[Federal Register Volume 68, Number 137 (Thursday, July 17, 2003)]
[Proposed Rules]
[Pages 42360-42362]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-18104]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 600 and 697

[I.D. 070203E]


Atlantic Coastal Fisheries Cooperative Management Act Provisions; 
Application for Exempted Fishing Permit (EFP)

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

ACTION:  Notification of a request for an EFP to harvest horseshoe 
crabs; request for comments.

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SUMMARY:  NMFS announces that the Director, Office of Sustainable 
Fisheries, is considering issuing an EFP to Limuli Laboratories of Cape 
May Court House, NJ to conduct a third year of an exempted fishing 
operation otherwise restricted by regulations prohibiting the harvest 
of horseshoe crabs in the Carl N. Schuster Jr. Horseshoe Crab Reserve 
(Reserve) located 3 nautical miles (nm) seaward of the mouth of 
Delaware Bay. NMFS is considering issuing an EFP for the harvest of 
10,000 horseshoe crabs for biomedical purposes and requiring as a 
condition of the EFP the collection of data related to the status of 
Delaware Bay horseshoe crabs within the Reserve. Therefore, this 
document invites comments on the issuance of an EFP to Limuli 
Laboratories.

DATES:  Comments on this action must be received on or before August 1, 
2003.

ADDRESSES:  Written comments should be sent to John H. Dunnigan, 
Director, Office of Sustainable Fisheries, NMFS, 1315 East West 
Highway, Room 13362, Silver Spring, MD 20910. Mark the outside of the 
envelope ``Comments on Horseshoe Crab EFP Proposal.'' Comments may also 
be sent via facsimile (fax) to (301) 713-0596. Comments will not be 
accepted if submitted via e-mail or the Internet.

FOR FURTHER INFORMATION CONTACT: Tom Meyer, Fishery Management 
Biologist, (301) 713-2334.

SUPPLEMENTARY INFORMATION:

Background

    The regulations that govern exempted fishing, at 50 CFR 600.745(b) 
and 697.22 allow a Regional Administrator or the Director of the Office 
of Sustainable Fisheries to authorize for limited testing, public 
display, data collection, exploration, health and safety, environmental 
clean-up and/or hazardous removal purposes, the targeting or incidental 
harvest of managed species that would otherwise be prohibited. An EFP 
to authorize such activity may be issued, provided there is adequate 
opportunity for the public to comment on the EFP application, the 
conservation goals and objectives of the fishery management plan are 
not compromised, and issuance of the EFP is beneficial to the 
management of the species.
    The Reserve was established on February 5, 2001 (66 FR 8906), to 
provide protection for the Atlantic coast stock of horseshoe crabs, and 
to promote the effectiveness of the Atlantic States Marine Fisheries 
Commission's (Commission) Interstate Fishery Management Plan (ISFMP) 
for horseshoe crab. The final rule prohibited fishing for horseshoe 
crabs in the Reserve and the possession of horseshoe crabs on a vessel 
with a trawl or dredge aboard while in the Reserve. The rule did not 
allow for any biomedical harvest or the collection of fishery dependent 
data. However, in the comments and responses section, NMFS stated that 
it would consider issuing EFPs for the biomedical harvest of horseshoe 
crabs from the Reserve.
    The biomedical industry collects horseshoe crabs, removes 
approximately 30 percent of their blood, and returns them alive to the 
water. Approximately 10 percent do not survive the bleeding process. 
The blood contains a reagent called Limulus Amebocyte Lysate (LAL)

[[Page 42361]]

