Notice2026-03198
Endangered and Threatened Wildlife; 90-Day Finding on Petitions To List the Atlantic Horseshoe Crab (Limulus Polyphemus) Under the Endangered Species Act
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Published
February 18, 2026
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
NMFS announces our 90-day finding on two petitions to list the Atlantic (or American) horseshoe crab (Limulus polyphemus) under the Endangered Species Act (ESA) and to designate critical habitat. We find that the petitions do not present substantial scientific or commercial information indicating that the petitioned actions may be warranted.
Full Text
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<title>Federal Register, Volume 91 Issue 32 (Wednesday, February 18, 2026)</title>
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[Federal Register Volume 91, Number 32 (Wednesday, February 18, 2026)]
[Notices]
[Pages 7448-7468]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-03198]
[[Page 7448]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XR133; Docket No. 260209-0041]
Endangered and Threatened Wildlife; 90-Day Finding on Petitions
To List the Atlantic Horseshoe Crab (Limulus Polyphemus) Under the
Endangered Species Act
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; 90-day finding.
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SUMMARY: NMFS announces our 90-day finding on two petitions to list the
Atlantic (or American) horseshoe crab (Limulus polyphemus) under the
Endangered Species Act (ESA) and to designate critical habitat. We find
that the petitions do not present substantial scientific or commercial
information indicating that the petitioned actions may be warranted.
DATES: This finding was made on February 18, 2026.
ADDRESSES: Copies of the petitions and related materials are available
from the NMFS website at <a href="https://www.fisheries.noaa.gov/national/endangered-species-conservation/negative-90-day-findings">https://www.fisheries.noaa.gov/national/endangered-species-conservation/negative-90-day-findings</a>.
FOR FURTHER INFORMATION CONTACT: Danielle Palmer, NMFS Greater Atlantic
Regional Fisheries Office, Protected Resources Division, (978) 282-
8468, <a href="/cdn-cgi/l/email-protection#95f1f4fbfcf0f9f9f0bbe5f4f9f8f0e7d5fbfaf4f4bbf2fae3"><span class="__cf_email__" data-cfemail="1470757a7d717878713a647578797166547a7b75753a737b62">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Background
We received petitions on December 21, 2023, from the Friends of
Animals and on February 27, 2024, from the Center for Biological
Diversity to list the Atlantic (or American) horseshoe crab (Limulus
polyphemus) as an endangered or threatened species and to designate
critical habitat for this species under the ESA. Both petitions
identify four of the five ESA 4(a)(1) factors as threatening the
continued existence of this species: (1) the present or threatened
destruction, modification, or curtailment of its habitat or range; (2)
overutilization for commercial, recreational, scientific or educational
purposes; (3) the inadequacy of existing regulatory mechanisms; and (4)
other natural or manmade factors affecting its continued existence. The
petitions are available online (see ADDRESSES).
ESA Statutory, Regulatory, and Policy Provisions and Evaluation
Framework
Section 4(b)(3)(A) of the ESA of 1973, as amended (16 U.S.C. 1531
et seq.), requires, to the maximum extent practicable, that within 90
days of receipt of a petition to list a species as threatened or
endangered, the Secretary of Commerce shall make a finding on whether
that petition presents substantial scientific or commercial information
indicating that the petitioned action may be warranted, and promptly
publish such finding in the Federal Register (16 U.S.C. 1533(b)(3)(A)).
When we find that substantial scientific or commercial information in a
petition indicates the petitioned action may be warranted (a ``positive
90-day finding''), we are required to promptly commence a review of the
status of the species concerned, during which we will conduct a
comprehensive review of the best available scientific and commercial
data. In such cases, within 12 months of receipt of the petition, we
conclude the review with a finding as to whether, in fact, the
petitioned action is warranted. Because the finding at the 12-month
stage is based on a more thorough review of the best available
information, as compared to the narrow scope of review at the 90-day
stage, a positive 90-day finding does not prejudge the outcome of the
status review.
Under the ESA, a listing determination may address a species, which
is defined to also include subspecies and, for any vertebrate species,
any distinct population segment (DPS) that interbreeds when mature (16
U.S.C. 1532(16)). A joint NMFS--U.S. Fish and Wildlife Service (USFWS;
jointly, ``the Services'') DPS Policy clarifies the agencies'
interpretation of the phrase ``distinct population segment'' for the
purposes of listing, delisting, and reclassifying a species under the
ESA (61 FR 4722, February 7, 1996). A species, subspecies, or DPS is
``endangered'' if it is in danger of extinction throughout all or a
significant portion of its range, and ``threatened'' if it is likely to
become endangered within the foreseeable future throughout all or a
significant portion of its range (ESA sections 3(6) and 3(20),
respectively, 16 U.S.C. 1532(6) and (20)). Pursuant to the ESA and our
implementing regulations, we determine whether species are threatened
or endangered based on any one or a combination of the following
section 4(a)(1) factors: (1) the present or threatened destruction,
modification, or curtailment of its habitat or range; (2)
overutilization for commercial, recreational, scientific, or
educational purposes; (3) disease or predation; (4) inadequacy of
existing regulatory mechanisms; or (5) other natural or manmade factors
affecting the species' continued existence (16 U.S.C. 1533(a)(1), 50
CFR 424.11(c)).
ESA-implementing regulations issued jointly by the Services (50 CFR
424.14(h)(1)(i)) define ``substantial scientific or commercial
information'' in the context of reviewing a petition to list, delist,
or reclassify a species as ``credible scientific or commercial
information in support of the petition's claims such that a reasonable
person conducting an impartial scientific review would conclude that
the action proposed in the petition may be warranted. Conclusions drawn
in the petition without the support of credible scientific or
commercial information will not be considered ``substantial
information.'' In reaching the initial (90-day) finding on the
petition, we consider the information described in sections 50 CFR
424.14(c), (d), and (g) (if applicable) and may also consider
information readily available at the time the determination is made (50
CFR 424.14(h)(1)(ii)).
Our determination as to whether the petition provides substantial
scientific or commercial information indicating that the petitioned
action may be warranted depends in part on the degree to which the
petition includes the following types of information: (1) information
on current population status and trends and estimates of current
population sizes and distributions, both in captivity and the wild, if
available; (2) identification of the factors under section 4(a)(1) of
the ESA that may affect the species and where these factors are acting
upon the species; (3) whether, and to what extent, any or all of the
factors alone or in combination identified in section 4(a)(1) of the
ESA may cause the species to be an endangered species or threatened
species (i.e., the species is currently in danger of extinction or is
likely to become so within the foreseeable future), and, if so, how
high in magnitude and how imminent the threats to the species and its
habitat are; (4) information on adequacy of regulatory protections and
effectiveness of conservation activities by States, as well as other
parties, that have been initiated or that are ongoing, that may protect
the species or its habitat; and (5) a complete, balanced representation
of the relevant facts, including information that may contradict claims
in the petition. See 50 CFR 424.14(d).
We may also consider information readily available at the time the
[[Page 7449]]
determination is made (50 CFR 424.14(h)(1)(ii)). We are not required to
consider any supporting materials cited by the petitioner if the
petitioner does not provide electronic or hard copies, to the extent
permitted by U.S. copyright law, or appropriate excerpts or quotations
from those materials (e.g., publications, maps, reports, and letters
from authorities). See 50 CFR 424.14(c)(6) and 50 CFR 424.14(h)(1)(ii).
At the 90-day finding stage, we do not conduct additional research,
and we do not solicit information from parties outside the agency to
help us in evaluating the petition. We accept the petitioner's sources
and characterizations of the information presented if they appear to be
based on accepted scientific principles, unless we have specific
information in our files that indicates the petition's information is
incorrect, unreliable, obsolete, or otherwise irrelevant to the
requested action. Information that is susceptible to more than one
interpretation, or that is contradicted by other available information,
will not be dismissed at the 90-day finding stage, so long as it is
reliable and a reasonable person conducting an impartial scientific
review could conclude it supports the petitioner's assertions. In other
words, conclusive information indicating the species may meet the ESA's
requirements for listing is not required to make a positive 90-day
finding.
To make a 90-day finding on a petition to list a species, we first
evaluate whether the information presented in the petition indicates
that the petitioned entity constitutes a species eligible for listing
under the ESA. If so, we evaluate whether the petition presents
substantial scientific or commercial information indicating the subject
species may be either a threatened or endangered species, as defined by
the ESA. This may be indicated in information expressly discussing the
species' status and trends or in information describing impacts and
threats to the species. We evaluate whether the petition presents any
information on specific demographic factors pertinent to evaluating
extinction risk for the species (e.g., population abundance and trends,
productivity, spatial structure, age structure, sex ratio, diversity,
current and historical range, habitat integrity, or fragmentation) and
the potential contribution of identified demographic risks to
extinction risk for the species. We then evaluate whether the petition
presents information suggesting potential links between these
demographic risks and the causative impacts and threats identified in
section 4(a)(1) of the ESA.
Information presented on impacts or threats should be specific to
the species and should reasonably suggest that one or more of these
factors may be operative threats that act, or have acted, on the
species to the point that it may warrant protection under the ESA.
Broad statements about generalized threats to the species, or
identification of factors that could negatively impact a species, do
not constitute substantial information indicating that listing may be
warranted. We look for information indicating not only whether the
particular species is exposed to a factor, but also whether the species
may be responding in a negative fashion. We then assess the potential
significance of any such negative response.
Many petitions identify risk classifications made by
nongovernmental organizations, such as the International Union for
Conservation of Nature (IUCN), the American Fisheries Society, or
NatureServe as evidence of extinction risk for a species. Risk
classifications by other organizations or made under other Federal or
State statutes may be informative, but such classification alone may
not provide the rationale for a positive 90-day finding under the ESA.
For example, as explained by NatureServe,\1\ their assessments of a
species' conservation status do not constitute a recommendation by
NatureServe for listing under the ESA because NatureServe assessments
have different criteria, evidence requirements, purposes, and taxonomic
coverage than government lists of endangered and threatened species,
and therefore these two types of lists should not be expected to
coincide. Additionally, species classifications under IUCN and the ESA
are not equivalent; data standards, criteria used to evaluate species,
and treatment of uncertainty are also not necessarily the same. Thus,
when a petition cites such classifications, we will evaluate the source
of information that the classification is based upon in light of the
standards on extinction risk and impacts or threats in accordance with
the ESA and our implementing regulations as discussed above.
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\1\ <a href="https://explorer.natureserve.org/AboutTheData/DataTypes/ConservationStatusCategories">https://explorer.natureserve.org/AboutTheData/DataTypes/ConservationStatusCategories</a>.
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Atlantic (or American) Horseshoe Crab Species Description
There are four extant species of horseshoe crabs belonging to the
phylum Arthropoda and the Family Limulidae (ASMFC 1998; Smith et al.
