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###### Department of Commerce

###### National Oceanic and Atmospheric Administration

          - 50 CFR Part 697
          - [Docket No. 000412106-0262-02; I.D.  032200A]
          - RIN 0648-AO02

# AGENCY:

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

# ACTION:

Proposed rule; request for comments.

# SUMMARY:

NMFS proposes to prohibit fishing for horseshoe crabs and limit possession of them in an area in the exclusive economic zone (EEZ) encompassing a 30-nautical mile (nm) radius (in a shape roughly equivalent to a rectangle) seaward from the midpoint of the territorial sea line at the mouth of Delaware Bay.  The intent of this proposed rule is to provide protection for the Atlantic coast stock of horseshoe crab, and to promote the effectiveness of the Atlantic States Marine Fisheries Commission’s (Commission) Interstate Fishery Management Plan (ISFMP) for horseshoe crab.

# DATES:

Written comments must be received on or before October 31, 2000.

# ADDRESSES:

Comments on the proposed rule should be sent to, and copies of an Environmental Assessment/Regulatory Impact Review/Initial Regulatory Flexibility Analysis (EA/RIR/IRFA), are available from, Richard H. Schaefer, Chief, Staff Office for Intergovernmental and Recreational Fisheries, National Marine Fisheries Service, 8484 Georgia Avenue, Suite 425, Silver Spring, MD 20910.  Comments regarding the collection-of-information requirement contained in this proposed rule should be sent to Richard H. Schaefer and to the Office of Information and Regulatory Affairs attention: NOAA Desk Officer, Office of Management and Budget, Washington D.C. 20503.

      ( print page 61136)    

# FOR FURTHER INFORMATION CONTACT:

Paul Perra, 301-427-2014.

# SUPPLEMENTARY INFORMATION:

## Proposed Action 

                    NMFS is proposing Federal horseshoe crab conservation measures in the EEZ under the authority of section 803(b) of the Atlantic Coastal Fisheries Cooperative Management Act (ACFCMA), 16 U.S.C. 5101*et seq.*, which states that, in the absence of an approved and implemented Fishery Management Plan under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) (16 U.S.C. 1801*et seq.*) and after consultation with the appropriate Fishery Management Council(s), the Secretary of Commerce may implement regulations to govern fishing in the EEZ, i.e., from 3 to 200 nm offshore.  These regulations must be (1) compatible with the effective implementation of an ISFMP developed by the Commission, and (2) consistent with the national standards set forth in section 301 of the Magnuson-Stevens Act.                

The proposed rule would prohibit fishing for and limit the possession of horseshoe crabs in an area in the EEZ encompassing a 30-nm radius (in a shape roughly equivalent to a rectangle) seaward from the midpoint of the territorial sea line at the mouth of Delaware Bay.  The proposed rule would also allow whelk fishing vessels to possess horseshoe crabs as bait on board in the closed area as long as the vessels do not have commercial fishing gear on board aside from whelk fishing traps.  Other commercial gears (e.g., trawls, dredges, gill nets) would be prohibited on vessels in the closed area with horseshoe crabs on board.  As a consequence of not allowing other commercial gears on the whelk vessels in the closed area, whelk vessels would not be able to fish for species other than whelks in the closed area.  NMFS does not know the number of whelk vessels that may fish in the closed area or if they conduct other fishing activities in conjunction with their whelk fishing trips, but assumes from discussions with the ASMFC Horseshoe Crab Plan Monitoring Team that combined whelk and other species trips do not take place or are minimal.  The proposed rule would also require fishermen to return to the water all horseshoe crabs caught in the closed area incidental to any fishing operations, including whelk fishing.

The proposed closed area in the EEZ off Delaware Bay would be bounded as follows: (1) On the north by a straight line connecting points 39°14.6'N. lat., 74°30.9'W. long. (3 nm off of Peck Beach, New Jersey) and 39°14.6'N lat., 74°22.5'W. long.; (2)  On the east by a straight line connecting points 39°14.6'N. lat., 74°22.5'W. long. and 38°22.0'N. lat., 74°22.5'W. long.; (3) On the south side by a straight line connecting points 38°22.0'N. lat., 74°22.5'W. long. and 38°22.0'N. lat., 75°00.4'W. long. (3 nm off of Ocean City, MD); and (4) On the west by state waters.