that is used to test injectable drugs and medical devices for bacteria 
and bacterial by-products. Presently, there is no alternative to LAL 
derived from the horseshoe crab.
    NMFS manages horseshoe crabs in the exclusive economic zone in 
close cooperation with the Commission. The Commission's Horseshoe Crab 
Management Board met on April 21, 2000, and recommended that biomedical 
companies with a history of collecting horseshoe crabs in the Reserve 
be given an exemption to continue their historic levels of collection 
not to exceed a combined harvest total of 10,000 crabs annually. The 
Commission's Horseshoe Crab Plan Review Team has reported that 
biomedical harvest of up to 10,000 horseshoe crabs should be allowed to 
continue in the Reserve given that the resulting mortality should be 
only about 1,000 horseshoe crabs (10 percent mortality during bleeding 
process). Also, the Commission's Horseshoe Crab Stock Assessment 
Committee Chairman recommended that, in order to protect the Delaware 
Bay horseshoe crab population from over-harvest or excessive collection 
mortality, no more than a maximum of 20,000 horseshoe crabs should be 
collected for biomedical purposes from the Reserve. In addition to the 
direct mortality of horseshoe crabs that are bled, it can be expected 
that more than 20,000 horseshoe crabs will be trawled up and examined 
for LAL processing. This is because horseshoe crab trawl catches 
usually include varied sizes of horseshoe crabs and large female 
horseshoe crabs are the ones selected for LAL processing. The 
unharvested horseshoe crabs are released at sea with some unknown 
amount of mortality, but this mortality is expected to be negligible.
    Collection of horseshoe crabs for biomedical purposes from the 
Reserve is necessary because of the low numbers of horseshoe crabs 
found in other areas along the New Jersey Coast from July through 
October and in light of the critical role horseshoe crab blood plays in 
proper health care. In conjunction with the biomedical harvest, NMFS is 
considering requiring that scientific data be collected from the 
horseshoe crabs taken in the Reserve as a condition of receiving an 
EFP. Since the Reserve was established on February 5, 2001, the only 
fishery data from this area were collected under EFPs issued to Limuli 
Laboratories on September 28, 2001, which allowed collections until 
October 31, 2001, and on August 1, 2002, which allowed collections 
until October 31, 2002, and under Scientific Research Activity Permits 
issued to Dr. Jim Berkson, Virginia Polytechnic Institute and State 
University's Department of Fisheries and Wildlife Science on September 
4, 2001 (for collections from September 1-October 31, 200l) and on 
September 24, 2002 (for collections from September 24-November 15, 
2002). Further data are needed to improve the understanding of the 
horseshoe crab population in the Delaware Bay area and to better manage 
the horseshoe crab resource under the cooperative state/Federal 
management program. The information collected through the EFP will be 
provided to NMFS, the Commission and to the State of New Jersey.

Results of Previous Year's EFP

    Limuli Laboratories applied for an EFP to collect horseshoe crabs 
for biomedical and data collection purposes from the Reserve, in 2002. 
The EFP application specified that: (1) The same methods would be used 
in 2002 as in 2001, (2) 10 percent of the bled horseshoe crabs would be 
tagged, and (3) there had not been any sighting or capture of marine 
mammals or endangered species in the trawling nets of fishing vessels 
engaged in the collection of horseshoe crabs, since 1993. An EFP was 
issued to Limuli Laboratories on August 1, 2002, which allowed them to 
collect horseshoe crabs until October 31, 2002, in the Reserve. A total 
of 1,012 horseshoe crabs were collected for the manufacture of LAL. The 
horseshoe crabs were collected on 11 dates (4 days in August and 7 days 
in September), transported to the laboratory for the bleeding operation 
and inspected for sex, size, injuries and responsiveness. Three to four 
tows were conducted during each fishing trip with the tows lasting no 
more than 30 minutes to avoid impacting loggerhead turtles. Horseshoe 
crabs were unloaded and transported to the laboratory by truck. The 
average sex ratio for the landings was 0.85 males per females, similar 
to last year's ratio of 0.88. Horseshoe crabs injured during transport 
and handling numbered 115 or 11.4 percent of the total while 31 
horseshoe crabs or 3.1 percent were noted as unresponsive (presumed 
dead). Therefore, 866 healthy, uninjured crabs were available for LAL 
processing. Since large horseshoe crabs, which are generally females, 
are used for LAL processing, most were females. Of those 866 processed 
for LAL, 200 female crabs were measured (inter-ocular distances and 
prosoma widths), weighed, aged, and tagged to establish baseline 
morphometrics and ages, prior to being released. Healed injuries were 
found on 21.5 percent of the crabs examined in 2002, compared to 30 
percent in 2001. More than half of those injuries were broken or worn 
telsons. Most of the healed injuries were the result of spawning 
attachments.
    Horseshoe crabs were aged in 6 categories using Dr. Carl N. 
Schuster Jr.'s criteria of aging by appearance: First year or virgin, 
young, young/medium, medium, medium/old and old age. In 2002, animals 
were categorized as five percent virgin females, 68 percent young 
animals, 25 percent young/medium and medium, combined, and 2 percent 
medium/old and old, combined. This finding supports the basis for the 
Reserve which was established to protect young horseshoe crabs. The 
average measurements for the female horseshoe crabs (no males were 
measured) were 168.10 mm for the inter-ocular distance, 270.93 mm for 
the prosoma width and 2.5 kg for weight. These averages are slightly 
higher than seen in 2001. The horseshoe crabs were rated on an activity 
scale of from one to three, with three being the most active. The vast 
majority of the 200 that were observed were active (194), with 185 
falling in category two and nine in category three. Only six crabs 
exhibited no movement on the scale and were rated as one. Tagged crabs 
were released at the water's edge on Highs Beach, New Jersey. The beach 
was checked frequently, following release, to ensure the crabs had 
returned to the water.
    A total of 450 horseshoe crabs from the Reserve were tagged and 
released during 2001 and 2002. Nine of the 200 horseshoe crabs tagged 
in 2001 have been recovered. Of those, 6 crabs were found alive and 3 
were found dead. All but one of the live recoveries occurred during the 
2002 spawning season. The 3 crab mortalities may have been a 
consequence of spawning.
    Data collected under the EFP were supplied to NOAA Fisheries, the 
Commission, and the State of New Jersey.