2017). The Atlantic (or American) horseshoe crab (HSC), Limulus
polyphemus, is the only species of HSC that occurs along the Atlantic
and Gulf of America coasts of North America. Atlantic HSCs range from
Maine south to Yucat[aacute]n, Mexico; however, the species has not
been documented as occurring along the western and southern Gulf of
America coasts from Texas to Tabasco, Mexico (ASMFC 1998, 2019; Smith
et al. 2017). Information cited in the petitions suggests that the
portion of the range of greatest biological significance to the
Atlantic HSC is located within the center of the species' range,
specifically, the Mid-Atlantic's Delaware Bay. Sources (ASMFC 2022a;
Smith et al. 2016; Smith et al. 2017; Smith et al. 2023; Smith, J.A. et
al. 2022) indicate that the Delaware Bay supports the largest
population of Atlantic HSC. For example, Smith, J.A. et al. (2022)
state that ``the largest aggregation of spawning American horseshoe
crabs in the world occurs in Delaware Bay.'' The significance of the
Delaware Bay HSC population is further evidenced by the importance of
this region to the ESA-listed red knot (Calidris canutus rufa), which
primarily forage on HSC eggs. Specifically, the Delaware Bay is the
only area identified across the red knot's range as containing an
Atlantic HSC population large enough to produce sufficient surface egg
abundance needed to support the energetic requirements of migrating red
knots (ASMFC 2022a; Smith et al. 2017; Smith, J.A. et al. 2022).
Over an individual's lifetime, Atlantic HSCs generally stay near or
within their natal waters (e.g., estuaries or embayments) (ASMFC 2009,
2013, 2019; Smith et al. 2009; Smith et al. 2016; Smith et al. 2017;
Smith, J.A. et al. 2022). Numerous genetic, isotope, tagging, and
behavioral studies have indicated that the Atlantic HSC can be divided
into regional population units (ASMFC 2019; Gerhart 2007; King et al.
2015; Smith et al. 2016; Smith et al. 2017; Smith et al. 2023).
Specifically, based on the examination by King et al. (2015) of 13
polymorphic nuclear markers of the Atlantic HSC, at least 8 regional
units were identified across the species' range: Maine (northern Maine,
Hog Bay), Gulf of Maine (southern Maine to New Hampshire), Mid-Atlantic
(Massachusetts to North Carolina), Southeast (South Carolina to
Georgia), Florida-East (Indian River, Florida-Atlantic), Florida-South
(Biscayne Bay, Florida-Atlantic), Florida-Gulf of
[[Page 7450]]
America (hereafter, ``Gulf''),\2\ and Yucat[aacute]n Peninsula, Mexico.
Among these regional population units, King et al. (2015) found that
the pair-wise genetic distance, which is a measure of the degree of
genetic differentiation between two populations, was greatest between
the regional units at the extremes of the species' range (i.e.,
northern Maine (Hog Bay) and Yucat[aacute]n Peninsula, Mexico). Large
degrees of genetic differentiation were also observed when either
regional unit at the extremes of the species' range (i.e., northern
Maine (Hog Bay) or Yucat[aacute]n Peninsula, Mexico) was compared to
the Gulf of Maine, Mid-Atlantic, Southeast, Florida-East, Florida-
South, or Florida-Gulf regional units (King et al. 2015). King et al.
(2015) identified barriers to gene flow (via isolation by distance or
by physical oceanographic features (e.g., currents)) as a contributing
factor to the high degree of genetic differentiation detected between
the populations at the extremes of the species' range and other
regional population units, as well as between several isolated
populations along Florida's east coast. For the remaining regional
population units identified along the Atlantic and Gulf coasts,
although genetic variation exists within and between regional
population units, King et al. (2015) identified some degree of
relatedness (or recent gene flow) among regional populations,
specifically those neighboring one another. Based on these findings,
King et al. (2015) concluded that gene flow occurs within each regional
unit, and some low levels of gene exchange occur between neighboring
regional units. Results of genetic studies, including those completed
by King et al. (2015), also indicate that gene flow is primarily
mediated by male dispersal (or movement) among spawning sites, as
evidenced by the higher degree of genetic differentiation observed
among females in different regional populations than males (ASMFC 2009;
Gerhart 2007; King et al. 2015; Smith et al. 2017).
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\2\ King et al. (2015) identifies the ``Gulf of Mexico'' as one
of the eight Atlantic HSC regional units. Pursuant to Executive
Order 14172, issued on January 20, 2025, that body of water is now
known as Gulf of America.
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The life history of the Atlantic HSC is characterized by late
maturation (i.e., age of sexual maturity), with females maturing
between 10 to 12 years and males between 9 to 10 years; high fecundity;
low adult but high egg and larvae natural mortality; and a longevity of
approximately 17 to 20 years (ASMFC 2019; Schuster and Sekiguchi 2003;
Smith et al. 2017; Smith et al. 2009). Completion of each stage of the
Atlantic HSCs life history, from embryo to adult, depends upon specific
environmental cues (e.g., temperature, tidal patterns, wind, water
levels) which are broadly discussed below. However, as environmental
conditions are not uniform across the species' range, numerous studies
have documented the species ability to adapt to existing and changing
environmental conditions at a local level (Banerjee and Mitra 2017;
Botton et al. 2009; Botton et al. 2021; Chabot et al. 2011; Cheng et
al. 2015; Estes et al. 2021; Smith et al. 2017). Atlantic HSCs are
considered ecological generalists given the species' tolerance and
adaptability to a wide range of environmental conditions, including
hypoxia (low oxygen levels), salinity ranging from 35 parts per
thousand (ppt) to approximately about 1.7 ppt, and temperature ranging
from below 0[deg] Celsius to over 40[deg] Celsius (Banerjee and Mitra
2017; Botton et al. 2009; Botton et al. 2021; Laughlin 1983).
Upon reaching sexual maturity, environmental cues stimulate
spawning behavior in adult Atlantic HSCs (ASMFC 2019; Chabot et al.
2011; Cheng et al. 2015; Estes et al. 2021; Smith et al. 2017). Given
the geographic range of the species, initiation of spawning behavior
varies temporally by latitude (ASMFC 2019; Estes et al. 2021; Smith et
al. 2016; Smith et al. 2017; Smith et al. 2009). In general, at the
most southern portion of the Atlantic HSC range (i.e., Yucat[aacute]n
Peninsula, Mexico) spawning can occur year-round, while at the most
northern portion of its range, (i.e., New Hampshire to Maine) spawning
begins when water temperatures reach approximately 12[deg] Celsius to
15[deg] Celsius, generally between the months of April to June (ASMFC
2019; Smith et al. 2016; Smith et al. 2017; Smith et al. 2009).
Regardless of geographic location, daily spawning activity is
associated with high tides, which the species detects through changes
in water depth (ASMFC 2019; Chabot et al. 2011; Cheng et al. 2015;
Estes et al. 2021; Smith et al. 2017). Studies have shown that water
level changes are the strongest cue for synchronization of spawning
activities, with other environmental factors (e.g., temperature,
currents, salinity) playing a lesser role (Chabot et al. 2011).
Numerous studies provided in Chabot et al. (2011) matched the spawning
frequency of some Atlantic HSC populations with tidal periodicity, and
it was noted in Chabot et al. (2011) that other populations that
experience ``micro tides (essentially no tidal water changes)'' showed
no synchronization of spawning activity.
Once spawning environmental cues are received, males and females
migrate from deeper oceanic or estuarine waters to spawning beaches
(ASMFC 2019; Chabot et al. 2011; Cheng et al. 2015; Smith et al. 2017).
Females typically arrive at the spawning beach with an attached male,
along with several males following the attached pair (ASMFC 2019; Smith
et al. 2016; Smith et al. 2017). In general, adults prefer to spawn on
sandy, undisturbed beaches of bays, coves, and lagoons protected from
wave energy and preferably near intertidal flats that serve as a
nursery habitat for Atlantic HSC larvae and juveniles (ASMFC 2019;
Smith et al. 2017; Smith, J.A. et al. 2022). However, depending on
location within the species' range, Atlantic HSCs may spawn in
estuarine shoreline habitat, near the edges of small mangrove islands,
on offshore sandbars, or on beaches in other estuarine shoreline
habitats comprised of mud, fine grained, or cobble substrate (Smith et
al. 2017; Smith et al. 2023). On a single tide, females will create
multiple nests between the low-tide terrace (tidal flat) and the
extreme high-tide water line (ASMFC 2019; Smith et al. 2016; Smith et
al. 2017). Larger females produce and carry more eggs than smaller
females (Smith et al. 2009; Smith et al. 2017). For example, females
with a prosomal width (i.e., the largest straight-line width of the HSC
body) of 265 millimeters (mm) have been reported to carry 80,000 eggs
(Smith et al. 2009), while females with a prosomal width of 201 mm have
been reported to carry approximately 14,500 eggs (Smith et al. 2017).
However, egg cluster size does not appear to be solely related to
female size because latitudinal variation in cluster size has been
documented, with cluster size appearing to be larger for those
populations in the middle of the species' range (e.g., Delaware Bay,
reported eggs/cluster = 2,365 to 5,836) and smaller towards the more
northern and southern ends of the species' range (e.g., in Cape Cod,
reported eggs/cluster = 640 to 1,280; in Florida, reported eggs/cluster
= 1,644 to 1,739) (ASMFC 2019; Smith et al. 2017). Once eggs are
deposited, according to studies cited in Smith et al. (2017), in
general, optimal egg development occurs at salinities between 20 and 30
ppt; however, optimal egg development for HSCs located in microtidal
lagoon systems has been observed to occur at 30 to 40 ppt. Studies have
found that egg development occurs most rapidly at temperatures ranging
from 25[deg] Celsius to 30[deg] Celsius (Smith et al. 2017).
[[Page 7451]]
However, Bottom and Itow (2009) found that Atlantic HSC embryos and
larvae are very tolerant and well adapted to survive a broad range of
temperatures and salinities; similar findings were made by Gerhart
(2007) and Laughlin (1983).
In general, 2 to 4 weeks after egg deposition, environmental cues
associated with patterns of tidal inundation (i.e., hydration, physical
disturbance, hypoosmotic shock) trigger eggs to hatch (ASMFC 2019;
Smith et al. 2017). Newly hatched Atlantic HSC larvae, termed
trilobites, depend on tidal inundation of the nest to be transported to
nearshore, shallow, intertidal flats, just off the spawning and nesting
beaches; these areas support growth and development of trilobite and
juvenile stages of Atlantic HSC (ASMFC 2019; Smith et al. 2016; Smith
et al. 2017). As juvenile Atlantic HSC near sexual maturity, between
the ages of 7 or 8, they begin to incrementally move to deeper,
subtidal waters of bays or estuaries, before moving to deeper waters of
the continental shelf to continue to mature to adulthood (ASMFC 2019;
Smith et al. 2016; Smith et al. 2017). Outside of the spawning and
nesting season, adult Atlantic HSC may be found in embayments, lagoons,
or in offshore waters of the continental shelf and, therefore, may
occupy a range of salinities from <10 ppt to >50 ppt (ASMFC 2019; Smith
et al. 2017).
Analysis of Petition
The petitions address a single species, L. polyphemus, provide the
scientific and common names for this species, and clearly indicate the
administrative measures being requested. The petitions also contain
detailed, narrative justifications for the requested listing under the
ESA and provide information on the species' taxonomy, geographic
distribution, and threats. Abundance estimates are lacking for this
species; however, information is provided in the petitions and
supporting references regarding population status and trends. In the
section below, we provide a summary of Atlantic HSC population
abundance, status, and trends, and we provide our analysis of whether
the information provided in the petitions indicates that the petitioned
actions may be warranted.
Abundance, Status, and Population Trends
The abundance of Atlantic HSC, regionally or range-wide, is
unknown, with no available historical baseline population data (ASMFC
1998, 2019; Botton et al. 2021; Smith et al. 2016; Smith et al. 2017;
Smith et al. 2023; Smith, J.A. et al. 2022; Zald[iacute]var-Rae et al.
