological distributions of a species and that in the 
proposed rule to list P. perotteti we fail to do this, and that we 
elevate only one of the regulatory factors (50 CFR 424.12(b)(4)), 
``breeding'' above all others. The commenter further states

[[Page 40830]]

that we are ignoring 4 of the 5 factors we are required to consider for 
critical habitat designation and that it is inappropriate and illegal 
to do so. The commenter also stated that foraging is an essential 
biological function that cannot be discounted and requests we consider 
foraging behaviours as a trigger for designating critical habitat.
    Response: We disagree, determining not to designate critical 
habitat for P. perotteti will not deprive the species of its key 
protections. Section 3(5)(A)(ii) of the ESA states that ``critical 
habitat'' for threatened or endangered species means specific area(s) 
outside the geographical area occupied by the species at the time it is 
listed in accordance with the provisions of the Act, upon a 
determination of the Secretary that such area(s) are essential for the 
conservation of the species. Using the best available scientific and 
commercial data we cannot determine an area or areas essential to the 
conservation of P. perotteti within U.S. jurisdiction. We cannot 
designate critical habitat in foreign countries or in areas outside 
U.S. jurisdiction (50 CFR 424.12(h)). See the ``Critical Habitat'' 
section for further explanation on our determination not to designate 
critical habitat. Additionally, regulations at 50 CFR 424.12(b) only 
apply to identifying occupied areas. For unoccupied critical habitat 
the required finding is ``one or more specific areas are essential to 
the species conservation.''
    Comment 35: Conclusions about largetooth sawfish uses of U.S. 
waters for seasonal foraging and our determination that the species 
will most likely never breed in U.S. waters is suspect. The commenter 
also stated that our reliance on historic accounts of reports of 
encounters of only large animals (14 ft or larger) to establish no 
breeding historically occurred in U.S. waters is also speculative.
    Response: All encounter records of largetooth sawfish in U.S. 
waters were reported during the summer months and no juvenile 
largetooth sawfish have ever been documented from U.S. waters. 
Additionally, the commenter did not provide any data to support a 
breeding population of largetooth sawfish ever existed in the U.S.
    Comment 36: Two commenters stated that historically, fisherman were 
only inclined to report the capture of large fish and generally do not 
report small (juvenile) sawfish so that our determination that U.S. 
waters does not contain the essential biological features necessary for 
the species conservation is flawed.
    Response: The best available scientific and commercial data does 
not contain reports of small (juvenile) largetooth sawfish. Juvenile 
sawfish can range in size from 2-6 ft in total length, based on 
information taken from the smalltooth sawfish recovery plan. A fish 
that is 2-6 ft long is not considered by many people as small. Also, 
based on information in the National Sawfish Encounter Database, 
located at the Florida Museum of Natural History, reports of smaller 
sawfish species (not P. perotteti) have been reported historically, and 
currently by U.S. and foreign fishers. NMFS is not required to 
determine if essential biological features exist for the largetooth 
sawfish when designating unoccupied critical habitat. See ``Critical 
Habitat'' section for more details.
    Comment 37: A commenter stated that we discount the recovery aspect 
of a critical habitat designation and that the designation of 
unoccupied critical habitat is necessary for population growth or 
foraging behaviour.
    Response: Based on the best available scientific and commercial 
data, including the lack of evidence of a permanent, large population 
in U.S. waters, we have determined that the species does not require 
expansion into or re-establishment of use of U.S. habitats for 
recovery. See ``Critical Habitat'' section for more details.
    Comment 38: A commenter questioned our conclusion in the proposed 
rule that the protections offered to the endangered U.S. distinct 
population segment (DPS) of smalltooth sawfish may benefit the 
largetooth sawfish.
    Response: All sawfish species in the U.S. are threatened by similar 
factors (incidental and directed capture from commercial and 
recreational fishers, habitat loss, and trade) so conservation efforts 
directed toward the endangered U.S. DPS of smalltooth sawfish will also 
promote the conservation of the largetooth sawfish, should it return to 
U.S. waters.
    Comment 39: NMFS should include an analysis on any new and likely 
significant impacts to largetooth sawfish from the recent BP Deepwater 
Horizon oil spill, and acknowledge that ongoing and/or future oil and 
gas production in the Gulf of Mexico is a significant threat to the 
largetooth sawfish.
    Response: Studies are ongoing to determine the impacts from the BP 
Deepwater Horizon oil spill. No conclusive determinations have been 
made yet.

