![[logo] US EPA](http://www.epa.gov/epafiles/images/logo_epaseal.gif){kind=logo}
Atlantic Coastal Fisheries Cooperative Management Act Provisions; Horseshoe Crab Fishery; Closed Area
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: February 5, 2001 (Volume 66, Number 24)]
[Rules and Regulations]
[Page 8906-8911]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05fe01-14]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 697
[Docket No. 000412106-0363-03; I.D. 032200A]
RIN 0648-AO02
Atlantic Coastal Fisheries Cooperative Management Act Provisions;
Horseshoe Crab Fishery; Closed Area
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: NMFS issues this final rule 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
final 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: Effective March 7, 2001.
ADDRESSES: Copies of supporting documents, including an Environmental
Assessment/Regulatory Impact Review/Final Regulatory Flexibility
Analysis (EA/RIR/FRFA), 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. Send comments on any ambiguity or unnecessary
complexity arising from the language used in this final rule to the
Chief, Staff Office for Intergovernmental and Recreational Fisheries,
National Marine Fisheries Service, 8484 Georgia Avenue, Suite 425,
Silver Spring, MD 20910.
FOR FURTHER INFORMATION CONTACT: Paul Perra, 301-427-2014.
SUPPLEMENTARY INFORMATION:
Background
The background and rationale for this final rule were contained in
the preamble to the proposed rule, published in the Federal Register on
October 16, 2000 (65 FR 61135), and are not repeated here. Additional
background for this final rule is available and contained in a EA/RIR/
FRFA prepared by NMFS. (see ADDRESSES).
This final rule prohibits fishing for 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 (closed area); prohibits possessing
horseshoe crabs on a vessel with a trawl or dredge while in the closed
area; and requires fishermen to return to the water all horseshoe crabs
caught in the closed area incidental to any fishing operations,
including whelk fishing.
The closed area in the EEZ off Delaware Bay is bounded as follows:
(1) on the north by a straight line connecting points 39 deg.14.6'N.
lat., 74 deg.30.9'W. long. (3 nm off of Peck Beach, New Jersey) and
39 deg.14.6'N lat., 74 deg.22.5'W. long.; (2) on the east by a straight
line connecting points 39 deg.14.6'N. lat., 74 deg.22.5'W. long. and
38 deg.22.0'N. lat., 74 deg.22.5'W. long.; (3) on the south by a
straight line connecting points 38 deg.22.0'N. lat., 74 deg.22.5'W.
long. and 38 deg.22.0'N. lat., 75 deg.00.4'W. long. (3 nm off of Ocean
City, MD); and (4) on the west by the outermost boundary of state
waters.
Comments and Responses
Comments were received during three scoping meetings and during the
15-day comment period on the proposed rule. Scoping meetings on the
proposed regulations were held: on September 5, 2000, in Dover, DE; on
September 6, 2000, in Cape May, NJ, and on September 7, 2000, in
Salisbury, MD. During the scoping meetings, NMFS received 22 comments
in favor of the proposed closed area and 14 against. During the 15-day
comment period on the proposed rule, NMFS received 58 written comments
from the public. In general terms, 54 of the commenters were in favor
of the proposed rule, and 4 were opposed to its issuance.
Comments in favor were submitted by local and national conservation
groups, various state agencies, some biomedical companies, and the
general public. Comments in opposition to the proposed rule were
submitted by organizations representing the fishing industry, by some
biomedical companies, and by members of the public. In addition,
several companies that use horseshoe crab blood for biomedical purposes
and some of the conservation organizations requested a modification to
the proposed rule that would allow horseshoe crabs to be harvested in
the closed area for biomedical use.
All comments received during the comment period were considered. An
additional 38 persons submitted comments within 7 days after the
deadline for the comment period. These comments did not raise issues
that were not raised by others during the proposed rule comment period
or considered by NMFS during the rulemaking process. All but one of
these late comments were in favor of the proposed rule. These comments
were considered, but are neither identified nor responded to here.