2009). As a result, the size and demographic characteristics of the
species prior to unregulated harvest between the mid-19th to late 20th
centuries remains uncertain. Most information regarding status and
population trends comes from the U.S. east coast (i.e., Maine to
Florida-Atlantic) where the species is managed by the Atlantic States
Marine Fisheries Commission (ASMFC) in accordance with the Interstate
Fisheries Management Plan (ISFMP) issued in 1998 (ASMFC 1998; Smith,
J.A. et al. 2022).
In terms of its status, both petitions rely largely on the IUCN Red
List assessment of the Atlantic HSC (cited on the IUCN website as Smith
et al. (2016) and published as Smith et al. (2017)) to support the
petitions' claims that the Atlantic HSC is in decline and in danger of
extinction. The petitioners focus on the risk assessment profiles by
Smith et al. (2016, 2017) of six genetically defined regional (and
three Mid-Atlantic sub-regional) Atlantic HSC populations (see table
1); these regional units were informed by the genetic findings of King
et al. (2015). Although Smith et al. (2016, 2017) consider the
population range-wide (i.e., Maine to Yucat[aacute]n Peninsula,
Mexico), quantitative data for their assessment relies largely on the
fishery-independent data (i.e., data collected from regional surveys or
research outside of the fishery) used for the ASMFC's 2013 Horseshoe
Crab Stock Assessment Update (ASMFC 2013). Specifically, the ASMFC HSC
assessments rely on regional fishery-independent survey data collected
along the U.S. eastern seaboard since the 1970s, 1980s, or 1990s to
inform regional HSC population trends. Regional population units are
defined based on tagging and genetic studies (e.g., King et al. 2015),
and U.S. east coast state boundaries (ASMFC 2019). The regional HSC
population trends identified by the ASMFC (2013) are representative of
each regional population, where 2012 was the terminal year of the
assessment. Given the above, although Smith et al. (2016, 2017) and the
ASMFC (2013) sort regional Atlantic HSC populations into slightly
different population units and use different methodologies and terms to
describe population trends, these two assessments are in general
agreement with respect to regional trends through 2012. Specifically,
as of 2012, population trends for populations in the Southeast region
were increasing, the Delaware Bay region was stable, and population
declines were evident in the New York and New England/Northeast regions
(see table 1).
Since the implementation of the 1998 ISFMP, the ASMFC has issued
multiple Atlantic HSC stock assessments (i.e., ASMFC 2009, 2013, 2019,
2024a). Together, the ASMFC's 2019 and 2024 stock assessments provide
an additional 10 years of data on Atlantic HSC regional populations
from New Hampshire through Florida since Smith et al. (2016, 2017).
Additionally, although both petitions cite the 2019 Horseshoe Crab
Stock Assessment and Peer Review Report (ASMFC 2019), and the CBD
petition cites the IUCN's Green Status Assessment \3\ (cited on the
IUCN website as Smith et al. (2022) and published and referenced here
as Smith et al. (2023)) to provide information about threats to the
species, neither petition recognizes improvements to the status and
trends that were noted in the ASMFC (2019) (table 2) and Smith et al.
(2023) (table 3). For example, as of 2012, the ASMFC (2013) reported a
declining trend for the Northeast regional population (termed New
England under Smith et al. (2016, 2017)); however, as of 2017 (the
terminal year of the survey time series reported in the ASMFC (2019)),
the Northeast regional population trend was mixed (ASMFC 2019) (tables
1 and 2). Relying on data from the same time period evaluated in the
ASMFC (2019), Smith et al. (2023) described populations in this area
(identified by Smith et al. 2023 as the Mid-Atlantic: Northeast spatial
unit) as ``viable'' because populations were stable or increasing
(table 3). In the 2024 assessment issued by the ASMFC, the Northeast
population maintained a ``neutral'' status (ASMFC 2024a). The
information above indicates that when the complete set of available
data is considered, there has been improvement in the population status
and trends of regional populations from New Hampshire to Florida-
Atlantic, with the exception of New York; the petitions do not present
this information.
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\3\ The IUCN Green Status Assessment (<a href="https://www.iucnredlist.org/about/green-status-species">https://www.iucnredlist.org/about/green-status-species</a>) is a tool to
evaluates the recovery of species' populations, and measures their
conservation success. It serves as a complement to the IUCN Red List
Assessment.
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The status and trends of the Gulf of Maine, Northeast-Gulf, and the
Yucat[aacute]n Peninsula regional populations defined by Smith et al.
(2016, 2017) (table 1) have been described only qualitatively given the
lack of quantitative population data for these specific populations.
For these populations, both petitions again rely upon obsolete
descriptions of the status of these populations from 2012 and earlier
(i.e., Smith et al. 2016, 2017).
[[Page 7452]]
The CBD petition, despite citing Smith et al. (2023), does not
incorporate new information on the status of these populations provided
by this reference. For example, referring to studies conducted in Maine
between 2001 to 2010, Smith et al. (2016, 2017) described the Gulf of
Maine regional population as small and fragmented, with limited to no
spawning; in contrast, Smith et al. (2023) described the ``most
likely'' status for the Gulf of Maine regional population (identified
as the Northern Gulf of Maine spatial unit by Smith et al. 2023) as
``functional,'' which they assigned to populations they consider to be
``viable (i.e., not threatened with extinction)'' and functioning
appropriately from an ecological standpoint (table 3) (Akcakaya et al.
2018; Smith et al. 2023). Similarly, for the Northeast-Gulf regional
population, which consists of Atlantic HSCs found in the coastal waters
of western Florida, Alabama, Mississippi, and Louisiana, Smith et al.
(2016, 2017) identified a decreasing population trend; however, Smith
et al. (2023), described the ``most likely'' status of this population
(identified as the Eastern Gulf (Florida Southwest and Florida West)
and North Central Gulf spatial units by Smith et al. 2023) as
``viable'' or ``functional'' depending on spatial unit (table 3). For
the Yucat[aacute]n regional populations, information provided indicates
the species was recognized by Mexico as ``in danger of extinction'' in
1994 (Botton et al. 2021; Smith et al. 2023; Zald[iacute]var-Rae et al.
2009). Smith et al. (2016, 2017) relied upon studies completed between
the 1960s to the early 1990s and described this population as
fragmented, with decreased population sizes. However, newer information
in Smith et al. (2023) described the ``most likely'' status of the
Yucat[aacute]n areas as ``viable,'' which they assigned to populations
they considered not to be threatened with extinction (e.g., stable or
increasing) but not fully recovered from previous declines (table 3)
(Akcakaya et al. 2018; Smith et al. 2023).'' Given the above, while
information provided by the petitions indicates the status and trends
of these regional populations have been impacted historically, that
same information does not support claims that these populations are
currently declining (Smith et al. 2023).
Table 1--Summary of Population Trends for the Atlantic Horseshoe Crab Described by Smith et al. (2016, 2017) in
Comparison to the ASMFC (2013)
----------------------------------------------------------------------------------------------------------------
Smith et al. (2016, 2017) regions: Smith et al. (2016,
subregions 2017) trends ASMFC regions ASMFC (2013) status/trends
----------------------------------------------------------------------------------------------------------------
Gulf of Maine (northern ME (Hogs Decreasing.............. N/A..................
Bay)-northern NH (Great Bay)).
Mid-Atlantic: New England (southern Decreasing.............. Northeast (NH-RI).... Poor/Declining.
NH (south of Great Bay)-RI).
Mid-Atlantic: New York (CT-NY)..... Decreasing.............. New York (CT-NY)..... Neutral/Declining.
Mid-Atlantic: Delaware Bay (NJ-VA, Stable.................. Delaware Bay (NJ-VA, Neutral/Stable.
including Delaware Bay). including Delaware
Bay).
Southeast (NC-GA).................. Increasing.............. Southeast (NC- Good/Increasing.
Florida-Atlantic................... Uncertain............... Florida, Atlantic).
Northeast-Gulf (west coast of FL- Decreasing.............. N/A..................
LA).
Yucat[aacute]n Peninsula (Mexico).. Uncertain............... N/A..................
----------------------------------------------------------------------------------------------------------------
List of abbreviations used in table 1: CT-Connecticut; FL-Florida; GA-Georgia; LA-Louisiana; ME-Maine; NH-New
Hampshire; NJ-New Jersey; NY-New York; SC-South Carolina; VA-Virginia; N/A-Not Applicable.
Table 2--The Status and Trends of the Atlantic HSC According to Smith et al. (2016, 2017) and the ASMFC (2019,
2024a)
----------------------------------------------------------------------------------------------------------------
Smith et al. (2016, 2017) Smith et al. (2016, ASMFC (2019) status/ ASMFC (2024a) status/
regions: subregions 2017) trends ASMFC regions trends trends
----------------------------------------------------------------------------------------------------------------
Gulf of Maine (northern ME Decreasing......... N/A.............
(Hogs Bay)-northern NH
(Great Bay)).
Mid-Atlantic: New England Decreasing......... Northeast (NH- Neutral/Mixed....... Neutral/Mixed.
(southern NH (south of Great RI).
Bay)-RI).
Mid-Atlantic: New York (CT- Decreasing......... New York (CT-NY) Poor/Decreasing..... Poor/Decreasing.
NY).
Mid-Atlantic: Delaware Bay Stable............. Delaware Bay (NJ- Neutral/Mixed....... Good/Increasing.
(NJ-VA, including Delaware VA, including
Bay). Delaware Bay).
Southeast (NC-GA)............ Increasing......... Southeast (NC- Good/Increasing..... Good/Increasing.
Florida-Atlantic............. Uncertain.......... Florida,
Atlantic).
Northeast-Gulf (west coast of Decreasing......... N/A.............
FL-LA).
Yucat[aacute]n Peninsula Uncertain.......... N/A.............
(Mexico).
----------------------------------------------------------------------------------------------------------------
See table 1 for list of abbreviations.
[[Page 7453]]
Table 3--The Status of the Atlantic HSC According to Smith et al. (2023)
------------------------------------------------------------------------
Smith et al. (2023) spatial units \a\ Status
------------------------------------------------------------------------
Northern Gulf of Maine.................... Functional.\b\
Mid-Atlantic: Northeast................... Viable.\c\
Mid-Atlantic: New York.................... Present.\d\
Mid-Atlantic: Delaware Bay................ Viable.
Southeast: South Carolina and Georgia..... Viable.
Southeast: North Florida.................. Viable.
Florida Atlantic: Florida Indian River.... Viable.
Florida Atlantic: Florida South........... Viable.
Eastern Gulf: Florida Southwest........... Viable.
Eastern Gulf: Florida West................ Functional.
North Central Gulf........................ Viable.
Western Yucat[aacute]n Peninsula.......... Viable.
Northern Yucat[aacute]n Peninsula......... Viable.
Eastern Yucat[aacute]n Peninsula.......... Viable.
------------------------------------------------------------------------
\a\ Smith et al. (2023) defined spatial units by considering Smith et
al. (2016, 2017) Atlantic HSC regional populations, as well as the
spatial distribution of genotypic or phenotypic characteristics, major
threats, and management/conservation efforts of Atlantic HSC.
\b\ Functional: a population that is ``viable (see below)'' and
``functions appropriately from an ecological standpoint (Smith et al.
2023).''
\c\ Present: a population that ``occurs in the wild but is threatened,
or near threatened, and declining (Smith et al. 2023).''
\d\ Viable: a population that ``is not threatened (e.g., stable or
increasing) (Smith et al. 2023).''