Summary of Changes From the Proposed Listing Rule

    Based on the comments received and our review of the proposed rule, 
we made the changes listed below.
    1. We corrected any errors identified by reviewers and commenters.
    2. We corrected the error in the ``Background'' section that stated 
we completed a status review of the species in 2000.

Species Determination

    We first considered whether P. perotteti met the definition of 
``species'' pursuant to section 3 of the ESA as described above. As 
stated in the taxonomy section above, after reviewing the best 
available scientific and commercial taxonomic data on the species, we 
determined that P. perotteti is a ``species'' and its range is the 
eastern and western Atlantic Ocean.

Extinction Risk

    We next considered the risk of extinction for P. perotteti to 
determine whether the species is threatened or endangered as defined 
above. No quantitative estimate of abundance for the species is known, 
so methods such as population viability analysis cannot be used to 
determine the risk of extinction for the species. Therefore, we must 
use a method to determine the risk of extinction using qualitative 
information.
    Wainwright and Kope (1999) developed methods to assess the risk of 
extinction for U.S. West Coast salmon. Using the definitions of 
endangered and threatened in the ESA, they considered a variety of 
information to assess extinction risks, including abundance, trends, 
productivity, variability, genetic integrity, and other risks. 
Wainwright and Kope (1999) further consider the risk to small 
populations based on potential genetic effects or random demographic 
effects. They also considered habitat capacity to answer questions 
about the carrying capacity and whether the carrying capacity can 
ensure the populations viability. In assessing the risk of extinction 
using trends, productivity, and variability, Wainwright and Kope (1999) 
indicate that short- and long-term trends in abundance are the primary 
indicators of risk. Wainwright and Kope (1999) also assessed the 
effects of genetic integrity (introduced genotypes, interactions with 
hatchery fish, or anthropogenic selection) as it relates to evaluating 
the risk of extinction. Loss of fitness and loss of diversity can occur 
from random genetic effects and increase the risk of extinction for a 
species. Wainwright and

[[Page 40831]]

Kope (1999) also evaluated other risks that are considered for 
salmonids (disease, predation, and changes in life history). These 
``other risks'' can affect the sustainability of a population. The last 
factor that Wainwright and Kope (1999) evaluated is the risks 
associated with recent events. Changes in harvest rates, anthropogenic 
changes in the environment (habitat degradation or enhancement), or 
natural events (floods, volcanic eruptions) can pose a risk for species 
but may not have been adequately considered by looking at the other 
effects above when there is a time-lag in seeing the effect of recent 
events.
    In addition to analyzing factors that may affect the risk of 
extinction for salmon, Wainwright and Kope (1999) developed a general 
quantitative evaluation method to assess both qualitative and 
quantitative evidence for the various risk factors. In this method, 
four of the major categories of extinction risk are scored. These four 
categories are: (1) Abundance, (2) trend, productivity, and variability 
(TPV), (3) genetic integrity, and (4) ``other risks''. The risk 
categories are scored on a scale from 1 to 5. A score of 1 represents a 
very low risk and factors (single or multiple factors) scored at this 
level are unlikely to contribute significantly to risk of extinction. A 
score of 2 represents a low risk and single factors are unlikely to 
contribute to extinction alone, but in combination with other factors 
may be a concern. Scores of 3 represent moderate risk. These factors 
contribute significantly to long-term risk of extinction, but do not 
alone constitute a danger of extinction in the near future. Score 
values of 4 represent increasing risk. This rating indicates the 
present risk is low or moderate, but is likely to increase to high risk 
in the future (reflects the ESA definition of threatened). Scores of 5 
represent the high risk rating. This factor indicates danger of 
extinction in the near future.
    Biologists at SERO used Wainwright and Kope's (1999) methods to 
assess extinction risk for P. perotteti. For the abundance category the 
following were important considerations. Small-population risks for the 
species were considered to assess the risk of extinction. As detailed 
above, museum records, negative scientific survey results in the U.S. 
and Lake Nicaragua, and anecdotal reports from fishers suggest the 
trend for the species is declining and population size is small. This 
species is also a K-selected animal which indicates they are usually 
successful at maintaining relatively small, persistent population sizes 
in relatively constant environments. We expect changes from random 
demographic effects are likely to be significant for the species since 
they are not able to respond rapidly to stochastic events. Information 
on the distribution of the species was also used as an indicator of 
abundance. The current distribution for the species is significantly 
reduced from its historic range. Thus, the existing population of P. 
perotteti does not adequately represent historic patterns of geographic 
distribution and this is considered a risk factor for the species. We 
could not determine the habitat capacity for the species since most of 
the habitat within the species range is located in foreign countries 
and we have poor data from those areas. Based on small population risks 
that could occur from demographic effects and the range constriction 
that has occurred, we assigned a rating of 5 (high-risk) for the 
abundance factor.
    For the TPV category we considered that the data for the species 
indicates a declining trend in abundance. A directed fishery existed 
for the species in Lake Nicaragua but no longer exists today. Reports 
of the species in Lake Nicaragua are rare. Lack of reports of the 
species occurrence throughout most of its range, including the U.S. and 
southern Brazil, also indicates the species abundance has declined from 
historic levels. Productivity rates are not known for the species but 
are expected to be declining. Variations in freshwater and marine 
environments within the species range are difficult to assess. Since 
reports of the species are rare throughout its range, we expect that 
productivity is low.
    Genetic integrity was not evaluated or scored because we do not 
have information on the loss of fitness and loss of genetic diversity 
for the species.
    Our evaluation of the ``other risks'' factor considered information 
about the species life history characteristics, in particular that the 
species has slow growth rates, late maturation, low fecundity, and 
population recovery potential is considered limited. Based on this 
information, we scored the other risks category as a 3.
    Using Wainwright and Kope (1999) methods to determine the risk of 
extinction for P. perotteti, we believe that abundance and distribution 
of P. perotteti is likely to continue to decline in the near future. 
Therefore, we have determined the current threats affecting the species 
will continue into the future and the species is currently in danger of 
extinction throughout all of its range.

