[Federal Register Volume 74, Number 12 (Wednesday, January 21, 2009)]
[Notices]
[Pages 3566-3569]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-1118]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XM75


Endangered and Threatened Species; Recovery Plan

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

ACTION: Notice of availability.

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SUMMARY: The National Marine Fisheries Service (NMFS) announces the 
availability of the recovery plan for the U.S. Distinct Population 
Segment (DPS) of smalltooth sawfish (Pristis pectinata) as required by 
the Endangered Species Act of 1973 (ESA).

ADDRESSES: The final plan is provided on NMFS' Protected Resources 
Internet Web site at: http://www.nmfs.noaa.gov/pr/recovery/plans.htm.
    Requests for a copy of the recovery plan may be submitted to the 
Smalltooth Sawfish Plan Coordinator at: NMFS, Southeast Regional 
Office, Protected Resources Division, 263 13th Avenue South, St. 
Petersburg, Florida, 33701.

FOR FURTHER INFORMATION CONTACT:  Shelley Norton at (727) 824-5312, or 
by e-mail at <a href="/cdn-cgi/l/email-protection#abd8c3cec7c7ced285c5c4d9dfc4c5ebc5c4caca85ccc4dd"><span class="__cf_email__" data-cfemail="097a616c65656c702767667b7d66674967666868276e667f">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

Background

    Congress passed the ESA (16 U.S.C. 1531 et seq.) to protect species 
of plants and animals in danger of extinction. NMFS and the U.S. Fish 
and Wildlife Service (FWS) share responsibility for the administration 
of the ESA. NMFS is responsible for most endangered and threatened 
marine species, including the U.S. DPS of smalltooth sawfish (Pristis 
pectinata). Listed endangered or threatened species under NMFS 
jurisdiction are identified in 50 CFR 224.101(a) and 50 CFR 223.102, 
respectively. The List of Endangered and Threatened Species, which 
contains species under the jurisdiction of both agencies, is provided 
in 50 CFR 17.11(h). The U.S. DPS of smalltooth sawfish is listed as 
endangered.
    Section 4(f)(1) of the ESA requires that recovery plans be 
developed and implemented for the conservation and survival of 
endangered and threatened species, unless such plans would not promote 
the conservation of the species. A plan was prepared at the request of 
the Assistant Administrator for Fisheries to promote the recovery of 
smalltooth sawfish.

Summary of Comments Received

    Below we address the comments received pertaining to the Draft 
Smalltooth Sawfish Recovery Plan (Plan) published August 28, 2006. In 
response to our request for public comments, we received over 6,000 
written responses to the Plan. The majority of the responses expressed 
general support for the Plan. Five commenting agencies and 3 scientific 
peer reviewers provided more specific comments. Responses to specific 
comments are provided below.

Peer Review Comments

    Comment 1: A commenter suggested the use of circle hooks for 
recreational fishers as a means to reduce bycatch. Additionally, 
another commenter stated that studies on post-release mortality should 
be a higher priority.
    Response: Action 1.1.5 recommends investigating fishing devices 
such as circle hooks that may reduce the capture, injury, and mortality 
of smalltooth sawfish in recreational fisheries. NMFS agrees with the 
commenter who stated we should make studies on post-release mortality a 
higher priority. NMFS changed the priority numbers of Action 1.1.3 from 
a priority 2 to a priority 1 because new data on related species 
indicates the use of circle hooks may decrease post-release mortality.
    Comment 2: A commenter noted the need to develop systematic 
sampling programs. Additionally, a commenter stated NMFS should plan 
for long-term monitoring and tagging of animals.
    Response: Action Items 3.2 and 3.4 identify the need for surveys 
and NMFS is currently developing the specific sampling design programs 
to accomplish our recovery goals. The Plan also plans for long-term 
monitoring (Action 3.2.4) and tagging (Action 3.1.2) of animals to 
monitor the recovery process.
    Comment 3: A commenter suggested allowing additional permits for 
non-directed research to allow tagging of and release of captured 
animals.
    Response: Researchers working within the range of smalltooth 
sawfish and with gears that may incidentally capture the species can 
apply for an ESA permit to tag smalltooth sawfish. Researchers who are 
required to obtain an ESA permit for work on other federally endangered 
or threatened species may request authorization from NMFS to tag 
incidentally caught smalltooth sawfish.
    Comment 4: A commenter stated that NMFS needs to have a long-term 
commitment to surveying and tagging smalltooth sawfish.
    Response: The Plan looks forward 100 years and includes actions and 
budgeting requirements for the implementation of all Action Items, 
including surveying and tagging of smalltooth sawfish.
    Comment 5: A commenter questioned the ability to detect increases 
in catch per unit effort (CPUE) data for the abundance criterion for 
juveniles in Objective 3.
    Response: NMFS is currently developing randomized, stratified 
survey methodologies that will detect