The Friends of Animals petition relied only on Smith et al. (2016)
to define the status and trends of the species. The CBD petition, in
addition to citing Smith et al. (2016, 2017) cites additional
demographic studies completed on localized populations to further
support its claims that the species is declining and at risk of
extinction. A number of the reports are based upon research completed
on data collected more than 10 years ago (Beekey and Mattei 2015;
Novitsky 2015; Rudloe 1982; Smith et al. 2017; Smith et al. 2009;
Tanacredi and Portilla 2015), and, therefore, are reflective of the
historic population status and trends of the species (i.e., 2012 or
prior). As additional information and research on the Atlantic HSC has
been collected since 2012, the findings of these earlier reports have
been updated and/or replaced by newer studies and findings on the
status and trends of the Atlantic HSC (e.g., ASMFC 2019, 2022a, 2024a;
Hallerman and Jiao (2021); Smith et al. 2023). However, the petitions
do not discuss these newer findings. For example, as noted above, the
CBD petition provides literature (i.e., ASMFC 2019 and Smith et al.
2023) that addresses more recent (i.e., through 2022) changes in the
status and trends of most regional Atlantic HSC populations (table 2),
which are primarily positive, with the exception of New York; however,
the petition does not discuss these updates in its assessment of the
species status or trends. As a result, the CBD petition's reliance on
obsolete information, despite acknowledging other sources of new
information, results in the petition providing an unbalanced
representation of the relevant facts.
The CBD petition cites two more recent studies to further support
its claims of declines in the Delaware Bay (i.e., Garmoe et al. 2021)
and Southeast (i.e., Hunt 2022) regional Atlantic HSC populations.
Garmoe et al. (2021) report on results of the Delaware Inland Bays
Volunteer Horseshoe Survey completed in 2020. Although the 2020 survey
detected a decline in observed spawning Atlantic HSCs in inland
Delaware Bay relative to 2019 (i.e., HSC spawning density of 6.78 in
2019 to 2.93 in 2020), according to Garmoe et al. (2021), the observed
numbers ``were still near the approximate median (i.e., Atlantic HSC
spawning density of 3.02) of spawning populations recorded over the
last 6 years.'' Garmoe et al. (2021) also noted that the reported
decline in 2020 may have also been due to the limited availability of
personnel to conduct the surveys due to the COVID-19 pandemic. Hunt
(2022) provides an overview of purported Atlantic HSC declines in South
Carolina. Citing Niles (2021) and Niles et al. (2021), Hunt (2022)
states that, similar to the Delaware Bay, HSC egg densities have
decreased by approximately 80 percent in the past three decades in
South Carolina. To support this claim, Hunt (2022) refers to increases
in biomedical Atlantic HSC harvest levels in South Carolina between
1991 to 2021 (i.e., from 5,000 crabs to 150,000 crabs), as well as
local accounts of declining Atlantic HSC populations along specific
areas of South Carolina from 2019 or earlier. For example, Hunt (2022)
notes that South Carolina Department of Natural Resources and the U.S.
Fish and Wildlife Service, based on beach survey and tagging reports
from 2017 through 2019, indicated declines in HSC sightings (e.g.,
hundreds of HSCs to four or five as of 2019) on priority spawning
grounds (e.g., Marsh and Hilton Head Islands, Turtle Island Wildlife
Management Area) that had experienced heavy harvest. Additionally, Hunt
(2022) acknowledges several local accounts of Atlantic HSC population
declines in South Carolina since 2004, with one account noting a
decline in the number of tagged Atlantic HSCs returning to spawning
beaches on Harbor Island, South Carolina, between 2004 and 2018, and
another account noting a decline in all wildlife, including Atlantic
HSC, in Beaufort County, South Carolina.
Based on our review of the information cited in the petition and in
our files, the information provided by Garmoe et al. (2021) and Hunt
(2022) are not representative of the status and trends of the Delaware
Bay and Southeast Atlantic HSC regional populations as a whole.
Specifically, as provided in table 2, the Delaware Bay regional
population consists of Atlantic HSC populations along New Jersey,
Delaware, Maryland, and Virginia coastlines (including the Delaware
Bay), with the ASMFC estimating the Delaware Bay regional population
abundance by collating data from three trawl surveys (i.e., Virginia
Tech (VT), Delaware Adult, and New Jersey Ocean) operating within this
geographical range (ASMFC 2021; ASMFC 2022a; Hallerman and Jiao 2021).
The VT trawl survey operates from Atlantic City, New Jersey, to
Wachapreague, Virginia, including the lower Delaware Bay; the Delaware
Adult trawl survey operates in the upper and lower Delaware Bay; and
the New Jersey Ocean trawl survey operates throughout the entire coast
of New Jersey, extending from shore to waters beyond 12 nautical miles
(1,852 meters) (ASMFC 2021; ASMFC 2022a; Hallerman and Jiao 2021; see
below and Factor (D), Inadequacy of Existing Regulatory Mechanisms, for
detailed information on the geographical extent of each survey). The
study completed by Garmoe et al. (2021) is representative of only two
bays found within the state of Delaware (i.e., Rehoboth and Indian
River Bays), and the trends in Atlantic HSC abundance detected by
Garmoe et al. (2021) are not reflective of the larger Delaware Bay
regional population, (i.e., coastal waters ranging from New Jersey
through Virginia (including the Delaware Bay)) which most recently has
been determined by the ASMFC (2024a) to be increasing (table 2). The
Southeast regional population consists of Atlantic HSC populations
along the coasts of North Carolina, South Carolina, Georgia, and
Florida. Hunt (2022) considers only Atlantic HSC populations in South
Carolina, and the population trends identified in this report are not
reflective of the larger Southeast regional population, which most
recently has been determined by the ASMFC (2024a) to be increasing
(table 2). Based on this, we find that neither Garmoe et al. (2021) nor
Hunt (2022) provides sufficient scientific or
[[Page 7454]]
commercial evidence to support the petition's claims that the current
status and trends for the Delaware Bay and Southeast Atlantic HSC
regional populations as a whole are poor and in decline.
The CBD petition identified specific population metrics (e.g., low
abundance of newly mature females, low egg densities, decrease in the
number of spawning Atlantic HSCs) as additional evidence of a range-
wide decline in the Atlantic HSC population. However, review of the
information cited in the petition indicates that the identified metrics
do not apply to the species range-wide but, instead, are specific to
the Delaware Bay regional population as defined by the ASMFC (see table
2). Although the population metrics identified by the petition do not
support the petition's claims of a range-wide decline, we evaluated
whether the demographic information for the Delaware Bay regional
population may provide evidence of declines because information
provided and found in our files suggests that the Delaware Bay may be
of biological significance to the species (see Species Description
section).
The CBD petition identifies the recent decrease in the Delaware Bay
regional population's abundance of newly mature Atlantic HSC females as
an indicator of the species' poor health and status. The petition
claims that despite the ASMFC's prohibition on the harvest of female
Atlantic HSCs from the Delaware Bay regional population from 2013
through 2022 (ASMFC 2012, 2022b), the abundance of newly mature female
Atlantic HSCs was zero in 2019 and 2020 (Lipcius 2022). Lipcius (2022)
cites Hallerman and Jiao (2021) as the basis for its estimate of zero
newly mature females. Our review of Hallerman and Jiao (2021) indicates
that although zero newly mature females were detected in 2019 and 2020,
this estimate was only for the portion of the HSC trawl survey
completed in the lower Delaware Bay. The other portion of the HSC trawl
survey occurred in the coastal Delaware Bay area, which Hallerman and
Jiao (2021) delineated as the area in the Atlantic Ocean extending from
shore (including the mouth of the Delaware Bay) out to 12 nautical
miles (1,852 meters) and from 39[deg]20' N (Atlantic City, New Jersey)
to 37[deg]40' N (slightly north of Wachapreague, Virginia). In the
coastal Delaware Bay survey area, Hallerman and Jiao (2021) estimated
the population of newly mature females to be 77,000 in 2019, and
134,000 in 2020. While Hallerman and Jiao (2021) acknowledge these are
the lowest newly mature female population estimates in the survey's
time series (i.e., 2002 through 2020), the authors note that over this
timeframe, population trends of newly mature females are variable.
Additionally, based on survey findings, Hallerman and Jiao (2021)
concluded that from 2002 to 2020, there was an increase in the
estimated mature male and female Atlantic HSC populations in the survey
region (e.g., within the coastal Delaware Bay survey area:
approximately 4,959 mature females and 11,584 mature males in 2002
versus approximately 10,803 mature females and 31,546 mature males in
2020). The petition does not acknowledge these additional findings of
the Hallerman and Jiao (2021) report, which show that the Delaware Bay
regional population has variable trends depending on life stage and is
not necessarily declining. Additionally, review of information in our
files indicates that the ASMFC, using a Catch Multiple Survey Analysis
(CMSA), which incorporates data collected by the VT, New Jersey Ocean,
and Delaware Adult trawl surveys (tables 1 and 2; refer to Factor (B)
for additional information on the CMSA), reported an increase in the
Delaware Bay regional population in its 2024 Atlantic HSC stock
assessment (ASMFC 2024a). The total mature (newly mature plus mature)
female abundance increased from an estimated 6.1 million Atlantic HSCs
in 2003 (beginning of the CMSA's time series), to 10.7 million in 2020,
to 16.2 million female Atlantic HSCs in 2022. For total mature (newly
mature plus mature) male abundance, the ASMFC estimated 15.2 million
Atlantic HSCs in 2003, 18.8 million in 2020, and 40.3 million Atlantic
HSCs in 2022 (ASMFC 2024a). Given the above, we find that, based on the
information presented in the petition and readily available in our
files, a reasonable person conducting an impartial scientific review
would conclude that abundance of mature male and female Atlantic HSCs
in the Delaware Bay regional population has improved since 2003 and
continues to improve. As a result, there is not sufficient credible
scientific or commercial information that supports the petition's
claims that low abundance of newly mature females is indicative of a
decline in the Delaware Bay regional population.
The CBD petition claims that the decline in spawning Atlantic HSCs
and associated egg densities on Delaware Bay spawning beaches are
population metrics that are indicative of a declining population trend.
The CBD petition states that historical data on egg density and number
of spawning HSCs provide insight on the poor condition of the Delaware
Bay regional population. For example, the petition cites Smith, J.A. et
al. (2022), who conclude that ``past and current measurements of
horseshoe crab eggs in the bay indicate that abundance in the 1980s was
an order of magnitude greater'' (e.g., between 1985 and 1987: estimated
average egg density in Delaware Bay = 156,600 HSC eggs/m\2\; between
2015 and 2021, average egg density in Delaware Bay = 10,243 HSC eggs/
m\2\). However, Smith, J.A. et al. (2022) also conclude that between
2000 and 2021, there is an increasing trend in annual point estimates
of egg densities (i.e., model-based estimates of approximately 2,500
HSC eggs/m\2\ in 2000, to 9,000 HSC eggs/m\2\ in 2021), with surface
egg densities projected to approach the 1980 baseline abundances (e.g.,
100,000/m\2\) in 2065 (Smith, J.A. et al. 2022). The CBD petition also
references the Delaware Bay Horseshoe Crab Spawning Survey reports
conducted from 1990 (the first year in which the spawning surveys
began) through 2022, as evidence of declines in the number of spawning
HSC in Delaware Bay. The petition states that in 1990, 1.2 million
Atlantic HSCs spawned in Delaware Bay (Finn et al. 1990) and in 2020,
this number decreased to 335,211 (Swan et al. 2020). The petition
provides no additional information on the 2021 or 2022 Delaware Bay
Horseshoe Crab Spawning Survey reports. However, our review of the
information provided in the reports from 1990 through 2022 (Finn et al.