Summary of Factors Affecting the Largetooth Sawfish

    In this section, we consider the five factors specified in section 
4(a)(1) of the ESA that we outlined in our listing determination 
process above.

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

    Coastal habitat loss throughout the species' historical range is a 
contributing factor to the species decline. Coastal habitats in the 
southern U. S. Gulf of Mexico region have experienced and continue to 
experience losses due to urbanization. Wetland losses in the Gulf of 
Mexico region of the U.S. averages annual net losses of 60,000 acres 
(242.8 km\2\) of coastal and freshwater habitats from 1998 to 2004 
(Stedman et al., 2008). Although wetland restoration activities are 
ongoing in this region of the U.S., the losses significantly outweigh 
the gains (Stedman et al., 2008). These losses have been attributed to 
commercial and residential development, port construction (dredging, 
blasting, and filling activities), construction of water control 
structures, modification to freshwater inflows (Rio Grande River in 
Texas), and gas and oil related activities. Riverine systems throughout 
the species' historical range have been altered or dammed. NOAA's 
Restoration Center is involved in ongoing coastal restoration 
activities throughout the Gulf of Mexico to restore coastal habitats. 
In spite of ongoing efforts to restore coastal habitats, coastal 
habitat losses will continue to occur.
    The status of habitats within the current international range of 
the species is not well known, but with continued development and human 
population growth, negative effects on habitat are likely. Ruiz-Luna et 
al. (2008) acknowledge that deforestation of mangrove forests in Mexico 
has occurred from logging practices, construction of harbors, tourism, 
and aquaculture activities. In addition to deforestation, Ruiz-Luna et 
al. (2008) document that changes in the hydrological systems occurred 
with opening of the artificial canal in Cuautla, in the state of 
Nayarit. Valiela et al. (2001) report the total area of mangrove 
habitats in Brazil has decreased significantly (from 9,653 to 5,174 
mi\2\ (25,000 to 13,400 km\2\) ) from 1983 to 1997, with similar trends 
in Guinnea-Bissau (1,838 to 959 mi\2\ (4760 to 2484 km\2\)) from 1953 
to 1995. Habitat modification, including mangrove forest removal, is 
also likely in northern Brazil (Compagno et al., 2006). The areas with 
the most rapid mangrove declines in the Americas included Venezuela, 
Mexico, Panama, the United States, and Brazil, while Senegal, Gambia, 
Sierra Leone, and

