[Federal Register Volume 65, Number 200 (Monday, October 16, 2000)]
[Proposed Rules]
[Pages 61135-61139]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-26498]


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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


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: Proposed rule; request for comments.

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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.

[[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 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 side 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 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

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

[[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 Sec.  
697.22 and Sec.  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 Sec.  697.2, the definitions for ``Whelk'' and ``Whelk trap'' 
are added alphabetically to read as follows:


Sec. 697.2  Definitions.

* * * * *
    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:


Sec. 697.7  Prohibitions.

* * * * *
    (e) * * *
    (3) Fish for horseshoe crabs in the Carl N. Shuster Jr., Horseshoe 
Crab Reserve described in Sec. 697.23(f)(1).
    (4) Possess any horseshoe crabs in the area described in 
Sec. 697.23(f)(1), except as allowed by Sec.  697.23(f)(2).
    (5) Fail to return immediately to the water horseshoe crabs caught 
in the area described in Sec. 697.23(f)(1).

    4. Section 697.22 is 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.

[[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 Sec.  600.745 of this chapter.

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


Sec. 697.23  Restricted gear areas.

* * * * *
    (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 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 side 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 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