Comments received during the comment period are identified and
responded to as follows:
Comment 1: Several commenters stated that the closed area needs a
``sister'' law enacted by the state to protect horseshoe crabs from
overharvest on beaches.
Response: Harvesting on beaches is under the purview of each state
which cooperatively manages horseshoe crabs with other states and the
Federal government through implementation of the Commission's Fishery
Management Plan for Horseshoe Crabs.
Comment 2: Twenty-three commenters stated that they wanted the
immediate establishment of the proposed closed area.
Response: NMFS is establishing the closed area as expeditiously as
possible.
Comment 3: A commenter was concerned that NMFS would not be able to
enforce the requirement that all horseshoe crabs caught in the closed
[[Page 8907]]
area incidental to other fishing operations, including whelk fishing,
be returned to the water.
Response: NMFS intends to work closely with the U. S. Coast Guard
to enforce the closed area. This final rule requires fishermen to
return immediately to the water any horseshoe crab caught in the closed
area regardless of whether the horseshoe crabs were caught on purpose
or incidental to any fishing activities, including whelk fishing. This
final rule also prohibits the possession of horseshoe crabs by a vessel
or a person on a vessel with a trawl or dredge in the closed area.
Considering the depths in the closed area, trawls and dredges are the
only efficient gears that could be used to catch horseshoe crabs.
Therefore, a vessel fishing for whelks would not be able to catch
horseshoe crabs in the closed area and put them in their whelk traps.
Comment 4: One commenter stated that horseshoe crab limits should
be for the entire Delaware Bay and extend offshore to 36-nm. Also, two
conservation groups submitted comments that, while they were in favor
of the closed area, they would prefer a much larger closed area.
Response: The commenter who wanted a 36-nm closure did not explain
why it would be critical to expand the closed area to 36-nm. Also,
several conservation organizations wanted more area closed to better
insure the protection of horseshoe crabs. Delaware Bay waters are
managed under the purview of state laws. Federal jurisdiction starts 3
nm out from the mouth of the Delaware Bay. This final rule protects
horseshoe crabs in Federal waters within an area encompassing a 30-nm
radius of the Delaware Bay. NMFS believes that an area with a 30-nm
radius is adequate to protect the majority of horseshoe crabs in the
Delaware Bay and reasonably balances the need to protect horseshoe
crabs and the need to consider impacts on the fishing industry and the
biomedical industry. Extending the closed area would unnecessarily
disrupt fishing activities conducted away from the area of concern.
Comment 5: Three commenters requested that a notice of the closure
be sent to all horseshoe crab and whelk fishermen that take or land
horseshoe crabs in the vicinity of the closed area as well as to
horseshoe crab and whelk dealers from Delaware through Virginia.
Response: In addition to publishing this final rule in the Federal
Register, which provides notice to all members of the public in
accordance with the requirements of the Administrative Procedure Act,
NMFS intends to work closely with the state marine fisheries agencies
in the Delaware Bay area to identify and notify those involved in the
whelk and horseshoe crab fisheries about the closed area.
Comment 6: Eleven commenters stated that they were in favor of some
biomedical harvest of horseshoe crabs in the closed area. One commenter
stated that scientific collection permits should be issued to authorize
the biomedical harvest of horseshoe crabs from the closed area. Six
commenters stated that they wanted biomedical companies that now take
horseshoe crabs from the proposed closed area to be grandfathered-in so
that they may continue to take horseshoe crabs from the closed area.
They also stated that no more than the current biomedical harvest
should be allowed, and that the biomedical harvest should only be
allowed under a provision requiring horseshoe crabs be returned to the
ocean after bleeding. One commenter stated that closed area is the only
area to obtain horseshoe crabs for the biomedical industry in the fall
of the year. Two commenters stated that there should be no exceptions
to the ban on horseshoe crab fishing in the closed area for the
biomedical industry.