1990; Swan 2022; Swan et al. 1991, 1992, 1993, 1997, 1998, 1999, 2000,
2001, 2002, 2003, 2004, 2005, 2006, 2007, 2008, 2009, 2010, 2011, 2012,
2013, 2014, 2015, 2016, 2017, 2018, 2019, 2020, 2021) indicates that,
contrary to the petition's claims, Atlantic HSC spawning abundance in
the Delaware Bay, while variable throughout the time series, has shown
an overall increasing trend (table 4). Although 2020 was one of the
lowest estimated numbers of spawning Atlantic HSC, the petition fails
to acknowledge that although spawning numbers were lower than those
reported in 1990, only 6 of the standard 25 beaches were surveyed in
2020 due to the COVID pandemic (Swan et al. 2020). As a result, the
2020 survey report concluded that the data collected in 2020 are not an
accurate depiction of spawning activity and should not be used to
compare past years spawning trends (Swan et al. 2020). The petition's
failure to acknowledge that the reason for the decrease in abundance in
2020 relative to previous years in the time series was
[[Page 7455]]
due to the smaller number of beaches surveyed, as well as the 2021 and
2022 Delaware Bay Spawning Survey reports, which indicate a rebound in
spawning Atlantic HSC abundance (table 4), results in an inaccurate and
unbalanced representation of the data, and, in turn, an inaccurate view
of the health of the spawning population of Atlantic HSCs in Delaware
Bay. Given the above, we find that, based on the information presented
in the petition, a reasonable person conducting an impartial scientific
review would not conclude that there is a decrease in egg densities or
abundance of spawning Atlantic HSCs in the Delaware Bay, which, as
noted above, may be of biological significance to the species (see
Species Description section). As a result, there is not sufficient
credible scientific or commercial information that supports the
petition's claims that the Delaware Bay regional population metrics
point to potential declines in the species as a whole.
Table 4--Delaware Bay Horseshoe Crab Spawning Survey's Total Estimated
Number of Spawning Atlantic HSC From 1990 Through 2022
[Annual estimates are calculated by combining counts of spawning
Atlantic HSCs on surveyed beaches in Delaware and New Jersey.]
------------------------------------------------------------------------
Estimated total number of
Year spawning HSCs
------------------------------------------------------------------------
1990......................................... 1,139,658
1991......................................... 1,152,004
1992......................................... 432,218
1993......................................... 396,174
1994......................................... 104,000
1995......................................... 112,912
1996......................................... 466,124
1997......................................... 703,846
1998......................................... 528,006
1999......................................... 1,277,533
2000......................................... 1,324,684
2001......................................... 1,214,726
2002......................................... 1,299,948
2003......................................... 1,206,521
2004......................................... 1,493,033
2005......................................... 1,307,429
2006......................................... 1,885,355
2007......................................... 1,947,372
2008......................................... 1,578,618
2009......................................... 2,049,200
2010......................................... 1,558,217
2011......................................... 1,997,203
2012......................................... 1,291,569
2013......................................... 1,778,939
2014......................................... 1,401,580
2015......................................... 1,815,426
2016......................................... 2,461,704
2017......................................... 2,039,709
2018......................................... 2,865,087
2019......................................... 3,397,246
2020......................................... 679,360
2021......................................... 1,846,490
2022......................................... 2,608,111
------------------------------------------------------------------------
References: Finn et al. 1990; Swan 2022; Swan et al. 1991, 1992, 1993,
1997, 1998, 1999, 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2007,
2008, 2009, 2010, 2011, 2012, 2013, 2014, 2015, 2016, 2017, 2018,
2019, 2020, 2021.
With the exception of the New York regional population, the most
recent information (ASMFC 2024a; Smith et al. 2023) indicates that
population trends across the species' range are showing signs of
stability or improvement. Although the status of the New York regional
population has remained poor over the last 10 years (table 1 and 2),
there is no information provided in the petitions or in our files to
suggest that this region is a significant portion of the species'
range, such that listing may be warranted. As provided in the Species
Description, the available genetic evidence does not provide
substantial information indicating that there is a high degree of
genetic differentiation between the New York regional population and
other regional populations (i.e., Northeast, Delaware Bay, Southeast)
located along the Atlantic coast of the species' range that may
indicate genetic significance to the species viability (King et al.
2015; Smith et al. 2016, 2017). King et al. (2015) reported the lowest
pairwise estimates of genetic differentiation between Atlantic HSCs
from the New York and Delaware Bay regional population units,
indicating a high degree of relatedness. Corroborating the findings of
King et al. (2015), the ASMFC (2022a) reported that 44 percent of the
HSCs harvested for bait in New York's Long Island Sound have genotypes
indicating that they originated from the Delaware Bay. The ASMFC (2019)
also noted that both tagging and commercial catch data suggest a
greater rate of movement from Delaware Bay to New York than from New
York to Delaware Bay, indicating that the Delaware Bay regional
population likely serves as a source population for the New York
regional population. Additionally, Atlantic HSCs that comprise the New
York regional population inhabit coastal waters, bays, and sounds from
New York through Connecticut, spawning on the shorelines of these
respective states (ASMFC 2019, 2024a; Smith et al. 2017). Across this
range, there is no evidence provided in the petition or in
[[Page 7456]]
our files that indicates that the shorelines or coastal waters, bays,
and sounds from New York through Connecticut contain unique ecological
features necessary for Atlantic HSC growth, reproduction, or rearing
(see Species Description for additional information on life history)
that are not already present in other portions of the species' range
(ASMFC 2019; Smith et al. 2016, 2017). Additionally, review of
information cited in the petition and in our files also provides no
evidence that the Atlantic HSCs comprising the New York regional
population are exposed to unique environmental parameters (e.g.,
temperature, salinity, tides) that would introduce unique adaptions not
seen in other regional populations across the species' range (ASMFC
2019, 2024a; Smith et al. 2017). Based on the above findings of King et
al. (2015), Smith et al. (2016, 2017), and the ASMFC (2019, 2022a) as
well as information provided in the Species Description, there is no
information provided by the petitions or in our files to suggest that
the New York regional population may be a significant portion of the
Atlantic HSC's range.
Taking into consideration the information provided above, the
petitions rely on obsolete and incorrect information to infer the
current status and trends of the species. As a result, we do not find
that the demographic information presented in the petitions constitutes
credible scientific information that indicates the Atlantic HSC is in
decline and may be in danger of extinction throughout all or in a
significant portion of the species' range.
ESA Section 4(a)(1) Factors
The petitions assert that L. polyphemus is threatened by four of
the five ESA section 4(a)(1) factors: (A) the present or threatened
destruction, modification, or curtailment of habitat or range; (B)
overutilization for commercial, recreational, scientific, or
educational purposes; (D) inadequacy of existing regulatory mechanisms;
and (E) other natural or manmade factors affecting its continued
existence. In the following sections, we discuss information presented
in the petitions and in our files and present our assessment of whether
the petitioned action may be warranted. Factor (C) (disease or
predation) is not identified as a primary threat to the species in the
petitions, and we have no information in our files indicating that
disease or predation are posing a threat Atlantic HSCs such that they
are contributing to extinction risk for the species.
(A) The Present or Threatened Destruction, Modification, or Curtailment
of Its Habitat or Range
The petitions assert that Atlantic HSC habitat is being threatened
by sea-level rise associated with climate change and provide general
information about climate-related projections as evidence that spawning
habitat is threatened (IPCC 2014; NOAA 2022). In describing the
species-specific climate change related risks, both petitions cite to
the NOAA Fisheries Vulnerability Assessment on the Northeast U.S.
Continental Shelf (Hare et al. 2016), which characterizes the
vulnerability of this species as ``very high.'' This assessment
reviewed life history traits and population information of 82 different
species from the Northeast U.S. shelf and ranked the exposure of the
species to the stressor (i.e., climate change and decadal variability),
as well as the species' sensitivities to that stressor. The assessment
defines vulnerability ``as the likelihood that the productivity or
abundance of the species could be impacted by climate change.'' Using
population information from ASMFC's 2013 stock assessment (ASMFC 2013),
Hare et al. (2016) rated the Atlantic HSC's overall climate
vulnerability as ``very high,'' linking the species' climate exposure
and biological sensitivities ratings to possible changes to and
reliance on intertidal spawning habitat, respectively. As indicated in
the assessment, this was a broad examination based upon expert opinion
of whether climate change is likely to impact fish and invertebrate
species where over half of the species assessed were ranked ``high'' or
``very high'' (i.e., likely to experience productivity or abundance
impacts as a result of climate change stressors). Although this
assessment provides a vulnerability rating for each species, the
assessment does not provide details on the likely magnitude of climate-
related impacts on species' populations, nor does it provide
information related to the species' extinction risk as a result of this
stressor. Similar to the Hare et al. (2016) assessment, Smith et al.
(2023) indicate that widespread climate-related alterations to Atlantic
HSC spawning habitat are likely to have impacts on Atlantic HSCs.
Impacts are anticipated to vary regionally; while range shifts are
possible, the greatest impacts may be in areas where the shoreline
lacks space for landward migration (Smith et al. 2023). However, Smith
et al. (2023) note that the species could use habitats other than sandy
beaches for spawning or adapt to different conditions for spawning
(e.g., use deeper water). Smith et al. (2023) even suggested that sea-
level rise could create new habitat for Atlantic HSC, noting an example
in Mexico where Atlantic HSCs spawn and develop in coastal lagoons that
were created from flooding pre-existing wetlands. Overall, Smith et al.
(2023) note that the ``net result upon population status is uncertain
owing to a lack of reliable projections, the inherent adaptability of
horseshoe crabs to varied habitats at a local level, and the potential
for phenological shifts to affect communities in complex and unknown
ways.''
Citing to the IUCN Green Status Assessment of the Atlantic HSC
(cited on the IUCN website as Smith et al. (2022) and published as
Smith et al. (2023); see Abundance, Status, and Population Trends
section) the CBD petition states the species has a ``Recovery
Potential'' of zero due to the pressures of climate change on habitat.
Smith et al. (2023) note improvements in HSC populations in comparison
to the past, but also note uncertainty about future growth.
Improvements in population status were attributed to the positive
effects of harvest regulations and habitat protection throughout large
portions of the species' range. The Atlantic HSC received a ``Green
Score'' of 69 percent, on a scale to 100, where 100 equals fully
recovered range-wide. Smith et al. (2023) estimate that the ``Green
Score'' will not change from the present (69) in 100 years (in other
words, as cited in Smith et al. (2022), the ``Recovery Potential'' is
zero) but also note that the ``future effects of climate change and
development make the Recovery Potential [score] highly uncertain.''
Taking into account information on environmental and anthropogenic
threats to each spatial unit, as well as information provided in the
ASMFC (2019), Smith et al. (2023) described the most probable current
status of 13 out of the 14 spatial units of Atlantic HSC as either
``viable'' (i.e., not threatened with extinction) or ''functional;''
the exception was the ``Mid-Atlantic: New York'' spatial unit (table
3). While the Smith et al. (2023) assessment indicates that climate
change and other threats may limit population growth in the future
(i.e., 100 years), it does not provide evidence that the species is
declining throughout its range as a result of these threats.