[[Page 40832]]

Guinnea-Bissau showed the largest declines in western Africa (Ruiz-Luna 
et al. 2008). World-wide mangrove habitat loss was estimated to be 35 
percent from 1980 to 2000 (Valiela et al., 2001). There are unconfirmed 
reports of dam building activities on the Rio San Juan (Nicaragua) 
system, which could affect the movements of largetooth sawfish in that 
region. These threats cannot be directly related to the decline of the 
largetooth sawfish, but habitat loss is a known factor contributing to 
the decline of many freshwater and marine species, including the 
endangered U.S. distinct population segment (DPS) of smalltooth 
sawfish.

Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

Commercial Fisheries

    Sawfishes are very vulnerable to most fishing gears, and were 
historically caught by gillnets, trawls, seines, and lines (Compagno et 
al., 2006). Most targeted catches of largetooth sawfish in Texas in the 
1930s were from recreational hook and line, but they were also caught 
incidentally by shrimp trawls and seines (Burgess et al., 2009). The 
Lake Nicaragua commercial fishery for largetooth sawfish consisted 
mostly of gillnet boats (Thorson, 1982a), and the commercial small 
coastal shark fishery in Brazil mainly utilizes gillnets and some trawl 
nets (Charvet-Almeida, 2002). Today the main threat to the largetooth 
sawfish is most likely from bycatch mortality, though sawfishes may be 
targeted opportunistically in some areas (Brazil) when the occasion 
arises. The current scarcity of sawfish may inhibit targeted fisheries 
that might occur in spite of international trade bans. However, if 
caught as bycatch they are most likely retained because of the value of 
their parts (e.g., the rostra, teeth, and fins). For example McDavitt's 
(2006) review of eBay sales of rostra estimate a total of 200 rostra 
per year are sold, with a value of more than US $25,000.

Recreational Fisheries

    Historically, recreational hook and line fishers targeted large 
elasmobranchs, including sawfishes, as trophies in Texas (Burgess et 
al., 2009). Elsewhere in the U.S., abundance was likely never high 
enough for recreational fishers to encounter this species, much less 
target it. Because of its current distribution, which is mostly in 
developing nations, the largetooth sawfish is unlikely to be 
encountered by recreational fishers, with possible rare exceptions of 
tourists in these areas. There is no current information on the use of 
sawfish species for subsistence fishing, though it was noted in Brazil 
that the meat was often sold in local fish markets, while the other 
products (rostra, fins) were sold internationally (Charvet-Almeida, 
2002).

Commercial Trade

    There is very little information available about the trade of 
sawfish products in general, especially the largetooth sawfish. 
Largetooth sawfish were listed under Appendix I of the Convention on 
International Trade in Endangered Species of Wild Fauna and Flora 
(CITES) in 2007, which prohibits the commercial trade of largetooth 
sawfish parts (see Regulatory Mechanisms section below). In 2006, eBay 
banned the sale of smalltooth sawfish on their online auction site; 
however, the ban was not established for all sawfish species. A survey 
by McDavitt and Charvet-Almeida (2004) of sawfish rostra on eBay 
(before the ban) found that large rostra command prices of over $1,000 
(US). An informal web search in November 2009 turned up several sawfish 
rostra for sale online to international buyers, some listed as 
``largetooth'', along with sites selling cockfighting spurs made from 
South American sawfish teeth. It is apparent that largetooth and 
smalltooth sawfishes are still landed and sold illegally in northern 
Brazil (Charvet-Almeida pers. comm., 2009). It was previously observed 
that sawfish rostra from small individuals were sold to tourists, while 
damaged or cut rostra were used for local folk medicine (McDavitt and 
Charvet-Almeida, 2004). The larger rostra were sold in international 
cockfighting markets, as the rostral teeth were used as spurs. The 
larger rostra were also purchased by Asian shark fin buyers, most 
likely for medicine or curios. The proportion of largetooth sawfish in 
these markets is unknown, though as many as 180 large Pristis spp. 
rostra were sold per year at a single market in northern Brazil in the 
early 2000s (McDavitt and Charvet-Almeida, 2004). With little 
enforcement of regional and international laws, the practice of landing 
sawfishes may continue in Brazil, though the extent of any 
international trade since the CITES listing is unknown. No confirmed 
reports of P. perotteti in aquaria exist currently. No seizures of 
largetooth sawfish in international trade have occurred since its CITES 
listing (Sharon Lynn (USFWS) pers. comm.).