Response: The NMFS trawl survey shows that horseshoe crabs are
found both north and south of the closed area during the fall of the
year. Only about 10 percent of the horseshoe crabs harvested for the
biomedical industry currently come from the closed area. However, given
that Limulus Ameobocyte Lysate can only be produced from horseshoe crab
blood and is essential for detection of bacterial endotoxins in drugs
and medical equipment, NMFS agrees that a limited biomedical harvest of
horseshoe crabs should be allowed in the closed area. However, since
biomedical harvest is for commercial purposes, the use of scientific
collection permits is inappropriate. Because both the Commission and
NMFS need additional data on the horseshoe crab resource in order to
manage it optimally, NMFS believes that the appropriate mechanism for
allowing biomedical harvest would be an exempted fishing permit for
which any biomedical company could apply. Grandfathering-in biomedical
companies with a history of harvesting horseshoe crabs from the closed
area would not result in the generation of needed data. Regulations at
50 CFR Secs. 600.745 and 697.22 establish the procedures for
requesting an exempted fishing permit, as well the procedures and
criteria NMFS would use to review and issue an exempted fishing permit.
Using the exempted fishing permit mechanism, NMFS could limit the total
biomedical harvest to 10,000 horseshoe crabs annually as recommended by
the Commission's Horseshoe Crab Management Board. In addition, NMFS
will require that all crabs harvested be returned to the water after
bleeding and, for example, that the number of crabs and the locations
where they were taken from and returned to the water be reported to
NMFS in order to help fulfill data needs.
Comment 7: Eighteen commenters stated that the closed area should
be designated the Carl N. Shuster Jr. Horseshoe Crab Reserve as
proposed by NMFS.
Response: NMFS agrees.
Comment 8: One commenter stated that the closed area should be
closed for 5 years with an option to renew, and 20 commenters stated
that the closed area should be established for at least 10 to 15 years.
Response: The Commission's Horseshoe Crab Management Board has
recommended that the closed area remain in place for at least 5 years.
NMFS has not designated an ending date for the closed area, but
considers the closure a long-term conservation measure that may be
adjusted through rulemaking as more information on the horseshoe crab
resource, its ecological role, and the fishery become available.
Comment 9: Five commenters stated that a monitoring program should
be established to measure the effectiveness of the closed area.
Response: NMFS intends to work in cooperation with the states and
the Commission through the Commission's technical committee and the
stock assessment committee to monitor the effectiveness of the closed
area.
Comment 10: A commenter stated that NMFS, in its analysis,
virtually ignored the substantial economic activity (in the hundreds of
millions of dollars) generated by non-consumptive uses of the horseshoe
crabs, such as shorebird/horseshoe crab tourism and the use of
horseshoe crab by the medical industry.
Response: While no detailed economic analysis was done on
shorebird/horseshoe crab tourism and the value of the horseshoe crab
resource to the medical industry, NMFS agrees that these activities
generate substantial economic benefits, and that protection of the
horseshoe crab resource through the closed area will ensure the
continuation of some of these benefits. NMFS reviewed economic studies
that stated that the potential economic benefits for the coastwide
biomedical fishery may range up to $175 million dollars, and that New
Jersey's Delaware
[[Page 8908]]
Bay shorebird tourism may generate up to $32 million in gross economic
benefits. However, the biomedical estimates included input from
Massachusetts and South Carolina where the majority of horseshoe crabs
are harvested for biomedical purposes and the shorebird economic study
for New Jersey estimated the range of gross economic benefits from $19
million to $28 million.
Comment 11: Several commenters stated that there is no scientific
justification for the closed area and that horseshoe crabs are already
sufficiently protected by stringent harvest restrictions.
Response: While there is no valid coastwide stock assessment, there
are Delaware Bay egg count and spawner surveys, and the State of
Delaware's trawl survey that show declining trends in abundance. The
scientific peer review of the Commission's horseshoe crab stock
assessment cited concern over localized population declines, and
recommended a risk-averse horseshoe crab management program. The closed
area is part of a risk-averse management program that will help protect
the Delaware Bay spawning population of horseshoe crabs. Also,
information submitted during the comment period from a horseshoe crab
scientist associated with the Virginia Institute of Marine Science
provided additional rationale that the closed area protects the
juvenile horseshoe crabs in the offshore area and, therefore, closes a
significant horseshoe crab management ``loop hole'' and strengthens the
management program for horseshoe crabs.