The CBD petition points to a number of other factors it claims
contribute to habitat loss and degradation, including urban development
and harmful algal blooms. As Atlantic HSC habitat used for foraging and
the completion of essential life functions (e.g., spawning,
development, overwintering) is located
[[Page 7457]]
within coastal and intertidal areas, the petition asserts that coastal
development, including habitat alterations to support coastal
urbanization (e.g., beach renourishment, sand mining, shoreline
hardening, beach armoring, creation of impervious surfaces), can
eliminate, modify, and/or fragment Atlantic HSC habitats such that they
are no longer suitable for the completion of these essential life
functions. The petition supports this claim by citing Hartley and
Weldon (2020), Hopkinson and Vallino (1995), Jackson et al. (2015),
Miththapala (2013), Paule-Mercado et al. (2017), Pearce (2019), Smith
et al. (2016), Qiu et al. (2020), Smith, J.A. et al. (2020);
Zald[iacute]var-Rae et al. (2009). Most of the sources cited focus
largely on generalized impacts to coastal ecosystems from urban and
coastal developmental activities (Hartley and Weldon 2020; Hopkinson
and Vallino 1995; Jackson et al. 2015; Miththapala 2013; Paule-Mercado
et al. 2017; Pearce 2019; Smith et al. 2016; Qiu et al. 2020; Smith,
J.A. et al. 2020; and Zald[iacute]var-Rae et al. 2009). While coastal
development has the potential to negatively impact Atlantic HSC
habitat, our review of these sources found that none provide specific
information indicating how and where coastal development is impacting,
or is anticipated to impact, Atlantic HSC habitat.
Only three sources (Jackson et al. 2015; Smith, J.A. et al. 2020,
and Zald[iacute]var-Rae et al. 2009) referenced in the CBD petition
pertain to specific impacts to Atlantic HSC habitat from coastal
development and associated alteration processes (i.e., beach
nourishment, bulkhead placement, urbanization) in localized areas
throughout the species' range (i.e., Delaware Bay and Yucat[aacute]n
Peninsula, Mexico). For example, the information provided by
Zald[iacute]var-Rae et al. (2009) on the Atlantic HSC in the
Yucat[aacute]n Peninsula, Mexico, indicates that human population
growth in coastal cities along the Yucat[aacute]n Peninsula have caused
the disappearance of some nesting and nursery habitats for Atlantic
HSCs, as well as the degradation of some adjacent water bodies due to
pollution. However, Zald[iacute]var-Rae et al. (2009) indicate that
important areas of Atlantic HSC habitat still remain. For example,
since 2002, offshore Atlantic HSC habitat, as well as Atlantic HSC
nesting and nursery areas have been protected in the areas of Laguna de
Terminos, Celestun, Rio Lagartos, Isla Arena, and Holbox pursuant to
Mexico's federal ``Areas for the Protection of Flora and Fauna or
Biosphere Reserves'' managed by Mexico's National Commission for
Natural Protected Areas (Zald[iacute]var-Rae et al. 2009). Jackson et
al. (2015) assessed the influence of bulkhead configuration on Atlantic
HSC use of estuarine beaches in Delaware Bay and found that bulkheads
installed along Delaware Bay shorelines did not prevent Atlantic HSC
from spawning in the area. With respect to beach renourishment, Smith,
J.A. et al. (2020), assessed the impacts of a multi-year beach
restoration project on Atlantic HSC spawning habitat in the Delaware
Bay and found that beach restoration can improve habitat quality for
Atlantic HSC. Taking into consideration the above, the petitions do not
provide sufficient scientific or commercial evidence to support the
claims that coastal development, including habitat alteration to
support coastal urbanization, has or will destroy Atlantic HSC habitat
such that populations throughout or in a significant portion of the
species' range may be threatened. As described in the Species
Description and the Abundance, Status, and Population Trends sections,
despite past alterations to coastal habitat or differences in habitat
quality, populations are largely stable or increasing, including those
in Delaware Bay and the Yucat[aacute]n Peninsula.
The CBD petition identifies harmful algal blooms, such as red
tides, as threatening the habitat of Atlantic HSCs. Although the
petition cites incidences of harmful algal blooms that have occurred in
portions of the species' range, the petition does not provide evidence
of specific Atlantic HSC habitat features that have been degraded,
modified, or lost as a result of periodic algal blooms. Instead, the
petition relies on several specific regional events identified in
Brockmann et al. (2015) and Smith et al. (2017) and the number of
Atlantic HSCs that were or that may have been affected in each event to
support its claims. For example, citing Smith et al. (2017), CBD claims
that in 1999, ``an estimated 100,000 adult L. polyphemus died in the
northern part of Florida's Indian River and the southern portion of
Mosquito Lagoon due to a red tide event.'' However, upon review, Smith
et al. (2017) actually state that, ``an estimated 100,000 adult L.
polyphemus died in the northern part of the Indian River and the
southern portion of Mosquito Lagoon (Scheidt and Lowers 2001), although
a link to algal blooms or pollution could not be established.''
Further, when reviewing the threats of eutrophication and red tides,
Smith et al. (2017) found little evidence of these threats having a
significant impact on the Atlantic HSC. The CBD petition, citing Totoiu
and Lopez (2022), also claims that harmful algal blooms have been
increasing in frequency and severity in portions of the Atlantic and
Gulf coasts where Atlantic HSCs occur. However, our review of Totoiu
and Lopez (2022) indicates that it provides no information on Atlantic
HSCs and instead is focused specifically on harmful algal bloom events
in Florida's Lake Okeechobee. The CBD petition also cites Brockmann et
al. (2015) in support of its claims. Based on our review of Brockmann
et al. (2015), we found only the following statement pertaining to
Atlantic HSC and red tides: ``Water quality issues may be particularly
important in Florida where red tides are common in nearshore
communities particularly in southwest Florida where young horseshoe
crabs are one of the affected species (Galtsoff 1949).'' No other
information is provided in Brockmann et al. (2015) on this topic or its
impact to Atlantic HSC habitat. Taking into consideration the above,
the petition does not provide sufficient scientific or commercial
evidence to support the petition's claims that harmful algal blooms
have or will destroy Atlantic HSC habitat such that populations range-
wide or in a significant portion of the species' range may be
threatened.
The CBD petition identifies impingement, dredging and deepening of
navigation channels, oil spills, and exposure to urban pollutants from
industrial, municipal, and nonpoint sources as threatening Atlantic HSC
habitat. However, the literature cited in the petition to support these
claims provides no specific evidence that these factors are causing the
loss, destruction, or modification of habitat. As some of the
petition's assertions and cited references are specific to the
potential effects of these factors to the species, we discuss those
assertions further under Factor (E) Other Natural or Manmade Factors.
In summary, it is reasonable to predict that some of the habitat-
related threats identified by the petitions may result in some
localized changes to the habitat of Atlantic HSC. However, the
petitions did not present substantial scientific information that the
scale and scope of these threats indicate that the species may be
impacted throughout all or in a significant portion of its range now or
in the foreseeable future. Thus, sufficient scientific or commercial
information is not presented or is not otherwise available in our files
indicating there is present or threatened destruction, modification, or
curtailment of the
[[Page 7458]]
Atlantic HSC's habitat or range such that a reasonable person
conducting an impartial scientific review would conclude that listing
may be warranted.
(B) Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes
The petitions identify overutilization for commercial and
scientific purposes as a major threat to Atlantic HSCs. The species is
harvested for bait, its blood, and the marine life/aquarium trade, and
is also captured incidentally as bycatch in commercial gillnet, dredge,
and trawl fisheries (ASMFC 2019; Smith et al. 2017, 2023).
The petitions cite the historical overuse of Atlantic HSC as
fertilizer and feed and the current harvest of Atlantic HSC in
commercial fisheries ``as evidence that the HSC has, and continues to
be overutilized for commercial purposes.'' The petitions assert there
is overutilization of the species due to harvest specifications set
along the U.S. eastern seaboard (i.e., Maine to Florida-Atlantic) by
the ASMFC pursuant to the 1998 Atlantic HSC ISFMP. The petitions claim
that continued harvest in the Atlantic HSC bait fishery, even with set
quotas, is resulting in the commercial overutilization of the species
and that commercial harvest ``is not sustainable and threatens overall
species survival.''
While we agree with statements in the petitions that historical
harvest of Atlantic HSCs between the mid-19th to late 20th centuries
resulted in the significant reduction of Atlantic HSC populations along
the U.S. Eastern Seaboard, neither petition provides substantial
commercial or scientific information to support the claim that Atlantic
HSCs are currently being overutilized in the commercial bait fishery or
that this use may put the species at risk of extinction. Based on the
information in the petitions and in our files, the commercial harvest
of Atlantic HSC for bait occurs primarily in state waters of
Massachusetts, Connecticut, New York, Delaware, Maryland, Virginia, and
to a lesser extent Rhode Island and North Carolina, under the
management of the ASMFC and the respective states (ASMFC 1998, 2022d,
2023d; Smith et al. 2017, 2023). In other portions of the species'
range, harvesting for bait is minimal, prohibited, or absent (Smith et
al. 2017, 2023). While the petitions acknowledge that the ASMFC's 1998
Atlantic HSC ISFMP helped to slow the decline of Atlantic HSC
populations by instituting a cap on landings for the commercial bait
fishery, the petitions conclude that the ISFMP fails to protect the
long-term survival of the Atlantic HSC. Pursuant to the 1998 Atlantic
HSC ISFMP, the goal of the plan is ``to conserve and protect the
horseshoe crab resource to maintain sustainable levels of spawning
stock biomass to ensure its continued role in the ecology of coastal
ecosystems, while providing for continued use over time (ASMFC 1998).''
Our review of ASMFC regulations implemented over the past 26 years
indicates that the ASMFC is actively managing the species and
continuing to implement regulatory measures to help meet their stated
goals (e.g., state specific caps on Atlantic HSC landings, female
Atlantic HSC harvest prohibitions in the Delaware Bay region) (ASMFC
2000, 2001, 2004, 2006, 2008, 2010, 2012, 2022a, b, 2023b, d). We also
note that the IUCN has concluded that the overharvest of the species
has ``been corrected through active management intervention over much
of the range'' (Smith et al. 2016, 2017). Additionally, several other
sources (e.g., Okun 2012; Smith et al. 2009; Smith, J.A. et al. 2022))
recognize the success of the ASMFC's 1998 HSC ISFMP in managing the
Atlantic HSC population. Further, pursuant to the 1998 HSC ISFMP, some
states (e.g., Massachusetts, New York, Connecticut, New Jersey) also
have, and continue to implement, more restrictive harvest caps and/or
other regulatory specifications than those specified by the ASMFC
(ASMFC 2006, 2008, 2010, 2012, 2019, 2022d, 2023d; CTDEEP 2024; MADMF
2024; NJDEP 2024; NYSDEC 2024). Collectively, according to the
information cited in the petition and readily available in our files,
state and coastwide quotas implemented by the ASMFC over the last 26
years have never been exceeded (ASMFC 2000, 2001, 2004, 2006, 2008,
2010, 2012, 2022b, d, 2023b, d). Despite the continued commercial
harvest of Atlantic HSCs for bait along the U.S. eastern seaboard,
available population data do not support the conclusion that the level
of authorized harvest in the bait fishery is causing significant
population declines or that levels of harvest may pose a risk of
extinction to this species. Rather, available data indicate stable to
increasing population trends for most regional populations that are
managed by the ASMFC along the U.S. eastern seaboard (see Abundance,
Status, and Population Trends).