Scientific Use

    The only published studies on life history and movements of the 
largetooth sawfish were conducted by Thorson in the 1970s and 1980s in 
Costa Rica and Nicaragua (Thorson, 1970; 1973; 1974; 1976a; 1976b; 
1978; 1982a; 1982b; 1987; Thorson et al., 1966a; 1966b). While many 
live largetooth sawfish were tagged by Thorson in this time period, it 
seems that most of the biological data were obtained from dead 
specimens that were purchased from commercial fishers. Most areas where 
the largetooth sawfish now occurs suffer from lack of biological 
sampling due to logistical difficulties and most likely low research 
funding. However, there is some scientific information being collected 
by researchers in Brazil, mostly from fish markets, where sawfishes are 
illegally landed and sold.

Disease and Predation

    No commercial or scientific data exists on diseases that may affect 
the largetooth sawfish and all information related to predation is 
listed above in the ``Largetooth Sawfish Natural History'' section. 
There is no evidence that unusual levels of disease or predation are a 
threat to the species.

The Inadequacy of Existing Regulatory Mechanisms

    Protective measures covering trade in the largetooth sawfish (P. 
perotteti) are implemented internationally under Appendix I of CITES, 
making non-domestic trade of parts or whole animals illegal. Additional 
Federal, state, and national laws in the United States, Nicaragua, and 
Brazil are designed to protect the species from harvest and sale 
locally and internationally. The Nicaraguan government officially 
banned commercial fishing for largetooth sawfish in Lake Nicaragua in 
2006. The Brazilian Environment Ministry listed P. perotteti in 
Appendix I of the ``Instrucao Normativa numero 05,'' meaning that the 
species is considered endangered and therefore cannot be landed or 
sold. Enforcement of these regulations in Brazil and Nicaragua is 
difficult due to the length of the coastline, extensive internal 
waterways, lack of enforcement personnel, and the need for more 
efficient tools. Sawfish abundance within other parts of their current 
range is depleted so targeted fisheries are unlikely; however, those 
caught as bycatch are probably kept due to their value. Thus, illegal 
foreign trade of sawfish parts may be ongoing (efforts may be reduced 
due to CITES), in Nicaragua and Brazil and elsewhere, in spite of the 
CITES listing and national laws, due to lack of enforcement and the 
high value of sawfish parts.

[[Page 40833]]

    The status of largetooth sawfish protection in western Africa is 
mostly unknown, though Guinnea-Bissau has created six official 
Protected Areas, which were established in 2005 (UNEP, 2008). Among 
these areas are several island chains and deltas with intertidal muddy 
sand banks and mangroves, which are ideal sawfish habitat. 
Nevertheless, existing regulations in this part of the world may be 
inadequate to protect and restore populations of largetooth sawfish.
    Though not currently found in U.S. waters, existing regulations and 
measures put in place to protect the smalltooth sawfish could also 
benefit the largetooth sawfish, should it return into the northern most 
extent of its historical range in North America. The U.S. DPS of 
smalltooth sawfish (P. pectinata) was listed as endangered on April 1, 
2003. Both the smalltooth and largetooth sawfish are susceptible to 
similar threats (e.g., bycatch in various fisheries and habitat loss) 
so protections for the smalltooth sawfish will benefit the largetooth 
sawfish. In response to the listing of the U.S. DPS of smalltooth 
sawfish, Texas implemented a ban on harvest of largetooth sawfish 
because of the possibility of misidentification. The trading of any 
largetooth sawfish parts is banned by state laws in both Florida and 
Louisiana. No directed research for largetooth sawfish is ongoing in 
Texas, but Texas Parks and Wildlife Department (TPWD) is conducting 
surveys which could capture sawfish in Texas waters. TPWD has ongoing 
standardized fisheries independent and dependent monitoring programs in 
all of the bay systems and in the Gulf of Mexico along the Texas 
coastline for the last 35 years. The surveys are conducted using 
seines, trawls, and gill nets annually. These are all gears that have 
been found to entangle sawfish. Only two sawfish have been recorded 
during the sampling and they were both smalltooth sawfish. 
Additionally, Florida (only in the Gulf of Mexico) and Texas do not 
allow gillnet fishing in state waters less than 9 miles (14.5 km) from 
shore, and Alabama restricts gillnet fishing within less than 3.5 miles 
(5.6 km) from shore.
    In summary, the high value of sawfish parts, weak enforcement, and 
lack of adequate protections for largetooth sawfish habitat mean that 
existing regulations are inadequate to protect the species from further 
declines.

