[Federal Register Volume 66, Number 24 (Monday, February 5, 2001)]
[Rules and Regulations]
[Pages 8906-8911]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-2120]


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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.

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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