## The Horseshoe Crab Fishery 

Horseshoe crabs are used as bait in American eel, whelk, and catfish fisheries, and are utilized by the biomedical industry.  Also, horseshoe crabs play an important ecological role because they are a food source for loggerhead sea turtles, and their eggs are an important food source for migratory shorebirds.  They have been directly harvested by hand and by various gears including gill nets, traps, pound nets, otter trawls, and seines.  There is no evidence that a recreational fishery ever developed for horseshoe crab.  While no complete coastwide assessment exists for horseshoe crabs, some mid-Atlantic surveys show several cases of localized horseshoe crab population declines that are of concern.

Estimated total landings of horseshoe crabs for bait from 1993 to 1997 increased from 1,906,059 lb (864.6 metric tons) to 6,146,487 lb (2788 metric tons).  These numbers are probably an underestimation of landings for these years because all horseshoe crab landings have not been reported due to a lack of reporting requirements in some states.  Improvements in the collection of landings data in recent years could account for some of the increase in landings.  However, estimates of landings in Delaware, Maryland, New Jersey, New York, and Rhode Island indicate a rapid growth in the fishery due primarily to the increased use of horseshoe crab as bait in the American eel, whelk, and catfish fisheries, and a shift in fishing pressure from declining traditional fisheries to the horseshoe crab fishery.  The current estimate for total Atlantic coast horseshoe crab bait landings for 1998, based on a 1998/99 NMFS/Commission  Horseshoe Crab Technical Committee harvest survey, is 8,995,700 lb (4080.4 metric tons).

## Addendum 1 to the ISFMP for Horseshoe Crabs

Historically, horseshoe crabs were managed by individual states until 1998 when the Commission adopted an ISFMP for horseshoe crab in response to concerns of possible localized declines in the Atlantic Coast horseshoe crab stock.  The Commission approved and implemented Addendum 1 to the Commission’s ISFMP for horseshoe crab in February 2000.  Addendum 1's intent is to protect and maintain horseshoe crab spawning stock at levels that can sustain fisheries and that will provide an abundance of horseshoe crab eggs as a food source for migratory shorebirds.  Addendum 1 mandates that all Atlantic coastal states implement their portion of a Commission quota system for the bait harvest of horseshoe crabs and implement a stock and fishery monitoring program as established by the Commission.  In addition, Addendum 1 requests that NMFS prohibit the transfer of horseshoe crabs in Federal waters, and establish an offshore horseshoe crab sanctuary in Federal waters within a 30-nautical mile radius off the mouth of the Delaware Bay.

To support the Commission's horseshoe crab management efforts under Addendum 1, NMFS published an Advance Notice of Proposed Rulemaking (ANPR)(65 FR 25698, May 3, 2000), to ask the public to consider the establishment of an offshore horseshoe crab closed area in the EEZ encompassing a 30-nm radius off the mouth of the Delaware Bay.  Because of the difficulty in enforcing a semi-circular closed area, NMFS proposes establishing a closed area in Federal waters that would be roughly equivalent in area to a semi-circle with a 30-nm radius, but roughly in the shape of a rectangle.  The comment period closed on June 2, 2000.  Public response was overwhelming for proceeding with a proposed rule to implement the closed area.  Two-hundred-eighty-one comments were received in favor of continuing the rulemaking process, and one was against.  Thirteen conservation organizations, whose combined membership is estimated at over one million people, wrote in support of the closure.  The States of Delaware, Maryland, and New Jersey also sent in letters supporting the closure.  The one letter opposing the closure was written on behalf of two Virginia conch processing companies.  It stated that a closed area in addition to the other measures in the Commission’s ISFMP for horseshoe crabs is not scientifically justified.  The commenter felt that the closed area will force the harvest of horseshoe crabs from more offshore areas to more nearshore areas where female horseshoe crabs tend to be more prominent, which would be detrimental to the protection of the stock.

                    NMFS feels the closed area is a risk-averse (i.e., minimizes the risk to the horseshoe crab resource) measure that is based on the best available scientific                           ( print page 61137)                        information and designed to protect the horseshoe crabs in the Delaware Bay area.  Furthermore, the closed area, in conjunction with current state laws including the Atlantic coast states’ implementation of their quotas in Addendum 1, is part of a comprehensive management program that will control fishing effort on horseshoe crabs in nearshore areas and the EEZ off Delaware Bay.  Addendum 1 is adequate to protect horseshoe crabs because it will reduce fishing effort on both male and female horseshoe crabs by protecting them when they are concentrated in the closed area and by reducing state quotas.                

## The Need for a Closed Area Off Delaware Bay

Under Addendum 1, Atlantic coast states have recently implemented measures to control the harvest of horseshoe crabs as bait.  As a result, more fishing for horseshoe crabs is taking place in the EEZ, particularly in the mid-Atlantic area.  Therefore, efforts to support the Commission’s management plan and provide adequate conservation measures for horseshoe crabs by implementing compatible management measures in the EEZ are a very important part of the coastwide management program for horseshoe crab.