Comment 12: One commenter stated that the proposal will damage
tourism because the horseshoe crab population will increase and large
numbers of horseshoe crabs will die on the beaches and rot, thereby
making beach going activities repulsive.
Response: The closed area will help increase the horseshoe crab
population and will help provide food for migratory shorebirds. Beach
clean up activities could be organized, if an increased population of
horseshoe crabs fouls the beaches.
Comment 13: One commenter expressed support for the closed area
stating that the closure will cause an increase in the number of
horseshoe crabs. However, the commenter expressed concern that this
would only supply more eggs for sea gulls, and suggested that the
number of gulls needs to be reduced or the gulls need to be prevented
from feeding on horseshoe crab spawning beaches.
Response: The purpose for the closed area is to help protect the
horseshoe crab population so that it may fulfill its multiple uses,
including providing food for migratory shorebirds and other wildlife.
As the number of horseshoe crab spawners increases, more horseshoe crab
eggs will be produced and buried on the beaches. This will eventually
provide more eggs for birds and more eggs to sustain the horseshoe crab
population.
Comment 14: Two commenters stated that the closed area is too large
and that a smaller area from 5 to 15-nm should be closed initially. One
of these commenters also commented that a smaller closure, combined
with enhanced monitoring, may show that there is no need to extend the
closure to a larger area.
Response: Horseshoe crabs have been found as far as 35-nm offshore,
and a significant component of the Delaware Bay horseshoe crab
population extends out to the continental shelf. Therefore, closing an
area from 5 to 15-nm offshore would not be an adequate risk-averse
approach to protect the Delaware Bay horseshoe crab population because
a good portion of the Delaware Bay population of horseshoe crabs
migrate beyond 15-nm of the mouth of the Delaware Bay.
Comment 15: A commenter said the closure will negatively affect eel
and whelk fishermen through a reduced supply of horseshoe crab and
higher horseshoe crab bait prices.
Response: Horseshoe crabs may still be harvested outside the closed
area. Horseshoe crab bait availability would primarily be a function of
harvest quotas enacted by Atlantic coast states. Reduced supply may be
made up for by the use of bait bags that can reduce horseshoe crab
needs by 50 percent per whelk trap, and thus reduce demand for bait.
Also, alternative baits can be used instead of horseshoe crabs,
especially in the eel fishery. These factors may cause bait prices to
rise or fall depending on their cost and efficiency. However, the
impact of any reduced supply or increase in bait prices that results
from the closed area is overridden by the overall need to protect the
horseshoe crab resource so that it may fulfill its sustainable long-
term multiple uses.
Comment 16: A commenter stated that the short time period to
implement the closure will negatively impact fishermen.
Response: The Commission recommended the closed area on February 9,
2000; NMFS published an advance notice of proposed rulemaking regarding
the closed area on May 3, 2000 (65 FR 25698); and published the
proposed rule on October 16, 2000 (65 FR 61135). NMFS is proceeding
with this final rule because of the need to act in a risk-averse manner
to protect the horseshoe crab resource. Concerns over the decline of
the Delaware Bay horseshoe crab population and the need to provide
migrating shorebirds passing through the Delaware Bay area, many of
which are experiencing their own population declines (especially the
Red Knot), a plentiful horseshoe crab egg food source, make issuance of
the final rule necessary at this time.
Comment 17: A commenter stated that no efforts are being made to
get artificial bait on the market and that without horseshoe crabs for
bait, the whelk and eel fisheries will be devastated.
Response: NMFS disagrees. The development of artificial bait to
substitute for horseshoe crabs is ongoing at several universities and
in industry. NMFS is also helping with a pilot program to manufacture
horseshoe crab bait bags that could reduce horseshoe crab bait needs by
50 percent. Eel and whelk vessels should be able to obtain bait under
state quotas, which when applied with bait bags may meet their needs.