[[Page 3567]]

changes in CPUE throughout the species range. Additionally, NMFS may 
need to continue to utilize recreational and commercial capture or 
sighting records to determine changes or trends in relative abundance.
    Comment 6: A commenter requested information regarding gillnet 
prohibitions by state.
    Response: Appendix C of the Plan summarizes the existing state laws 
or regulations related to gillnets within the species' historic range.
    Comment 7: A commenter stated that the Plan did not consistently 
note the difference in population increase rates. They were noted as a 
percent or described as a proportion in the Plan.
    Response: NMFS has modified the Plan to use percent throughout.
    Comment 8: A commenter asked if the Everglades National Park creel 
data (Figure 7) accounted for fishing effort.
    Response: Yes, the results presented do take into account fishing 
effort. Catch per Unit Effort was calculated using the number of 
fishers.
    Comment 9: A commenter asked if sawfish were always taken as 
bycatch in nearshore fisheries.
    Response: A review of historical fishing records and literature on 
the species indicates no directed fisheries existed for the species but 
limited directed take occurred for aquaria and trade of sawfish parts, 
thus historical sawfish captures were predominantly as bycatch in 
fisheries targeting other species.
    Comment 10: A commenter stated the Plan does not provide adequate 
discussion on how to address a declining or stable population.
    Response: The Plan identifies several actions (1.1.1, 1.1.18, etc.) 
that address monitoring and minimization of existing threats. If 
population level monitoring indicates a decrease or leveling off of the 
population below target levels, NMFS will identify the cause and 
develop an action or actions to address the problem. NMFS periodically 
reviews the effectiveness of the Plan and the status of the species and 
makes adjustments to the Plan if necessary (including additional 
mitigation measures, etc.).
    Comment 11: A commenter stated that studying the connectivity 
between the U.S. population and populations in Mexico, Cuba, and the 
Bahamas should be a higher priority because the species is not listed 
in those countries.
    Response: Action 3.1 identifies the need to investigate the 
relationship between the U.S. population of sawfish and those in 
neighboring countries; however, NMFS ranked threats such as bycatch and 
habitat as being higher priority actions. The listed entity and the 
subject of the Plan is the U.S. DPS of smalltooth sawfish. While 
additional information on nearby populations is of scientific interest 
and value, NMFS believes, based on currently available information, we 
should focus our efforts on the recovery of the U.S. DPS because we 
believe the U.S. population is distinct from all other populations. We 
believe actions affecting smalltooth populations outside of the United 
States do not affect the U.S. smalltooth sawfish's recovery efforts.
    Comment 12: A commenter expressed concern regarding the priority 
levels given the timing of various research activities.
    Response: NMFS addressed this comment by re-evaluating the research 
activities in the Plan. The research priorities numbers were reassessed 
by the team and were modified to match the timing of the action. 
Actions that must occur before others can take place were given higher 
priority based on timing. The action relating to (1) connectivity of 
populations (Action 3.1) was not a high priority because focus needs to 
be on the US DPS, so it was given a priority level of 3; (2) post-
release mortality (Action 1.1.3) was upgraded to priority level 1; and 