Other Natural or Manmade Factors Affecting Its Continued Existence

    Largetooth sawfish have slow growth rates, late maturity, a long 
life span, and low fecundity rates. The largetooth sawfish is a more k-
selected type species, with an intrinsic rate of population increase 
below 1.0 (Simpfendorfer, 2000). K-selected animals are usually 
successful at maintaining relatively small, persistent population sizes 
in relatively constant environments. Conversely, they are not able to 
respond rapidly to additional sources of mortality, such as 
overexploitation and habitat degradation. Because of this, the risk of 
extinction remains high without effective conservation plans put into 
place.
    Red tide may also be a human amplified factor that could affect the 
species. Red tide is caused by an increase of toxic, naturally 
occurring microscopic blooms of plankton and is a coastal phenomenon 
which is caused by environmental conditions. Factors that are 
especially favorable include warm surface temperatures, high nutrient 
content, low salinity, and calm seas. Rain followed by sunny weather in 
the summer months is often associated with red tide blooms. We do not 
have specific information on red tide effects upon largetooth sawfish 
but we do have a report of a smalltooth sawfish that was found dead 
along the west coast of Florida during a red tide event (National 
Sawfish Encounter Database, 2009).

Summary

    After considering the 5 factors above from section 4(a)(1) of the 
ESA we determined that the species is in danger of extinction 
throughout all of its range.

Protective Efforts

    As a requirement of the ESA, current or future conservation efforts 
that have yet to be implemented or to show effectiveness to protect and 
recover largetooth sawfish must be evaluated under the PECE Policy (see 
above). This policy is designed to determine whether any conservation 
efforts that have been recently adopted or implemented or proposed, but 
not yet proven to be successful, will result in recovering the species 
to the point at which listing is not warranted or contribute to forming 
a basis for listing a species as threatened rather than endangered (68 
FR 15101; March 28, 2003). The PECE policy established two basic 
criteria to be met before an action could be considered to help improve 
the conservation status of a species: (1) The certainty that the 
conservation efforts will be implemented, and (2) the certainty that 
the efforts will be effective.
    Ongoing conservation efforts for the smalltooth sawfish may benefit 
the conservation of the largetooth sawfish if it returns to U.S. 
waters. The Smalltooth Sawfish Recovery Plan was finalized in 2009. The 
Smalltooth Sawfish Recovery Plan lays out specific guidelines for 
federal and state agencies to follow. Among the recovery plan's 
objectives are to minimize harm caused by human interactions and to 
protect and restore habitats. Since both species are susceptible to 
similar threats, implementation of the Smalltooth Sawfish Recovery Plan 
will provide conservation benefits for the largetooth sawfish if it 
returns to U.S. waters. Additionally, in 2010, NOAA funded coastal 
restoration activities in Texas and Louisiana using appropriations from 
The American Recovery and Reinvestment Act of 2009, which will restore 
habitats used by sawfish when completed. Both of these projects meet 
the criteria of the PECE for certainty of implementation and 
effectiveness. However, we have determined that these conservation 
efforts will not alter the extinction risk of the species.

Listing Determination

    NMFS is responsible for determining whether the largetooth sawfish 
(P. perotteti) is threatened or endangered under the ESA (16 U.S.C. 
1531 et seq.) Accordingly, we have followed a stepwise approach as 
outlined above in making this listing determination for the largetooth 
sawfish. We determined that P. perotteti is a valid species with a 
range in the eastern and western Atlantic Ocean. We then reviewed the 
status of the species and the threats to its status using the five-
factor analysis described above. Next, we assessed efforts being made 
to protect the species, determining if these efforts are adequate to 
mitigate existing threats.
    The largetooth sawfish (P. perotteti) faces ongoing threats from 
habitat alteration, bycatch, trade, and the inadequacy of existing 
regulatory mechanisms to address and reduce habitat alterations, 
bycatch, and trade. The species range has constricted so that it has 
not been seen in the U.S. since 1961. A similar range constriction is 
apparent at the southern extreme of the species' historical range. The 
species has not been reported from southern Brazil for almost a 
century. All of the threats attributed to the species decline are 
ongoing, except for the directed largetooth sawfish fishery in Lake 
Nicaragua. The Lake Nicaragua fishery collapsed presumably when the 
sawfish population collapsed. These ongoing threats exist throughout 
the species current range (Central and South America and West Africa) 
and existing regulatory mechanisms in place are insufficient to protect 
the species from further decline. No current or proposed