Several substitute baits, such as clam bellies, shrimp heads, and
cheese, have been reported through the Commission's October 5, 1999,
Alternative Bait Workshop.
Comment 18: A commenter stated that NMFS should proceed very
carefully because closed areas for one species may be used as a conduit
to secure additional regulations on other species and/or gear types.
Response: NMFS considers the closed area only as a reserve for
horseshoe crabs, and is only restricting the simultaneous possession of
horseshoe crabs and gear that could be used to illegally harvest
horseshoe crabs in the closed area.
Comment 19: There were two comments that stated that prohibiting
vessels from having on board all other fishing gear aside from whelk
traps makes fishing vessels less efficient.
Response: NMFS agrees. NMFS had originally proposed prohibiting all
other fishing gear when possessing whelk pots in the closed area.
However, based on scoping meetings and the comments received on the
proposed rule, it was determined that vessels that fish for whelks with
horseshoe crabs operate with different types of fishing gear on board
and fish for other species while making whelk fishing trips. NMFS
agrees that some other commercial gears, other than whelk pots, should
be allowed on vessels that also possess horseshoe crabs. Therefore, the
final rule has been modified to prohibit only
[[Page 8909]]
trawls or dredges on vessels possessing horseshoe crabs in the closed
area.
Comment 20: A commenter stated that if trawls and dredges are
prohibited on vessels with horseshoe crabs in the closed area, the
trawl nets or dredge bags should be allowed to be stowed below deck,
and trawl doors should be allowed to remain on the vessel since
expensive dockside crane service is required to remove the doors.
Response: Due to the difficulty of enforcing a prohibition on
fishing for horseshoe crabs in the closed area and a stowage
requirement, NMFS believes it is unwise to allow vessels to have the
net or bag portion of trawl or dredge gear on board, even if stowed,
while also allowing them to possess horseshoe crabs. However, NMFS sees
no need to have trawl doors removed from vessels, when the trawl nets
or dredge bags are already removed from the vessel.
Comment 21: A commenter stated that whelk vessels fishing in the
closed area should be allowed to use lobster and fish pots while
possessing horseshoe crabs on board.
Response: NMFS agrees for the same reasons as cited in comment 19.
Comment 22: A commenter stated that vessels shipping horseshoe
crabs for bait or biomedical purposes should be allowed to transit the
closed area since going around the reserve adds time and expense and
impedes interstate commerce.
Response: In order to support the enforcement of the closed area, a
vessel with a trawl or dredge may not possess horseshoe crabs in the
closed area. However, transportation of horseshoe crabs through the
closed area is allowed as long as the vessel does not have a trawl or
dredge.
Comment 23: Two commenters stated that the closed area is
unnecessary because the coastwide state-by-state quotas are sufficient
to protect horseshoe crabs.
Response: The closed area is necessary to give added protection to
the Delaware Bay horseshoe crab population, because even though there
are individual state quotas, there is no restriction on where horseshoe
crabs can be taken in the Federal waters. Without the closed area,
vessels from many states could concentrate their fishing in Federal
waters near the mouth of the Delaware Bay and, while fishing under
quotas intended for other regions, deplete the Delaware Bay horseshoe
crab population.
Comment 24: NMFS received two comment letters signed by a total of
six persons stating that the southern boundary of the closed area
should be at the Maryland/Delaware state line, because vessels
harvesting horseshoe crabs off the Maryland coast harvest crabs in the
morning, and then fish for other species before returning to port.
Response: Moving the southern boundary line of the closed area to
the Maryland/Delaware state line would shrink the closed area north to
where it no longer would give enough protection to the Delaware Bay
horseshoe crab population.
Comment 25: A commenter requested that more Federal regulations be
implemented to further restrict harvest of horseshoe crabs in Federal
waters.
Response: NMFS believes that the closed area and the state harvest
quotas under the Commission's plan are a good first step in protecting
horseshoe crabs. NMFS is preparing a proposed rule to improve on the
reporting of the horseshoe crab catch and prevent transfer of horseshoe
crabs at sea. As further information becomes available on the horseshoe
crab resource and fishery, NMFS will adjust the conservation measures
on horseshoe crabs in Federal waters as necessary to protect the
horseshoe crab resource and support its competing multiple uses.
