E4-1256. 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.

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 the fourth 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 document also invites comments on the issuance of the EFP to Limuli Laboratories.

DATES:

Comments on this action must be received on or before August 3, 2004.

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 [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. Comments will not be accepted if submitted via the Internet.

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. 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 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 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 LAL derived from the horseshoe crab.

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 be 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 three years, 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), on September 24, 2002 (for collections from September 24-November 15, 2002), and on August 14, 2003 (for collections from September 1-October 31, 2003). 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 2003 EFP

Limuli Laboratories applied for an EFP to collect horseshoe crabs for biomedical and data collection purposes from the Reserve in 2003. The EFP application specified that: (1) the same methods would be used in 2003 that were used in 2002 and 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 6, 2003, which allowed them to collect horseshoe crabs in the Reserve until October 31, 2003. A total of 5,889 horseshoe crabs were collected for the manufacture of LAL. The horseshoe crabs were collected on 20 dates (6 days in September and 14 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. The average sex ratio for the landings in 2003 was 0.80 males per female, similar to the 2002 ratio of 0.85. Horseshoe crabs injured during transport and handling numbered 829 or 14.1 percent (115 or 11.4 percent in 2002) of the total while 108 horseshoe crabs or 1.8 percent (31 or 3.1 percent in 2002) were noted as unresponsive (presumed dead). Therefore, 4,952 healthy, uninjured crabs were available for LAL processing. 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 4,952 processed for LAL, 199 female crabs were measured (interocular distances and prosoma widths), weighed, aged, and tagged to establish baseline morphometrics and ages, prior to being released. Bryozoans were found on 25.1 percent of the crabs and slipper shells were found on 20.1 percent. Twenty-eight of the crabs (14.1 percent) had damage to their tail, being either broken or abnormal.

Horseshoe crabs were aged in six categories using Dr. Carl N. Schuster Jr.'s criteria of aging by appearance: (1) first year or virgin, (2) young, (3) young/medium, (4) medium, (5) medium/old and, (6) old age. In 2003, the horseshoe crabs were categorized as virgin and young (34.68 percent), young/medium (55.27 percent), old (10.06 percent). 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 165.36 mm for the interocular distance, 267.42 mm for the prosoma width, and 2.5 kg for weight. These averages are slightly lower than 2002.

In 2003, a total of 725 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. Twenty-eight crabs or 6.2 percent were recovered from the 2001 and 2002 tagging of 450 horseshoe crabs. There were 20 recoveries or 8 percent from the 250 horseshoe crabs tagged in 2001. Of these, 13 crabs were found alive and 7 were found dead. None of these crabs were bled for production of LAL in 2001. There were eight live returns or 4 percent from the 2002 tagging of 200 crabs, no dead returns were documented. The bled, tagged crabs were found spawning along the Delaware Bay shore in both New Jersey (Gradys, Fortescue, and Thompson beaches) and Delaware (Bowers, Kitts Hummock, and Slaughter beaches). The dates of recovery ranged from May 11 to June 23, coinciding with the spawning season. Tagged horseshoe crabs that were utilized for the manufacture of LAL in 2002 were observed spawning on Delaware Bay beaches in 2003.

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

Proposed 2004 EFP

Limuli Laboratories proposes to conduct an exempted fishery operation using the same means, methods, and seasons utilized during the EFPs in 2001-2003, as described below under terms and conditions. In addition, Limuli proposes to increase the percent of horseshoe crabs tagged from 10 to 15 percent.

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 March 30, 2004, which was received on April 9, 2004. 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 per day and to a total of no more than 10,000 per year;

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

3. Requiring that a 51/2 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 NOAA Fisheries, 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:

1. Morphometric data, by sex (e.g., interocular distance and weight), and

2. 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: May 28, 2004.

Alan D. Risenhoover,

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