Proposed EFP

    Limuli Laboratories proposes to conduct a third year of the study 
using the same means and methods used during years one and two, as 
described below under terms and conditions.
    The proposed EFP would exempt two commercial vessels from 
regulations at 50 CFR 697.7(e), which prohibit fishing for horseshoe 
crabs in the Reserve described in Sec.  697.23(f)(1) and prohibit 
possession of horseshoe crabs on a vessel with a trawl or dredge aboard 
in the same Reserve.
    Limuli Laboratories, in cooperation with the State of New Jersey's 
Division of Fish and Wildlife, submitted an

[[Page 42362]]

application for an EFP on June 26, 2003. NMFS has made a preliminary 
determination that the subject EFP contains all the required 
information and warrants further consideration. NMFS has also made a 
preliminary determination that the activities authorized under the EFP 
would be consistent with the goals and objectives of the Federal 
horseshoe crab regulations and the Commission's Horseshoe Crab ISFMP.
    Regulations at 50 CFR 600.745(b)(3)(v) authorize NMFS to attach 
terms and conditions to the EFP consistent with the purpose of the 
exempted fishery, the objectives of the horseshoe crab regulations and 
fisheries management plan, and other applicable law. NMFS is 
considering terms and conditions such as:
    (1) Limiting the number of horseshoe crabs collected in the Reserve 
to no more than 500 per day and to a total of no more than 10,000 per 
year;
    (2) Requiring collection under an EFP to take place over a total of 
approximately 20 days during the months of July, August, September, and 
October. Horseshoe crabs are readily available in harvestable 
concentrations nearshore earlier in the year, and offshore in the 
Reserve during July through October;
    (3) Requiring a 5 and one-half inch (14.0 cm) flounder net to be 
used by the vessel to collect the horseshoe crabs. This condition would 
allow for continuation of traditional harvest gear and adds to the 
consistency in the way horseshoe crabs are harvested for data 
collection;
    (4) Limiting trawl tow times to 30 minutes as a conservation 
measure to protect sea turtles, which are expected to be migrating 
through the area during the collection period, and are vulnerable to 
bottom trawling;
    (5) Restricting the hours of fishing to daylight hours only, 
approximately from 7:30 a.m. to 5 p.m. to aid law enforcement. NMFS 
also is considering a requirement that the State of New Jersey Law 
Enforcement be notified daily when and where the collection will take 
place; and
    (6) Requiring that the collected horseshoe crabs be picked up from 
the fishing vessels at docks in the Cape May Area and transported to 
local laboratories, bled for LAL, and released alive the following 
morning into Lower Delaware Bay.
    Also as part of the terms and conditions of the EFP, for all 
horseshoe crabs bled for LAL, NMFS is considering a requirement that 
the EFP holder provide information on sex ratio and daily numbers, and 
tag 10 percent of the horseshoe crabs harvested. Also, the EFP holder 
may be required to examine at least 200 horseshoe crabs for:
    a. Morphometric data, by sex--e.g. interocular (I/O) distance and 
weight, and
    b. Level of activity, as measured by a response or by distance 
traveled after release on a beach.
    Based on the results of this EFP, this action may lead to future 
rulemaking.

    Authority: 16 U.S.C. 1801 et seq.

    Dated: July 11, 2003.
John H. Dunnigan,
Director, Office of Sustainable Fisheries, National Marine Fisheries 
Service.
[FR Doc. 03-18104 Filed 7-16-03; 8:45 am]
BILLING CODE 3510-22-S