Comment 26: Four commenters requested that NMFS implement better
reporting requirements regarding the horseshoe crab harvest and prevent
transfer-at-sea of horseshoe crabs.
Response: NMFS is in the process of developing a proposed rule that
would implement better reporting requirements and prohibit transfers-
at-sea of horseshoe crabs in the EEZ by Federal horseshoe crab fishery
permit holders, regardless of whether they are in the EEZ or state
waters.
Comment 27: Several commenters stated that NMFS should also
recognize the role that horseshoe crabs and their eggs play in
providing food for marine finfish and shellfish, and marine mammals.
Response: NMFS acknowledges that horseshoe crab eggs and horseshoe
crabs are a food source for numerous marine animals, including
shorebirds, sea turtles, finfish, crabs, and mollusks.
Comment 28: A commenter stated that the economic impacts cited for
the value of horseshoe crabs as bait in the proposed rule totally
ignored the true economic impact to eel, catfish, and whelk fishermen.
Response: NMFS in its analysis of the proposed rule cited economic
values for the eel and whelk fisheries (the value of horseshoe crab
bait for the catfish fishery is uncertain), and recognized that the
availability of horseshoe crab bait will affect the eel and whelk
fisheries. However, the major impact on horseshoe crab bait
availability and price is through state commercial horseshoe crab
quotas, which have limited the coastwide take of horseshoe crabs by 25
percent or more. While the closed area may make it less efficient to
collect horseshoe crabs, it is not a major factor in limiting the
availability of horseshoe crab to the eel, catfish, and whelk
fishermen. NMFS acknowledges that there may be some minor impacts to
the eel, catfish, and whelk fishermen due to the closed area, but was
unable to quantify those impacts.
Changes from the Proposed Rule
In response to comments received during the three scoping meetings
and during the 15-day comment period for the proposed rule, the
following changes were made:
In Sec. 697.2, although definitions for trawl and dredge are listed
in Sec. 600.10, they are added to Sec. 697.2 to make the regulations
easier to understand and follow.
In Sec. 697.2, the definitions for whelk and whelk trap are removed
because paragraph (f)(2) under Sec. 697.23 no longer uses either term.
In Sec. 697.23, paragraph (f)(2), the paragraph has been rewritten
to take out the reference to whelk traps and applies the prohibition on
the possession of horseshoe crabs to any vessel or person on a vessel
with a trawl or dredge. In the proposed rule, no commercial fishing
gear except whelk traps were allowed on board if a vessel or person was
in possession of horseshoe crabs. See response to comment 20 for more
details.
In response to the removal of the definition for horseshoe crabs in
Sec. 697.2 and paragraph (e)(1) and (2) of Sec. 697.7 due to the
removal of another rule (65 FR 64896, October 31, 2000), the following
changes were made:
In Sec. 697.2, the definition for horseshoe crab is added.
In Sec. 697.7, paragraph (e)(3) through (5), were redesignated
(e)(1) through (3).
Additional background for this final rule is available and
contained in a EA/RIR/FRFA prepared by NMFS (see ADDRESSES).
Classification
The Assistant Administrator for Fisheries, NOAA (AA) has determined
that these actions are compatible with the effective implementation of
the Commission's coastal FMP and consistent with the national standards
of the Magnuson-Stevens Fishery Conservation and Management Act.
NMFS prepared a FRFA that describes the impact of this final rule
on small entities. A summary of the FRFA follows:
[[Page 8910]]
This final rule is published under the authority of section 803 of
the Atlantic Coastal Fisheries Cooperative Management Act. The purpose
of the rule is to improve cooperative management of the Atlantic coast
horseshoe crab Limulus polyphemus and 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 final rule and is not
repeated here. This final rule is estimated to affect 19 fishing
vessels, all of which are small businesses; effects on them are
expected to be minor. Of these 19 vessels, 9 target horseshoe crabs
directly and 10 land horseshoe crabs caught incidentally while
targeting other species.