(3) collection of reproductive data (Action 3.3.1) was not critical for 
the development of the PVA because reproductive data on a comparable 
species, the largetooth sawfish (P. perotteti), was used, so its 
priority level was not changed.
    Comment 13: A commenter stated that the lack of reproductive 
biology information on the species is a problem, especially when the 
PVA is developed.
    Response: As discussed above, existing reproductive data from 
largetooth sawfish (P. perotteti) can be and were used by NMFS 
internally to develop a preliminary PVA model for the smalltooth 
sawfish. As species-specific data become available, we can update the 
PVA model and examine its reliability with continued use of congener 
data.
    Comment 14: A commenter stated that NMFS should determine how many 
smalltooth sawfish fins are sold in the shark fin trade. The commenter 
also stated that the shark fin trade is increasing.
    Response: The Plan identifies the fin trade as a threat to sawfish 
but available fin trade data does not indicate that finning is a major 
threat to the recovery of the species. Action 1.2 in the Plan 
identifies the need to monitor trade of sawfish parts to ensure the 
long-term viability of the species.
    Comment 15: The Department of the Navy (DoN) has requested 
exemptions for maintenance dredging activities.
    Response: Exemptions are outside of the scope of the authority of 
recovery planning documents. NMFS will address the effects of future 
proposed DoN actions on listed species during the section 7 
consultation process.
    Comment 16: DoN stated they may potentially carry more of the 
burden of recovering the smalltooth sawfish.
    Response: All Federal agencies have express responsibilities under 
section 7 of the ESA. Section 7 (a)(1) states ``all other federal 
agencies shall, in consultation with and with the assistance of the 
Secretary, utilize their authorities in furtherance of the purposes of 
the Act by carrying out programs for the conservation of endangered and 
threatened species....'' Additionally, section 7 (a)(2) of the ESA 
states ``federal agencies shall, in consultation with and with the 
assistance of the Secretary, insure that any action authorized, funded, 
or carried out by such agency is not likely to jeopardize the continued 
existence of any endangered or threatened species or result in the 
destruction or adverse modification of habitat of such species which is 
determined by the Secretary....'' The DoN owns or manages some of the 
remaining known high quality sawfish habitat located within the current 
range of the species (Florida). However, the small percentage of high 
quality habitat under the DoN's jurisdiction suggests they should not 
be unduly affected by the majority of the recovery efforts.
    Comment 17: The DoN expressed concern in regards to Recovery 
Objective <greek-i>2. This states the downlisting criteria of 
maintaining and protecting 95 percent of mangrove shoreline habitat at 
the time of listing (2003). The DoN stated that the objective seems 
ambitious and unachievable and stated that NMFS should fund mangrove 
studies to determine the extent of the loss of mangrove habitats that 
existed in 1940 and 2003 before determining recovery levels. 
Additionally, the DoN asked how NMFS would know the mangrove recovery 
criteria have been met.
    Response: Recovery plan levels are consistent with Federal and 
state regulations that protect mangrove habitats and require permits 
and mitigation for unavoidable impacts. Mangrove habitats are currently 
protected in the state of Florida under the Mangrove Trimming and 
Preservation Act, as amended in 1996. Maintaining 95 percent of 
remaining mangrove habitat should be achievable