[[Page 40834]]

conservation activities will be enough to sufficiently improve the 
species status. Based on our review, therefore, we find that the 
species is in danger of extinction throughout all of its range and 
should be listed as endangered.

Effects of Listing

    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 and, where appropriate, critical habitat 
designations (16 U.S.C. 1538). Recognition of the species' plight 
through listing promotes conservation actions by Federal and state 
agencies, foreign entities, private groups, and individuals.

Identifying Section 7 Consultation Requirements

    Section 7(a)(2) of the ESA requires Federal agencies to consult 
with NMFS to ensure that activities authorized, funded, or carried out 
by those agencies are not likely to jeopardize the continued existence 
of the species or destroy or adversely modify critical habitat. We 
anticipate very few section 7 consultation requirements for Federal 
agencies given the species' current distribution and abundance.

Critical Habitat

    Critical habitat is defined in section 3 of the ESA (16 U.S.C. 
1532(5)) as: (1) The specific areas within the geographical area 
occupied by a species, at the time it is listed in accordance with the 
ESA, on 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 in accordance with the provisions of section 4 of the Act, 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. Regulations require that we shall 
designate critical habitat in areas outside the geographical area 
presently occupied by a species only when a designation limited to its 
present range would be inadequate to ensure the conservation of the 
species (50 CFR 424.12 (e)). We cannot designate critical habitat in 
foreign countries or other areas outside U.S. jurisdiction (50 CFR 
424.12 (h)).
    The best available scientific and commercial data, as discussed 
above, identifies the geographical area occupied by P. perotteti as 
Central and South America and West Africa. Since these areas are 
entirely outside U.S. jurisdiction, we cannot designate critical 
habitat in the geographical area occupied by the species. We can 
designate critical habitat in unoccupied areas in the U.S.
    Section 3(5)(C) of the ESA specifies that except in those 
circumstances determined by the Secretary, critical habitat shall not 
include the entire geographical area which can be occupied by the 
threatened or endangered species. We do not consider this section to 
stop or prevent the designation of unoccupied critical habitat because 
we are restricted from designating critical habitat outside U.S. 
jurisdiction.
    In evaluating the applicability of section 3 of the ESA (16 U.S.C. 
1532(5)) for unoccupied critical habitat, we must determine that the 
specific areas outside the geographical area occupied by the species at 
the time it is listed, are essential to the conservation of the 
species. Very little information is available on the specific areas 
occupied historically by P. perotteti in U.S. waters. Information in 
the status review document suggests the species made narrow seasonal 
migrations into U.S. waters. The majority of the records of the 
largetooth sawfish in U.S. waters are from three regions in Texas: 
Padre Island-Laguna Madre, Corpus Christi-Port Aransas, and Galveston-
Freeport. The highest concentration of the species was in the Galveston 
area. Additionally, we believe that based on historic rarity of the 
species in U.S. waters, and since the U.S. represented a very limited 
portion of the species historic range, re-establishment back into U.S. 
waters is not required for the species recovery. We have reviewed all 
of the best available scientific and commercial data on P. perotteti 
and its habitat and cannot identify a specific unoccupied area or areas 
in the U.S. that are essential to the conservation of the species.
    In summary, the best available scientific and commercial 
information on the species does not indicate that unoccupied area(s) 
are essential to the conservation of P. perotteti, therefore, no 
critical habitat designation is currently being proposed.

Take Prohibitions

    ESA section 9(a) and 16 U.S.C. 1538 (a)(1)(B) take prohibitions 
apply to all species listed as endangered. These include prohibitions 
against the import, export, use in foreign commerce, or ``take'' of the 
species. Take is defined as ``to harass, harm, pursue, hunt, shoot, 
wound, kill, trap, capture, or collect, or to attempt to engage in any 
such conduct.'' These prohibitions apply to all persons subject to the 
jurisdiction of the United States, including in the U.S. or on the high 
seas.