The CBD petition, citing Rudloe (1982) and Smith et al. (2017),
states that the Northeast-Gulf (United States) and Yucat[aacute]n
Peninsula (Mexico) regional populations, both outside the jurisdiction
of the ASMFC, are experiencing bait harvest pressures that are impeding
both populations' ability to recover from harvesting events that
occurred more than 30 years ago. The petition, however, provides no
information on the historical or current population size of either
regional population and limited information on the bait harvest
pressures experienced by these regional populations in the past 30
years. Our review of the information cited in the petition and
available in our files indicate little to no bait harvest in the
Northeast-Gulf Atlantic HSC regional population (identified by Smith et
al. 2023 as the North Central Gulf spatial unit), with Smith et al.
(2017, 2023) concluding that the bait fishery poses little to no threat
to Atlantic HSCs in this portion of the species' range. Along the
Yucat[aacute]n Peninsula, illegal harvest of Atlantic HSC as bait in
the octopus fishery has been documented (Smith et al. 2017, 2023;
Zald[iacute]var-Rae et al. 2009) despite Mexico's prohibition on the
harvesting of Atlantic HSCs. However, there is no information provided
in the petition or in our files that indicates the magnitude of illegal
harvesting or its impact on the continued existence of the Atlantic HSC
populations in the Yucat[aacute]n Peninsula (Smith et al. 2017, 2023;
Zald[iacute]var-Rae et al. 2009). Despite the Northeast-Gulf and
Yucat[aacute]n Peninsula, Mexico, regional populations experiencing
some level of bait harvest pressures, available population data do not
support the petition's claims that the level of harvest is causing
significant population declines or that levels of harvest may pose a
risk of extinction to this species. Rather, available data sources
(Smith et al. 2023) indicate stable to increasing population trends for
the Northeast-Gulf and Yucat[aacute]n Peninsula, Mexico, regional
populations (see Abundance, Status, and Population Trends; table 3).
The petitions identify biomedical harvest of Atlantic HSC as a
source of overutilization. In the United States, the biomedical
industry harvests Atlantic HSCs to extract blood for use in the
production and manufacturing of the Limulus Amebocyte Lysate (LAL)
test. The LAL test uses amebocytes harvested from Atlantic HSC blood to
detect endotoxins in vaccines or other medical devices before their
distribution for use. Both petitions claim that unsustainable
biomedical harvest (e.g., almost 1 million Atlantic HSCs in 2022) with
lethal and sublethal impacts, pre- and post-bleeding, on Atlantic HSCs
pose an urgent threat to the species' survival (Gauvry 2015;
Krisfalusi-Gannon et al. 2018; Liao et al. 2019; Marani et al. 2021;
World Health Organization 2023).
[[Page 7459]]
The petitions claim that the post-bleeding mortality rate of Atlantic
HSCs could range up to 30 percent and that mortality rates could be
even higher given deaths that occur throughout the biomedical
harvesting process (e.g., mortalities occurring during capture,
transportation, and handling) (Anderson et al. 2013; Gorman 2020;
Krisfalusi-Gannon et al. 2018; Leschen et al. 2010; Novitsky 2015). The
CBD petition further asserts that the ASMFC's continued use of a 15-
percent biomedical mortality rate in its estimation of Atlantic HSC
abundance in the Delaware Bay regional population results in inflated
population sizes, which in turn results in unsustainable harvest
specifications for this regional population.
Although the information provided in the petitions and in our files
confirms the petition's claims that biomedical harvest of Atlantic HSCs
has increased and that lethal and sublethal effects can occur to
Atlantic HSCs pre- or post-bleeding, the petitions address only the
studies with the highest post-bleeding mortality rates and, therefore,
provide an unbalanced and incomplete representation of the relevant
facts. For example, relying on the information cited in Anderson et al.
(2013) and Leschen and Corriea (2010), the petitions claim that post-
bleeding mortality rates to Atlantic HSC could be as high as 30
percent. Leschen and Corriea (2010) reported an average post bleeding
mortality rate ranging from 22.5 percent to 29.8 percent, while
Anderson et al. (2013) reported an average mortality rate of 17.9
percent. Our review of the information provided by the petitions and in
our files indicates that there are numerous other laboratory studies
completed on the post-bleeding mortality rates of Atlantic HSC, with
average mortality rates never exceeding 20 percent, and most (8 out of
11) below 15 percent (DeLancey and Floyd 2012; Endosafe 1999; Hurton
and Berkson 2005; Kurz James-Pirri 2002; Linesch 2017; Rudloe 1983;
SCDNR 1999; Thompson 1998; Walls and Berkson 2003; Wenner and Thompson
2000; and Yadon 1999, as cited in the ASMFC 2019). The findings of
these studies are not acknowledged by the petitions. The ASMFC (2024a)
evaluated several recent studies on the biomedical mortality rate of
Atlantic HSCs (pre- or post- bleeding) (Litzenberg 2023; Owings et al.
2019, 2020; Smith et al. 2020; Tinker-Kulberget al. 2020a,b,c; Watson
III et al. 2022, as cited in ASMFC 2024a). Based on the meta-analyses
of these studies, as well as those studies evaluated in ASMFC (2019), a
bleeding mortality rate of 15 percent was applied by the ASMFC (2024a)
in its estimation of total annual biomedical Atlantic HSC mortalities.
By acknowledging only the highest post-bleeding mortality rates, the
petitions provide an inaccurate and incomplete view of the post-
bleeding biomedical mortality rate of Atlantic HSCs and, therefore, do
not provide a balanced or complete representation of the relevant
facts. Our review of the information cited in the petition and in our
files indicates that the petitions' characterizations of the level of
utilization as it relates to population sustainability are misleading
and unsupported by the literature. Specifically, the ASMFC has
incorporated anthropogenic removals, including biomedical removals, to
inform the CMSA used to estimate male and female abundance in the
Delaware Bay regional population, which in turn are used as inputs to
the Adaptive Resource Management (ARM) Framework used to set harvest
specifications in the Delaware Bay Region. According to the 2024
Atlantic HSC stock Assessment Update (ASMFC 2024a), results of the CMSA
show increasing trends in male and female abundance, with the highest
abundance indices within the time series (2003 through 2022) shown in
2022. Further, as provided in the Abundance, Status, and Population
Trends section, with the exception of the New York regional population,
other regional populations under the jurisdiction of the ASMFC exposed
to biomedical harvesting (e.g., Northeast, Delaware Bay, Southeast)
have shown signs of population stability or improvement, suggesting
that harvesting rates are sustainable in these affected populations.
The petitions also claim that the biomedical bleeding process
results in sublethal effects (e.g., reduced reproductive fitness and
mobility) to Atlantic HSC crabs released after bleeding. According to
the Friends of Animals petition, these sublethal effects are causing
harm to Atlantic HSCs at a population level. In support of this claim,
both petitions cite Krisfalusi-Gannon et al. (2018) and Smith et al.
(2017). Additionally, the CBD petition cites Novitsky (2015), while the
Friends of Animals petition supports its claim by also citing Anderson
et al. (2013), Ghubril (2019), and Gorman (2020). After reviewing these
sources we found that five (Ghubril 2019; Gorman 2020; Novitsky 2015;
Krisfalusi-Gannon et al. 2018; Smith et al. 2017) are literature
reviews that focus primarily on the biomedical utilization of the
Atlantic HSC and mortality that may result from the bleeding process.
All five of these literature reviews cite to Anderson et al. (2013) to
briefly mention that sublethal effects may also occur. Anderson et al.
(2013) is the only source cited that examines the sublethal post-
bleeding impacts to Atlantic HSC. Specifically, Anderson et al. (2013)
assessed, over a period of 6 weeks, the post-bleeding behavioral (i.e.,
movement, activity, and circatidal rhythm) and physiological (i.e.,
hemocyanin concentration) effects to Atlantic HSCs under differing
laboratory and outdoor conditions. That report showed that two weeks
after bleeding, there were decreases in Atlantic HSC activity, movement
(linear and angular velocity), and expression of circatidal rhythms
from all treatment groups; however, by the third week, full recovery to
pre-bleeding activity levels were reported in Atlantic HSC from the
outdoor treatment group. In terms of physiological effects, 6 weeks
post bleeding, Anderson et al. (2013) reported a decrease in hemocyanin
concentrations in Atlantic HSC from all treatment groups. While
Anderson et al. (2013) indicated that these types of sub-lethal impacts
could alter Atlantic HSC breeding success post-bleeding and may
``partially account for declining populations in heavily harvested
regions,'' the authors noted that certain treatment conditions
(specifically lack of access to food in the laboratory groups) may have
prolonged the stress recovery periods and, therefore, rates of
behavioral or physiological recovery. The ASMFC (2019) reviewed
Anderson et al. (2013) and similarly expressed concerns about treatment
conditions exacerbating the outcomes of the study. The ASMFC (2019)
noted that the Atlantic HSCs used in Anderson et al. (2013) were
exposed to high stress conditions (e.g., prolonged (greater than four
hours) heat/sun exposure, holding of Atlantic HSC out of water for more
than 24 hours, starvation of laboratory animals). Additionally, none of
the tests by Anderson et al. (2013) were conducted using the biomedical
harvest best management practices (BMPs) developed by the ASMFC and
biomedical representatives in 2011, which are used by biomedical
facilities pursuant to the licensing requirements of the Food and Drug
Administration (FDA) (ASMFC 2019; Novitsky 2015). The ASMFC (2019) also
noted a master's thesis by Owings (2017) which found that bled crabs
mated less post-release; however, similar to the previous study, the
BMPs were not followed and the ASMFC concluded that additional research
that adheres to BMPs was
[[Page 7460]]
needed to better understand the impacts of biomedical bleeding (ASMFC
2019). Additionally, while the petitions provide a reasonable
assumption that demand for LAL could increase in the coming decades to
meet increasing biomedical needs as a result of declining Asian HSC
populations (i.e., decreased Tachypleus Amebocyte Lysate (TAL)
availability), the CBD petition also mentions that the animal-free
alternative to LAL could reduce this demand (Smith et al. 2023). Based
on the information provided by the petitions and in our files, we are
unable to draw reasonable inferences that sublethal impacts from
biomedical bleeding may be contributing to extinction risk of Atlantic
HSC now or in the foreseeable future.
The CBD petition identifies the ``rent-a-crab'' program, which
refers to the dual use of Atlantic HSCs by the bait and biomedical
industries, as threatening the continued survival of the species.
Referring specifically to Atlantic HSC populations in Massachusetts,
the CBD petition claims that Massachusetts's rent-a-crab program has
caused increased mortality to Atlantic HSCs. According to the
information in our files, the rent-a-crab program allows permitted bait
harvesters and/or dealers to send crabs caught for the bait industry to
a bleeding facility, with the crabs returned to the bait vendor after
bleeding (ASMFC 2022d, 2023d, 2024b). According to the CBD petition,
the rent-a-crab program creates incentive for increases in bait harvest
levels in order to meet biomedical demand; however, the information
provided in the petition and in our files does not support the
petition's claims. For example, Atlantic HSCs used in the rent-a-crab
program can be caught and landed only by permitted bait harvesters and
must be counted against the bait quota of the state of origin of the
harvester's permit (ASMFC 1998, 2000, 2022d, 2023d, 2024b; MADMF 2024).