[[Page 3568]]

with the existing laws and regulations in place. Based on the existing 
data on juvenile smalltooth sawfish habitat usage patterns, mangrove 
habitats are essential for juvenile smalltooth sawfish. NMFS funded a 
mangrove study in 2008 to determine the changes in mangrove abundance 
within the range of juvenile smalltooth sawfish to determine the extent 
of habitat modification that occurred since the 1940s and since the 
time of listing. NMFS will modify mangrove related recovery criteria 
based on the results of the study as appropriate.
    Comment 18: The DoN noted the focus of the Plan's recovery efforts 
are in south Florida.
    Response: South Florida was historically the center of abundance 
for the species and is currently the center of its abundance and the 
only documented location of a reproducing population. Recovery actions 
are also identified for areas outside of Florida (North Carolina to 
Texas). As the population expands and recovers areas outside of south 
Florida will become increasingly important for the species.
    Comment 19: The DoN expressed concern over whether freshwater flow 
regimes to nursery areas have been established.
    Response: The Recovery Plan was written based on the ``best 
available science'' and since research has shown that estuarine areas 
with freshwater sources are important to juvenile smalltooth sawfish, 
it is considered an important factor. Data on specific freshwater flow 
requirements are lacking for the species. If and when improved data on 
the salinity requirements of the species are known, they will be 
incorporated into the Plan.
    Comment 20: The DoN expressed concern that the abundance of sawfish 
was not quantified at the time of listing.
    Response: The Plan contains recovery criteria based on the use of 
relative abundance because the species is endangered, highly mobile, 
and quantifying absolute abundance is not currently possible. The 
current population is estimated to consist of a few thousand animals 
(Simpfendorfer, 2004). Absolute abundance cannot be determined for the 
species but relative abundance may be obtained by using various data 
sets as indices of abundance. The ENP creel and guide survey provides 
monitoring back to 1989 prior to the date of listing. Other surveys 
conducted by federal and state agencies began prior to listing and are 
ongoing (Florida Independent Monitoring Program, etc.). These data sets 
will be used to document relative abundance through time. More baseline 
information is still required and increased survey and monitoring 
efforts are planned for the near future. Monitoring data (captures and 
or sightings) should provide us with a measure of increase or decrease 
in relative abundance that can be used to estimate the overall 
population size. Given the rate of population increase or decrease, 
these surveys will provide a reasonable proxy for the population 
estimate at the time of listing. Thus, the need to complete surveys 
prior to adopting the recovery objective is not required.
    Comment 21: The DoN stated the lower Florida Keys do not provide 
good habitat for juvenile sawfish because the salinity of the waters 
surrounding the area are often hyposaline or hypersaline, not 
euryhaline.
    Response: NMFS has limited and highly variable documented 
encounters of juvenile smalltooth sawfish in the Florida Keys (See 
Poulakis and Seitz [2004] and Simpfendorfer and Wiley [2005]). At this 
time, we cannot identify specific habitat features important to 
juveniles in the Florida Keys but we do know that juveniles are 
occasionally sighted or captured in the area.
    Comment 22: The DoN stated that riverine mangroves are functionally 
different from those found in the lower Florida Keys systems and are 
less important to sawfish. The DoN also stated that NMFS should 
consider creating a new recovery region for the lower Keys and classify 
the various types of mangrove habitats prior to designating critical 
habitat.
    Response: Current data on habitat usage by juvenile smalltooth 
sawfish indicate they primarily utilize habitats that contain the 
following features: shallow and euryhaline waters and red mangroves. 
These habitats are not solely located within rivers so we do not agree 
that riverine mangroves are more important to juvenile smalltooth 
sawfish than non-riverine mangroves. The delineation of the recovery 
regions is based primarily on biogeographical boundaries. Based on the 
encounter data and the similarity between habitats located within the 
upper and lower Florida Keys, NMFS did not consider changing the 
boundaries of Recovery Region I.
    Comment 23: A commenter suggested that NMFS establish optimum water 
quality and habitat targets for the Caloosahatchee River.
    Response: The Plan includes recovery actions to identify and 
maintain or restore appropriate water quality, including the timing of 
freshwater releases, for juvenile sawfish (Action 2.2 and associated 
sub-actions). This includes the Caloosahatchee River. At this time 
there is insufficient data available on appropriate water quality 
levels in areas utilized by juvenile sawfish; however, research 
currently underway is collecting data in the Caloosahatchee River to 
address this need.
    Comment 24: A commenter recommended NMFS clearly define the 
specific importance of the Caloosahatchee River.
    Response: The Caloosahatchee River is currently an important area 
for smalltooth sawfish. The Caloosahatchee River falls within Recovery 
Region G, one of six where there is a requirement for maintaining 
nursery habitats. The plan recognizes the need to recover this species 
over a broad geographic range, of which the Caloosahatchee River is one 
component.
    Comment 25: A commenter stated that recovery actions should have 
information about the importance of specific areas. This information is 
requested to aid in local government planning processes.
    Response: NMFS has established ongoing research in specific areas, 
including in the Caloosahatchee River, which will lead to detailed 
information for management at the local level; however, specific 
detailed discussions within the Plan are beyond the scope of the Plan 
and were therefore not included. NMFS will work with local governments 
to provide guidance on local management strategies for smalltooth 
sawfish as the Plan is implemented.
    Comment 26: A commenter recommended specific discussion of the 
effects on smalltooth sawfish from Lake Okeechobee water releases.
    Response: Action 2.2 addresses the need to monitor and manage 
natural and freshwater flow regimes for the species. Freshwater 
releases from Lake Okeechobee and their effects on smalltooth sawfish 
are specifically identified in the Plan. Specific cause and effect 
information from water releases are unknown at this time.
    Comment 27: A commenter recommended NMFS designate critical habitat 
for the smalltooth sawfish.
    Response: NMFS proposed critical habitat on November 20, 2008 (73 
FR 70290).
    Comment 28: A commenter suggested NMFS support the funding of 
smalltooth sawfish conservation efforts.
    Response: The Plan lays out an implementation and cost schedule 
that will permit NMFS to set priorities for funding and regulatory 
action and provide for recovery of the species.