Addendum 1 manages horseshoe crabs as a coastwide stock from Maine through Florida, but pays particular attention to protecting the localized Delaware Bay population of horseshoe crabs by recommending a closed area to horseshoe crab fishing in the EEZ encompassing a 30-nm radius off the mouth of Delaware Bay.  Since there are no Federal laws restricting harvest for horseshoe crab in EEZ waters adjoining Delaware Bay, horseshoe crabs in the Delaware Bay area can be legally caught in the EEZ, and landed in other states that have less strict conservation measures for horseshoe crabs than the Delaware Bay states.  Under current state laws, all Atlantic coast states monitor and manage fishing for horseshoe crabs in state waters.  The states of New Jersey, Delaware, and Maryland have implemented especially strong conservation measures to protect horseshoe crabs in the Delaware Bay area, such as restricting the types of gear used, number of vessels that can harvest horseshoe crabs, and the amounts of horseshoe crabs that can be harvested from their waters.  While some fishing may be allowed in state waters near the mouth of Delaware Bay, it is very closely controlled by state regulations.  However, adjoining EEZ waters have no Federal restrictions on horseshoe crab harvest.

This special concern for horseshoe crabs in the Delaware Bay area arises because the Delaware Bay area is the epicenter of abundance for the Atlantic coast horseshoe crab stock and concentrated fishing effort in the EEZ near the mouth of Delaware Bay could deplete the horseshoe crab population in the Delaware Bay area.  Maintaining the abundance of horseshoe crabs in the Delaware Bay is important because migratory shorebirds stop in the Delaware Bay area where they depend on horseshoe crab eggs as an important food source at a critical time during their migrations.  Also, the Delaware Bay area supports horseshoe crab fisheries that harvest horseshoe crabs for whelk and eel bait, and for medical use.  The increased landings of horseshoe crabs from the EEZ has caused concern for the ability of the mid-Atlantic horseshoe crab population to continue to provide enough eggs for migratory shorebird needs as well as maintaining a sustainable fisheries over the long term.  The proposed closed area will give added protection to the localized population of horseshoe crabs that tend to concentrate near the mouth of the Delaware Bay.  Horseshoe crabs have been found as far as 35 nm from shore.  They tend to concentrate nearshore in the spring and move further offshore into deeper water in the fall and winter.  The proposed closed area is known to have high concentrations of horseshoe crabs and is large enough to protect horseshoe crabs in the shallow and deeper waters adjacent to Delaware Bay as they move inshore and offshore throughout the year.  The proposed closed area will serve as an integral part of the comprehensive State/Federal management program detailed in Addendum 1.

In addition to this proposed rule, NMFS intends to propose, under a separate rulemaking, a rule to establish reporting and permitting requirements, and prohibit transfers at sea of horseshoe crabs by federally permitted vessels, as recommended to NMFS by the Commission.

                    Additional background for the proposed rule for the closed area is available and contained in a EA/RIR/IRFA prepared by NMFS (see                     **ADDRESSES**                    ).                

## Changes from ANPR

The following are minor adjustments to the closed area’s latitude and longitude readings identified in the ANPR:

39°15.0'N. lat., has been changed to 39°14.6'N. lat.; 74°32.66'W. long., has been changed to 74°30.9'W. long.; 74°22.0'W. long., has been changed to 74°22.5'W. long.; and 75°35.46'W. long., has been changed to 75°00.4'W. long.

## Classification

NMFS prepared an initial regulatory flexibility analysis (IRFA) that describes the impact this proposed rule, if adopted, would have on small entities.  A summary of the IRFA is as follows:

                    This proposed rule is published under the authority of section 803 of the ACFCMA.  The purpose of the proposed rule is to improve cooperative management for the Atlantic coast horseshoe crab (                    *Limulus polyphemus*)  and to provide protection to the Delaware Bay population of horseshoe crabs to support conservation of the resource and help assure an adequate supply of horseshoe crab eggs for migrating shorebirds as well as an adequate supply of horseshoe crabs for bait and medical purposes over time.  The need for the closed area is explained in the preamble to this proposed rule and is not repeated here.   The proposed rule is estimated to affect 18 fishing vessels, all of which are small businesses; effects on them are expected to be minor.  Of these 18 vessels, 8 target horseshoe crabs directly and 10 land horseshoe crabs caught incidentally while targeting other species.  This proposed rule may also affect vessels that fish for whelks and other species on the same trip in the closed area.  However, it is unknown whether any vessels make such trips in the closed area and, if so, how many.  NMFS requests comments on this issue.                