Identification of Those Activities That Would Constitute a Violation of 
Section 9 of the ESA

    On July 1, 1994, we and the USFWS published a series of policies 
regarding listings 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 FR34272). 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. 
We identify, to the extent known, specific activities that will not be 
considered likely to result in violation of ESA section 9, as well as 
activities that will be considered likely to result in violation. 
Activities that we believe could result in violation of section 9 
prohibitions against ``take'' of the largetooth sawfish include, but 
are not limited to, the following: (1) Importation, (2) exportation, 
(3) take any such species within the U.S. or the territorially seas of 
the U.S., (4) sale, (5) delivery that directly or indirectly affect 
endangered species, and (6) take any such species on the high seas. 
These prohibitions apply to all individuals, organizations, and 
agencies subject to U.S. jurisdiction.
    ESA sections 10(a)(1)(A) and 10(a)(1)(B) provide NMFS with 
authority to grant exceptions to the section 9 take 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. We have 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 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

[[Page 40835]]

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.

Policies on Peer Review

    On July 1, 1994, NMFS and USFWS published a series of policies 
regarding listings under the ESA, including a policy for peer review of 
scientific data (59 FR 34270; July 1, 1994), the Office of Management 
and Budget (2004) Bulletin on Peer Review. The intent of the peer 
review policies is to ensure that listings are based on the best 
scientific and commercial data available. We formally solicited the 
expert opinion of four appropriate and independent specialists 
regarding scientific or commercial data or assumptions related to the 
information considered for listing. We conclude that these experts' 
reviews satisfy the requirements for ``adequate [prior] peer review'' 
contained in the Bulletin (sec. II.2.) as well as the Services joint 
policy.

References

    A complete list of the references used in this final rule is 
available upon request (see ADDRESSES).

Classification

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), we have concluded that ESA listing actions are not subject to 
the environmental assessment requirements of the National Environmental 
Policy Act (NEPA) (See NOAA Administrative Order 216-6).

Executive Order 12866, Regulatory Flexibility Act and Paperwork 
Reduction Act

    As noted in the Conference Report on the 1982 amendments to the 
ESA, economic impacts cannot be considered when assessing the status of 
a species. Therefore, the economic analysis requirements of the 
Regulatory Flexibility Act are not applicable to the listing process. 
In addition, this final rule is exempt from review under Executive 
Order 12866. This final rule does not contain a collection-of-
information requirement for the purposes of the Paperwork Reduction 
Act.

Executive Order 13132, Federalism

    E.O. 13132 requires agencies to take into account any federalism 
impacts of regulations under development. It includes specific 
consultation directives for situations where a regulation will preempt 
state law, or impose substantial direct compliance costs on state and 
local governments (unless required by statue). Neither of those 
circumstances is applicable to this final listing determination.

International Relations

    We have conferred with the U.S. Department of State to ensure 
appropriate notice is given to foreign nations within the range of the 
species. We intend to continue engaging in informal and formal contacts 
with the U.S. State Department.

List of Subjects in 50 CFR Part 224

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


    Dated: July 6, 2011.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.
    For the 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 citation 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, the table in paragraph (a) is amended by adding an 
entry for ``Largetooth Sawfish'' at the end of the table to read as 
follows:


Sec.  224.101  Enumeration of endangered marine and threatened 
anadromous species.

* * * * *
    (a) * * *

----------------------------------------------------------------------------------------------------------------
                     Species \1\                                            Citation(s) for     Citation(s) for
-----------------------------------------------------    Where listed           listing        critical  habitat
           Common name              Scientific name                         determination(s)     designation(s)
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Largetooth Sawfish..............  Pristis perotteti.  Everywhere........  [Insert FEDERAL                     NA
                                                                           REGISTER
                                                                           citation], July
                                                                           12, 2011.
----------------------------------------------------------------------------------------------------------------
\1\ Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement,
  see 61 FR 4722, February 7, 1996), and evolutionarily significant units (ESUs) (for a policy statement, see 56
  FR 58612, November 20, 1991).


[[Page 40836]]

* * * * *
[FR Doc. 2011-17502 Filed 7-11-11; 8:45 am]
BILLING CODE 3510-22-P