[[Page 3569]]

Actual implementation of actions in the Plan will depend on available 
funding.
    Comment 29: A commenter recommended the formation of a smalltooth 
sawfish implementation team.
    Response: NMFS has formed a Smalltooth Sawfish Implementation Team. 
More information on this team can be found at: http://www.flmnh.ufl.edu/fish/Gallery/Descript/STSawfish/STSawfish.html.
    Comment 30: A commenter suggested that NMFS require new gear and 
equipment for release of smalltooth sawfish.
    Response: NMFS developed Safe Handling and Release Guidelines for 
the species (Appendix B), and made revisions to the plan to recommend 
use of circle hooks to reduce hooking injury and mortality. Training in 
safe handling and release methods for captured smalltooth sawfish is 
required in some of NMFS federally-managed fisheries. Additionally, 
specific types of release equipment are required to be on-board boats 
in specific federally-managed fisheries.
    Comment 31: A commenter stated that future developments should not 
destroy mangroves.
    Response: As stated in the response to comment <greek-i>17, 
federal, state, and local laws protect mangroves and may be applicable 
to development projects on a case-by-case basis. The Plan establishes 
objectives for protection and restoration of mangroves but the Plan 
itself cannot impose requirements on future development projects.
    Comment 32: One commenter recommended that eBay should not be able 
to sell any parts of sawfish.
    Response: Smalltooth sawfish are protected under Appendix 1 of the 
Convention on International Trade in Endangered Species of Wild Fauna 
and Flora. Trade of parts is prohibited.
    Comment 33: Numerous (6,000) commenters expressed general support 
for the recovery plan.

Summary of Changes

    Below we describe the changes made to the final Plan that were not 
discussed in the comment section.
    Change 1: The Recovery Criteria for nursery habitat was clarified 
to include the protection of non-mangrove habitats. Historic and 
current juvenile encounters indicate they are located in areas outside 
the range of mangroves. We believe we will need nursery areas outside 
of the range of mangroves to recover the species, but at this time 
cannot determine the specific features utilized by juveniles. Once we 
identify the habitat features utilized by juveniles in non-mangrove 
habitats, we need to protect and/or restore these areas for recovery of 
the species.
    Change 2: Section II, Recovery Strategy was rearranged to 
streamline the document and remove redundancy.
    Change 3: Figures 8a, 8b, and 8c were renamed as ``Protected 
Areas'' because they include upland areas as well as marine areas.
    Change 4: Citations and Recovery Actions were updated to reflect 
new publication dates or accomplishment of some actions.
    Change 5: Latitude and longitude locations were placed in the 
Recovery Regions Map (Figure 9) to clarify where each recovery region 
begins and ends.
    Change 6: NMFS made several changes to the Implementation Schedule. 
We provided additional comments in the ``Comments'' section of the 
table to note ongoing research. Some action start dates were delayed 
based on expected budget constraints. Additionally, some of the 
priority numbers were raised or lowered based on comments from the 
public. The following Actions were modified or added:
    <bullet> Action 1.1.3 was changed from a priority 2 to a priority 
1.
    <bullet> Action 1.1.7 was changed from a priority 2 to a priority 
3.
    <bullet> Action 1.1.17 start date was changed to FY08.
    <bullet> Action 1.5.1 was given a priority of 3.
    <bullet> Action 2.1.3 start date was changed to FY09.
    <bullet> Action 2.1.6 was changed from a priority 2 to a priority 
1.
    <bullet> Action 2.1.8 was changed to clarify the function of the 
area.
    <bullet> Action 2.1.10 start date was moved to FY08.
    <bullet> Action 2.1.11 was clarified to include nursery areas only 
within Florida because Florida is believed to be the center of the 
population.
    <bullet> Action 2.2.1 was changed from a priority 2 to a priority 1 
and start year was changed to FY08.
    <bullet> Action 2.2.2 was changed from a priority 2 to a priority 
1.
    <bullet> Action 2.3.3 start date was changed to FY08
    <bullet> Action 3.1.3 start date was changed to FY08.
    <bullet> Action 3.3.4 was changed from a priority 1 to a priority 
3.
    <bullet> Action 3.3.5 was changed from a priority 2 to a priority 
3.

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

    Dated: January 13, 2009.
Angela Somma,
Chief, Endangered Species Division, National Marine Fisheries Service.
[FR Doc. E9-1118 Filed 1-16-09; 8:45 am]
BILLING CODE 3510-22-S


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