                    There is an application requirement for persons or vessels seeking to obtain an exempted fishing permit under 50 CFR sections 697.22 and 600.745.  No special skills are required to complete the application for an exempted fishing permit.  The response time to complete the application is estimated to be 1 hour per vessel.  No other Federal rules duplicate or conflict with the proposed action.  Six alternatives were examined counting the proposed action.  They were: Alternative 1: no action; Alternative 2: a closed area using a radius of 30 nm, prohibition on possession of horseshoe crabs; Alternative 3: a closed area using a radius of 30 nm, limited possession of horseshoe crabs by whelk fishermen allowed; Alternative 4: a closed area using a radius of 15 nm, prohibition on possession of horseshoe crabs; Alternative 5: a closed area using a radius of 15 nm, limited possession of horseshoe crabs by whelk fishermen; and Alternative 6: a closed area using a                           ( print page 61138)                        radius of 60 nm, limited possession of horseshoe crabs by whelk fishermen.                

The preferred alternative would close an area encompassing a 30-nm radius off the mouth of Delaware Bay to horseshoe crab fishing, and allow limited possession of horseshoe crabs in the closed area by whelk vessels.  Of the 18 vessels affected, 8 direct effort on horseshoe crabs, and 10 harvest and sell horseshoe crabs that were caught incidently while directing effort on other species.  The reduction in annual total revenue  for the 8 vessels that conduct directed fishing trips is likely to be much lower than the $694,650, which is the total 1998 EEZ horseshoe crab combined dockside landings for Maryland, Delaware, and Virginia).  Since these vessels would be able to continue to fish for horseshoe crabs in adjoining areas, NMFS assumes they would do so with a reduction in efficiency because the density of horseshoe crabs decreases as you move further away from the mouth of Delaware Bay.  For the purpose of our analysis, we assumed that efficiency is reduced by 10 percent, which is likely since NMFS trawl surveys show horseshoe crabs to be less dense in areas outside the closed areas.  A corresponding 10-percent reduction in landings value would be about $69,465.  The reduction in annual revenue for the 10 vessels that incidently harvest horseshoe crabs is expected to be less than $3,000 per vessel or about $30,000.

Analysis for the non-preferred alternatives as compared to the preferred alterative is as follows:

                    The no action alternative would not reduce revenue to any vessels in the short term, but may reduce future ex-vessel revenues if taking no action results in a decline in the horseshoe crab resource off Delaware Bay.   Alternative 2 to close an area encompassing a 30-nm radius off of mouth of Delaware Bay to horseshoe crab fishing and to prohibit  possession of horseshoe crabs would affect the same number of vessels that harvest horseshoe crabs by either directed effort or incidental catch and have the same associated revenue reduction for those vessels as the preferred Alternative 3 ($30,000 for the 10 vessels that have incidental harvest, and less than $69,465 for the 8 vessels that make directed horseshoe crab trips).  Also, under Alternative 2 all whelk vessels that fish in the proposed area and use horseshoe crabs for bait would be affected. Under Alternative 3, they could continue to fish for whelks with horseshoe crabs.  It is not known how many whelk vessels fish in the proposed area but it is assumed that some whelk vessels would have to use alternate baits or search for other fishing areas under Alternative 2.  Therefore, revenue would be reduced for some of the whelk fishing fleet.  Alternative 4 to close an area encompassing a radius of 15 nm and prohibit possession of horseshoe crabs would have lower economic impacts on vessels that harvest horseshoe crabs than the preferred Alternative 3 because the area is smaller.  However, impacts on whelk fishermen under Alternative 4 may be greater than those on whelk fishermen under Alternative 3 because whelk fishermen would have to travel around the Alternative 4 closed area if they have horseshoe crabs on board.  Under Alternative 4, as in Alternative 2, whelk vessels would be prevented from using horseshoe crabs as bait in the closed area.  For Alternative 5 to close an area using a radius of 15 nm with limited possession of horseshoe crabs, economic impacts are expected to be similar to or slightly lower than those for the preferred Alternative 3 because the closed area is smaller than under the preferred alternative.  For Alternative 6 to close an area using a radius of 60 nm while allowing limited possession of horseshoe crabs, economic impacts are expected to be similar but more than those for the preferred alternative, because the closed area is larger than the preferred alternative.  A copy of the IRFA is available from NMFS (see                     **ADDRESSES**                    ).                

Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) control number.

