05-12353. Atlantic Coastal Fisheries Cooperative Management Act Provisions; Application for Exempted Fishing Permit Related to Horseshoe Crabs

AGENCY:

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

ACTION:

Notice; request for comments.

SUMMARY:

NMFS announces that the Director, Office of Sustainable Fisheries, is considering issuing an Exempted Fishing Permit to Limuli Laboratories of Cape May Court House, NJ, to conduct the fifth 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 from the mouth of the Delaware Bay. If granted, the EFP would allow the harvest of 10,000 horseshoe crabs for biomedical purposes and require, as a condition of the EFP, the collection of data related to the status of horseshoe crabs within the Reserve. This notice also invites comments on the issuance of the EFP to Limuli Laboratories.

DATES:

Written comments on this action must be received on or before July 7, 2005.

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 fax to [phone]. Comments on this notice may also be submitted by e-mail to: [e-mail]. Include in the subject line of the e-mail comment the following document identifier: Horseshoe Crab EFP Proposal.

FOR FURTHER INFORMATION CONTACT:

Tom Meyer, Fishery Management Biologist, [phone].

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. Accordingly, 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 March 7, 2001 to protect the Atlantic coast stock of horseshoe crabs and to support the effectiveness of the Atlantic States Marine Fisheries Commission's (Commission) Interstate Fishery Management Plan (ISFMP) for horseshoe crabs. The final rule (February 5, 2001; 66 FR 8906) prohibited fishing for and possession of horseshoe crabs in the Reserve on a vessel with a trawl or dredge gear aboard while in the Reserve. While the rule did not allow for any biomedical harvest or the collection of fishery dependent data, NMFS stated in the comments and responses section that it would consider issuing EFPs for the biomedical harvest of horseshoe crabs in 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) that is used to test injectable drugs and medical devices for bacteria and bacterial by-products. Presently, there is no alternative to the LAL derived from horseshoe crabs.

NMFS manages horseshoe crabs in the exclusive economic zone in close cooperation with the Commission and the U.S. Fish and Wildlife Service. The Commission's Horseshoe Crab Management Board met on April 21, 2000, and again on December 16, 2003, and recommended to NMFS that biomedical companies with a history of collecting horseshoe crabs in the Reserve are given an exemption to continue their historic levels of collection not to exceed a combined harvest total of 10,000 crabs annually. In 2000, the Commission's Horseshoe Crab Plan Review Team 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 in 2000, 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 and sexes of horseshoe crabs and large female horseshoe crabs are the ones usually selected for LAL processing. The remaining horseshoe crabs are released at sea with some unknown amount of mortality. Although unknown, 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 early November and because of the critical role horseshoe crab blood plays in 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 first established, the only fishery data from the Reserve were under EFPs issued to Limuli Laboratories for the past four years, and under Scientific Research Activity Letter of Acknowledgment issued 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), on September 24, 2002 (for collections from September 24-November 15, 2002), on August 14, 2003 (for collections from September 1-October 31, 2003), and on September 15, 2004 (for collections from September 15-October 31, 2004). 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 data collected through the EFP will be provided to NMFS, the Commission, and to the State of New Jersey.