There are no reporting, record keeping or other similar compliance
requirements in this final rule. No other Federal rules duplicate or
conflict with the proposed action.
Six alternatives were examined when the rule was proposed. They
were: Alternative 1 - no action; Alternative 2 - a closed area using a
radius of 30-nm, prohibition on possession of horseshoe crabs;
Alternative 3A - a rejected proposed preferred alternative that 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 with no other commercial
fishing gear except whelk traps; 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 radius of 60-nm, limited possession of horseshoe
crabs by whelk fishermen.
NMFS had originally proposed Alternative 3A (prohibition on fishing
for horseshoe crabs but allowed possession of horseshoe crabs by
fishing vessels with no commercial fishing gear other than whelk traps
on board in the closed area). However, based on scoping meetings and
the comments received on the proposed rule, it was determined that
vessels that fish for whelks using horseshoe crabs as bait operate with
different types of fishing gear on board and fish for other species
while making whelk fishing trips. NMFS agrees that some other
commercial gears, other than whelk pots, should be allowed on vessels
that also possess horseshoe crabs and fish in the closed area.
Therefore, the rule has been modified as stated below in Alternative 3.
Alternative 3, the selected, preferred alternative closes an area
encompassing a 30-nm radius off the mouth of Delaware Bay to horseshoe
crab fishing, and prohibits possession of horseshoe crabs by a vessel
or by a person on a vessel with a trawl or dredge. This allows vessels
that have horseshoe crabs on board in the closed area to fish for other
species with a variety of gears, but not trawls or dredges. The
rationale for allowing such activity is based on the fact that trawls
or dredges are most likely the only gears that would be used to harvest
horseshoe crabs at depths such as those in the closed area. Therefore,
for enforcement proposes, they are not allowed on vessels that also
possess horseshoe crabs in the closed area. However, other gears aside
from trawls or dredges are not as capable of catching horseshoe crabs
and pose little risk to the enforcement of the closed area. Also, based
on public comment, trawl doors may be left on vessels possessing
horseshoe crabs in the closed area. This relieves fishermen of the cost
of removing the doors if they wish to possess horseshoe crabs in the
closed area. These modifications to the proposed rule provide some
economic relief to the fishing fleet while not compromising the
conservation goals of the action. The preferred alternative was
selected because it was the best approach to preventing overfishing of
the horseshoe crab resource off Delaware Bay while minimizing adverse
economic impacts on fishing vessels.
The six other alternatives were rejected for the following reasons:
Alternative 1, the no action alternative, may result in future
reductions in ex-vessel revenues, tourism revenues, and revenues from
the biomedical industry if taking no action results in a decline in the
horseshoe crab resource off Delaware Bay. Alternative 2, which would
close an area encompassing a 30-nm radius off of mouth of Delaware Bay
to horseshoe crab fishing and prohibit possession of horseshoe crabs,
would prevent vessels from fishing for whelks in the closed area by
prohibiting them from taking horseshoe crabs as bait into the closed
area. Alternative 4, which closes an area encompassing a radius of 15-
nm and prohibits possession of horseshoe crabs, was rejected because it
did not provide adequate protection for horseshoe crabs and would have
prevented the whelk fishery from continuing in the closed area.
Alternative 3A was rejected because it would have unnecessarily
prevented vessels with horseshoe crabs on board from fishing in the
closed area for other species with gears that are not likely to catch
horseshoe crabs. Alternative 5, a closed area using a radius of 15-nm
with limited possession of horseshoe crabs, was rejected because it did
not provide adequate protection for horseshoe crabs and would have
prevented vessels with horseshoe crabs on board from fishing in the
closed area for other species with gears that are not likely to catch
horseshoe crabs. Alternative 6, a closed area using a radius of 60-nm
while allowing limited possession of horseshoe crabs, was rejected
because it would have closed more area than needed to protect the
Delaware Bay horseshoe crab resource, and thus unnecessarily negatively
effected fishing vessels. A copy of the FRFA is available from NMFS
(see ADDRESSES).