                    This rule contains a collection-of-information requirement subject to the PRA.  That collection of information requirement is for persons or vessels requesting an exempted fishing permit subject to § 697.22 and § 600.745 to complete and submit an application.  The response time to complete the application is estimated to be 1 hour per vessel.  The collection of this information has been approved by the OMB under OMB Control Number 0648-0309.  This includes the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.  Send comments regarding this burden estimate, or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS and OMB (see                     **ADDRESSES**                    ).                

This proposed rule has been determined to be significant for purposes of Executive Order 12866.

# List of Subjects in 50 CFR Part 697

      - Fisheries
      - Fishing

Dated: October 10, 2000.

William T. Hogarth,

Deputy Assistant Administrator for Fisheries, National Marine Fisheries Service.

For the reasons set out in the preamble, 50 CFR chapter VI, part 697, is proposed to be amended as follows:

# PART 697—ATLANTIC COASTAL FISHERIES COOPERATIVE MANAGEMENT

1.  The authority citation for part 697 is revised to read as follows: 

Authority:16 U.S.C. 5101*et seq.*

2.  In § 697.2, the definitions for “Whelk” and “Whelk trap” are added alphabetically to read as follows: 

§ 697.2

* * * * *

*Whelk*                         means                         *Busycon*                         sp.                    

*Whelk trap*                         means any structure or device, other than a net or a dredge, that is placed or designed to be placed on the ocean bottom, is designed for or is capable of catching whelks, and has an unobstructed opening on its top of not less than eight inches (20.3 cm) square or nine inches (22.9 cm) in diameter through which whelks may pass.                    

* * * * *

3.  Section 697.7, paragraphs (e) (3) through (5) are added to read as follows: 

§ 697.7

* * * * *

(e) * * * 

(3) Fish for horseshoe crabs in the Carl N. Shuster Jr., Horseshoe Crab Reserve described in § 697.23(f)(1).

(4) Possess any horseshoe crabs in the area described in § 697.23(f)(1), except as allowed by § 697.23(f)(2).

(5) Fail to return immediately to the water horseshoe crabs caught in the area described in § 697.23(f)(1).

4.  Section 697.22 is revised to read as follows: 

§ 697.22

The Regional Administrator may exempt any person or vessel from the requirements of this part for the conduct of exempted fishing beneficial to the management of the American lobster, weakfish, Atlantic striped bass, Atlantic sturgeon, or horseshoe crab, resource or fishery pursuant to the provisions of § 600.745 of this chapter.
      ( print page 61139)    
(a) The Regional Administrator may not grant such exemption unless it is determined that the purpose, design, and administration of the exemption is consistent with the objectives of any applicable stock rebuilding program, the provisions of the ACFCMA, the Magnuson-Stevens Act, and other applicable law, and that granting the exemption will not:

(1) Have a detrimental effect on the American lobster, Atlantic striped bass, weakfish, Atlantic sturgeon, or horseshoe crab resource or fishery; or 

(2) Create significant enforcement problems.

(b) Each vessel participating in any exempted fishing activity is subject to all provisions of this part, except those explicitly relating to the purpose and nature of the exemption.  The exemption will be specified in a letter issued by the Regional Administrator to each vessel participating in the exempted activity.  This letter must be carried aboard the vessel seeking the benefit of such exemption.  Exempted fishing activity shall be authorized pursuant to and consistent with § 600.745 of this chapter.

5.  Section 697.23, paragraph (f) is added to read as follows: 

§ 697.23

* * * * *

(f) Carl N. Schuster Jr., Horseshoe Crab Reserve— (1) No fishing vessel or person on a fishing vessel may fish for or possess horseshoe crabs in the area known as the Carl N. Shuster Jr., Horseshoe Crab Reserve bounded as follows:

(i) On the north by a straight line connecting points 39°14.6'N. lat., 74°30.9'W. long. (3 nm off of Peck Beach, NJ) and 39°14.6'N lat., 74°22.5'W. long.

(ii) On the east by a straight line connecting points 39°14.6'N. lat., 74°22.5'W. long. and 38°22.0'N. lat., 74°22.5'W. long.

(iii) On the south side by a straight line connecting points 38°22.0'N. lat., 74°22.5'W. long. and 38°22.0'N. lat., 75°00.4'W. long. (3 nm off of Ocean City, MD).

(iv) On the west by state waters.

(2) Paragraph (f)(1) of this section does not apply to fishing vessels or persons on fishing vessels fishing with whelk traps or with whelk traps on board, provided that no other commercial fishing gear aside from whelk traps is on board or is being used.

(3) Horseshoe crabs caught in the area described in paragraph (f)(1) of this section must be returned immediately to the water.

[FR Doc. 00-26498 Filed 10-11-00; 4:11 pm]

BILLING CODE 3510-22-S