Results from 2004 EFP

Limuli Laboratories applied for an EFP to collect horseshoe crabs for biomedical and data collection purposes from the Reserve in 2004. The EFP application specified that: (1) the same methods would be used in 2004 that were used in years 2001-2003, (2) 15 percent of the bled horseshoe crabs would be tagged - an increase from 10 percent, 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 July 12, 2004, which allowed them to collect horseshoe crabs in the Reserve until November 14, 2004. A total of 1,724 horseshoe crabs were collected within the Reserve. Of these, 1,500 animals were used for the manufacture of LAL. Horseshoe crab activity levels were noted as active (59 percent) and very active (33 percent). Only 8 percent of the animals exhibited little if no movement when placed on the scale. The remaining 224 animals were rejected for biomedical use due to lethargy or injury. Horseshoe crabs were collected on 23 days (6 days in July, 4 days in August, 5 days in September and 8 days in October), and were 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 at Two Mile Dock, Wildwood Crest, New Jersey and at County Dock, Ocean City, Maryland and transported to the laboratory by truck. Horseshoe crabs injured during transport and handling numbered 137 crabs or 7.95 percent (829 crabs or 14.1 percent in 2003) of the total while 87 horseshoe crabs or 5.05 percent (108 crabs or 1.8 percent in 2003) were noted as unresponsive (presumed dead). Since large horseshoe crabs, which are generally females, are used for LAL processing, most of the crabs transported to the laboratory were females. Of those 1,500 processed for LAL, 248 female crabs were measured (interocular distances and prosoma widths), weighed, aged, and tagged to establish baseline morphometrics and ages, prior to being released. An additional 64 female bled animals were tagged for a total of 313 animals. The average measurements for the female horseshoe crabs were 166.32 mm (165.36 mm in 2003) for the inter-ocular distance, 264.90 mm (267.42 mm in 2003) for the prosoma width and 2.39 kg (2.5 kg in 2003) for the weight. Encrusting organisms (bryozoans, barnacles and sand tub worms) were found on 66.9 percent of the horseshoe crabs examined. Broken tails were observed in 11.3 percent of the individuals.

Horseshoe crabs were aged in 2004 using Dr. Carl N. Schuster Jr.'s criteria of aging by appearance: virgin (5.31 percent), young (30.61 percent), young/medium (42.05 percent), and old (18.78 percent). This finding supports the basis for the Reserve, which was established to protect young horseshoe crabs.

In 2004, a total of 313 horseshoe crabs from the Reserve were tagged and 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. Twelve live recoveries of crabs previously bled, tagged, and released during 2001-2003, were found spawning along the Delaware Bay shore in both New Jersey (Cape Shore Lab, Thompsons, Reeds Beach, Jones Beach, Kimbles Beach, Del Haven, and East Point), and Delaware (Bowers). One live recovery, released in 2003, was found spawning on Jones Beach, New York. Three dead recoveries of crabs previously bled, tagged, and released in 2001 and 2003, were found in New Jersey (Villas and Pierces Point).

Data collected under the EFP were supplied to NMFS, the Commission, and the State of New Jersey.

Proposed 2005 EFP

Limuli Laboratories proposes to conduct an exempted fishery operation using the same means, methods, and seasons utilized during the EFPs in 2001-2004, as described below under terms and conditions. Limuli proposes to continue to tag 15 percent of the bled horseshoe crabs as they did in 2004, up from 10 percent during years 2001-2003.

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 under § 697.23(f)(1) and prohibit possession of horseshoe crabs on a vessel with a trawl or dredge gear aboard in the same Reserve.

Limuli Laboratories, in cooperation with the State of New Jersey's Division of Fish and Wildlife, submitted an application for an EFP dated June 2, 2005, which was received on June 6, 2005. 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 horseshoe crab regulations and fisheries management plan, and other applicable law. NMFS is considering adding the following terms and conditions to the EFP:

1. Limiting the number of horseshoe crabs collected in the Reserve to no more than 500 crabs per day and to a total of no more than 10,000 crabs per year;

2. Requiring collections to take place over a total of approximately 20 days during the months of July, August, September, October, and November. Horseshoe crabs are readily available in harvestable concentrations nearshore earlier in the year, and offshore in the Reserve from July through November;

3. Requiring that a 5½ inch (14.0 cm) flounder net 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 as to when and where the collection will take place;

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 the Lower Delaware Bay; and

7. Requiring that any turtle take be reported to NMFS, NERO Assistant Regional Administrator of Protected Resources Division (phone, [phone]) within 24 hours of returning from the trip in which the incidental take occurred.

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 data on sex ratio and daily numbers, and tag 15 percent of the horseshoe crabs harvested. Also, the EFP holder may be required to examine at least 200 horseshoe crabs for: morphometric data, by sex (e.g., interocular distance and weight), and level of activity, as measured by a response or by distance traveled after release on a beach.

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

Dated: June 16, 2005.

John H. Dunnigan

Director, Office of Sustainable Fisheries, National Marine Fisheries Service.