This final rule has been determined to be significant for purposes
of Executive Order 12866.
The President has directed Federal agencies to use plain language
in their communication with the public, including regulations. To
comply with this directive, we seek public comment on any ambiguity or
unnecessary complexity arising from the language used in this final
rule. Such comments should be sent to the Chief, Staff Office for
Intergovernmental and Recreational Fisheries (see ADDRESSES).
List of Subjects in 50 CFR Part 697
Fisheries, Fishing, Intergovernmental relations.
Dated: January 19, 2001.
Penelope D. Dalton,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 50 CFR chapter VI, part
697, is amended as follows:
PART 697--ATLANTIC COASTAL FISHERIES COOPERATIVE MANAGEMENT
1. The authority citation for part 697 continues to read as
follows:
Authority: 16 U.S.C. 1851 note; 16 U.S.C. 5101 et seq.
2. In Sec. 697.2, the definitions for ``Dredge,'' ``Horseshoe
crab,'' and ``Trawl'' are added alphabetically to read as follows:
Sec. 697.2 Definitions.
* * * * *
Dredge means a gear consisting of a mouth frame attached to a
holding bag constructed of metal rings or mesh.
* * * * *
[[Page 8911]]
Horseshoe crab means members of stocks or populations of the
species Limulus polyphemus.
* * * * *
Trawl means a cone or funnel-shaped net that is towed through the
water, and can include a pair trawl that is towed simultaneously by two
boats.
* * * * *
3. In Sec. 697.7, paragraph (e) is added to read as follows:
Sec. 697.7 Prohibitions.
* * * * *
(e) Atlantic Coast Horseshoe Crab fishery. In addition to the
prohibitions set forth in Sec. 600.725 of this chapter, it is unlawful
for any person to do any of the following:
(1) Fish for horseshoe crabs in the Carl N. Shuster Jr. Horseshoe
Crab Reserve described in Sec. 697.23(f)(1).
(2) Possess horseshoe crabs on a vessel with a trawl or dredge in
the closed area described in Sec. 697.23(f)(1).
(3) Fail to return to the water immediately without further harm,
all horseshoe crabs caught in the closed area described in
Sec. 697.23(f)(1).
4. In Sec. 697.22, the introductory paragraph and paragraph (a)(1)
are revised to read as follows:
Sec. 697.22 Exempted fishing.
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 Sec. 600.745 of this chapter.
(a) * * *
(1) Have a detrimental effect on the American lobster, Atlantic
striped bass, weakfish, Atlantic sturgeon, or horseshoe crab resource
or fishery; or
* * * * *
5. Section 697.23, paragraph (f) is added to read as follows:
Sec. 697.23 Restricted gear areas.
* * * * *
(f) Carl N. Shuster Jr. Horseshoe Crab Reserve. (1) No vessel or
person may fish for 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 deg.14.6'N. lat., 74 deg.30.9'W. long. (3 nm off of Peck Beach, NJ)
and 39 deg.14.6'N lat., 74 deg.22.5'W. long.
(ii) On the east by a straight line connecting points
39 deg.14.6'N. lat., 74 deg.22.5'W. long. and 38 deg.22.0'N. lat.,
74 deg.22.5'W. long.
(iii) On the south by a straight line connecting points
38 deg.22.0'N. lat., 74 deg.22.5'W. long. and 38 deg.22.0'N. lat.,
75 deg.00.4'W. long. (3 nm off of Ocean City, MD).
(iv) On the west by the outermost boundary of state waters.
(2) No vessel or person on a vessel with a trawl or dredge may
possess horseshoe crabs in the area described in paragraph (f)(1) of
this section.
(3) Horseshoe crabs caught in the area described in paragraph
(f)(1) of this section must be returned immediately to the water
without further harm.
[FR Doc. 01-2120 Filed 2-2-01; 8:45 am]
BILLING CODE: 3510-22-S