Additionally, all permitted harvesters participating in the rent-a-crab
program must comply with that state's regulations for bait harvest,
including penalties for exceeding or approaching the ASMFC and/or
state's quota (e.g., closures and reduced trip limits) (ASMFC 1998,
2000, 2022d, 2023b, 2024b; MADMF 2024). The available information in
our files also lacks any indication that bait quotas specified by the
ASMFC or the states have been exceeded over the past several years
(ASMFC 2022d, 2023b, 2024b). Additionally, information in our files
indicates that Massachusetts experienced an increase in biomedical
landings in 2022 as a result of the introduction of a second biomedical
firm; this firm, according to Massachusetts DMF (2023), did not
participate in the rent-a-crab program and sourced HSCs from biomedical
harvesters. In response to the increased biomedical landings,
Massachusetts put subsequent management measures in place to prevent
further increases, including a biomedical processor quota and lowering
their state bait quota (322 CMR 6.34, as referenced in MADMF 2024).
Altogether, we do not find that the petition offers substantial
scientific or commercial information that would suggest that the rent-
a-crab program is a mechanism of overutilization that may be negatively
affecting the continued existence of the Atlantic HSC. This is
especially true when considering the overall improvement of most
Atlantic HSC populations, as identified in the Abundance, Status,
Population Trends section (e.g., the Northeast regional population,
which includes Massachusetts, going from declining (ASMFC 2013) to
neutral/mixed (ASMFC 2024a)).
The CBD petition notes that the harvesting of juvenile Atlantic
HSCs in the marine life or aquarium trade is threatening the Atlantic
HSC, specifically those populations in Florida. Relying on information
provided by Smith et al. (2017), the petition asserts that the
extensive removal of juveniles in Florida for Florida's aquarium trade
``could hinder the population's ability to sustain itself.'' However,
the information in the petition and in our files does not support the
petition's claims. For example, relying on data collected by Brockmann
et al. (2015), Smith et al. (2017) report that between 2008 and 2013,
4,938 juvenile Atlantic HSCs were collected per year on the east coast
of Florida, with 22,597 Atlantic HSCs collected on the west coast of
Florida. Smith et al. (2017) acknowledge that although this level of
harvest is small, ``the magnitude of the threat from the marine-life
and aquarium trade is unknown because population size is unknown.''
Similar conclusions were made by Brockmann et al. (2015) and Gerhart
(2007). Smith et al. (2023) provide updated estimates of harvest rates
in Florida's marine life or aquarium trade. On the east coast of
Florida, Smith et al. (2023) identify three regional spatial units:
``Southeast: North Florida,'' ``Florida Atlantic: Florida Indian
River'' and ``Florida Atlantic: Florida South.'' For the ``Southeast:
North Florida'' regional spatial unit, no known harvest of any kind has
been documented. From 2013 to 2022, approximately 2,640 juvenile
Atlantic HSCs were harvested in the ``Florida Atlantic: Florida Indian
River'' regional spatial unit, and from 2012 to 2022, 7,429 juvenile
Atlantic HSCs were harvested in the ``Florida Atlantic: Florida South''
regional spatial unit (Smith et al. 2023). On the west coast of
Florida, Smith et al. (2023) identify two regional spatial units:
``Eastern-Gulf: Florida Southwest'' and ``Eastern-Gulf: Florida West.''
From 2012 to 2022, approximately 179,620 juvenile Atlantic HSC crabs
were harvested from the ``Eastern-Gulf: Florida Southwest'' regional
spatial unit, and from 2013 to 2022, approximately 6,544 juvenile
Atlantic HSCs were harvested in the ``Eastern-Gulf: Florida West''
regional spatial unit (Smith et al. 2023). Taking into consideration
the above, as well as information on other potential threats (e.g.,
overharvest, climate change, habitat loss) experienced by each of the
regional spatial units identified on the east or west coasts of
Florida, Smith et al. (2023) conclude that the current status of
Florida's east coast regional spatial units (i.e., Southeast: North
Florida, Florida Atlantic: Florida Indian River, and Florida Atlantic:
Florida South) are ``viable,'' and for Florida's west coast regional
spatial units, the current status is ``viable (Eastern-Gulf: Florida
Southwest)'' or ``functional (Eastern-Gulf: Florida West)'' (table 3).
Smith et al. (2023) also describe the long term (i.e., 100 years)
status of each of the east and west coast regional spatial units as
``viable.'' Aside from Florida (east and west coasts), harvest of
Atlantic HSCs for the marine life or aquarium trade in other portions
of the species' range is limited to absent, and no information cited in
the petition or in our files indicates that the level of marine life
harvest that does occur may be threatening or may be likely to threaten
the continued existence of the species (Brockman et al. 2015; Smith et
al. 2017, 2023). Considering the limited and localized impacts from the
marine life or aquarium trade, as well as information regarding the
overall status of Atlantic HSC populations in these regional spatial
units (see Species Description, and Abundance, Status, and Population
Trends sections), we do not find that the petition offers substantial
scientific or commercial information that would suggest that the
harvesting of juvenile Atlantic HSC for the marine life or aquarium
trade may be negatively affecting the continued existence of the
Atlantic HSC throughout all or in a significant portion of the species'
range.
[[Page 7461]]
Both petitions claim that Atlantic HSCs are overharvested as
bycatch in commercial gillnet, trawl, and dredge fisheries operating
throughout the species' range. The petitions claim that given the
number of Atlantic HSCs injured or killed as bycatch during commercial
fishing, the continued existence of the Atlantic HSC is threatened. The
CBD petition, citing the ASMFC (2023c, d), states that ``the number of
dead horseshoe crabs due to discarding can vary from about a fourth to
half of the number of crabs harvested for bait.'' While the CBD
petition is accurate in its summary of information provided in the
ASMFC (2023b, c), the CBD petition does not provide a complete
representation of the relevant facts. Contrary to CBD's claims, our
review of the information cited in the CBD petition indicates that the
bycatch metrics do not pertain to the species' range wide, but,
instead, are specific to the Delaware Bay regional population and, as
such, cannot be used to assess the magnitude of bycatch as a threat to
the Atlantic HSC throughout all its range. Further, there is no
evidence cited in the petition or in our files that indicates that
bycatch and any associated discard mortality may be negatively
affecting the continued existence of the Delaware Bay regional Atlantic
HSC population, a population that may be a significant portion of the
Atlantic HSC's range. In fact, Smith et al. (2023) state that ``the
severity of bycatch is expected to vary spatially but has been found
overall to be negligible relative to horseshoe crab abundance and is
not expected to cause declines in the Delaware Bay population where the
effect of bycatch has been most closely evaluated.'' Taking into
consideration the above information, as well as the limited information
provided in the petition on the level of discard mortality across the
species' range (Smith et al. 2017, 2023), we do not find that the
petition offers substantial scientific or commercial information that
would suggest that bycatch in commercial fisheries is a mechanism of
overutilization that may be negatively affecting the continued
existence of the Atlantic HSC. This determination is further supported
by available population data (see Species Description and Abundance,
Status, and Population Trends sections) indicating stable to increasing
trends for most Atlantic HSC populations, including the Delaware Bay
regional population.
Altogether, while the petition presents information on the
commercial and scientific harvest, as well as the incidental bycatch of
Atlantic HSCs, sufficient information is not provided or otherwise
available to indicate that the harvest and collection mechanisms
identified by the petitions may cause the species to become endangered
or threatened with extinction. Specifically, given the information
provided in the Species Description and the Abundance, Status, and
Population Trends sections, there is no evidence that the species is at
or near a level of abundance that may place its current or future
persistence at risk throughout all or a significant portion of the
species' range due to overutilization. Therefore, we conclude the
petition does not present substantial scientific information indicating
that listing may be warranted due to overutilization for commercial,
recreational, scientific, or educational purposes.
(C) Disease or Predation
Disease and predation are not identified as primary threats to the
species in the petitions. Further, in the face of other stressors,
there is no evidence in the petitions or in our files indicating that
disease or predation are negatively impacting the species.
(D) Inadequacy of Existing Regulatory Mechanisms
The CBD petition asserts the absence of federal regulations
implemented under the authority of the Magnuson-Stevens Fishery
Conservation and Management Act (MSA) has resulted in the inadequate
protection of Atlantic HSCs in state and federal waters. However, the
petition provides no evidence to support this assertion. It is unclear
how the MSA would afford greater protections to Atlantic HSC
populations relative to existing regulatory mechanisms implemented by
the ASMFC pursuant to the Atlantic Coastal Fisheries Cooperative
Management Act (ACA) (16 U.S.C. Ch. 71).
As discussed under Factor (B), Overutilization for Commercial,
Recreational, Scientific, or Educational Purposes, the ASMFC and
Atlantic coastal states cooperatively manage Atlantic HSC populations
along the U.S. Atlantic coastline, from Maine to Florida (Atlantic),
pursuant to the 1998 Atlantic HSC ISFMP and subsequent addenda. Both
petitions assert that the existing regulatory mechanisms of the ASMFC
and the states are failing to protect and restore Atlantic HSC
populations. Specifically, the petitions assert that the ISFMP's
``patch-work'' of state specific harvesting measures, its use of
``flawed'' data and modeling methodologies, and its failure to regulate
biomedical harvest of the Atlantic HSC are threatening the species'
continued survival. The CBD petition also cites demographic metrics
(e.g., egg density, mature female abundance, numbers of spawning
Atlantic HSCs) as additional evidence of the ISFMPs' failure to protect
and restore Atlantic HSC populations. Our assessment of these metrics
in relation to the health of the Atlantic HSC population are provided
in the Abundance, Status, and Population Trends section above and will
not be discussed further in this section.
The petitions claim that when a state strengthens its regulations
(e.g., state moratorium on Atlantic HSC harvest), other states
experience corresponding increases in harvest rates, thereby negating
any intended conservation benefits to the species. The petitions term
this behavior as ``regulatory leakage.'' The CBD petition further
asserts that, due to regulatory leakage, all state regulations in place
for Atlantic HSC have ``proven inadequate to prevent further declines
in horseshoe crabs.'' This is an inaccurate representation of the
relevant facts. While the petitions provide references to the ASMFC's
1998 Atlantic HSC ISFMP and subsequent addenda, as well as state-
specific management measures, petition statements claiming the failure
of these measures are unsupported. Instead, information provided in the
petitions and in our files indicates that management measures have
become more restrictive since the implementation of the 1998 ISFMP and,
as a result, Atlantic HSC populations are beginning to demonstrate
improvements. In fact, many states have, and continue to implement,
stricter regulatory harvest controls than those established by the
ASMFC to protect the long-term viability of the Atlantic HSC in their
waters (ASMFC 2008, 2022d, 2023d, 2024b). For example, since 2006,
there has been a state moratorium in New Jersey on the harvesting of
Atlantic HSCs (ASMFC 2008, 2019; NJDEP 2024) and, in Massachusetts, the
Department of Marine Fisheries (MADMF) has implemented numerous
Atlantic HSC harvest regulations (322 CMR 6.34), including the recent
(2023) harvest prohibitions within the Monomoy National Wildlife Refuge
and the Cape Cod National Seashore (MADMF 2024). Additionally, in 2023,
Connecticut implemented Bill no. 6484 which prohibits the hand-
harvesting of Atlantic HSCs or its eggs (CTDEEP 2024), and Maryland
issued regulations to prohibit catch or possession of female Atlantic
HSCs (MDDNR 2024). The
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petitions' claims of leakage are contradicted by recent compliance and
monitoring information which indicates that landings for the states
participating in the ISFMP are well below the ASMFC established quotas,
and most are well below their own state established quotas (ASMFC
2022d, 2023d, 2024b; CTDEEP 2024; FWCC 2024; GADNR 2024; MADMF 2024;
MDDNR 2024; NCDMF 2024; NYSDEC 2024; RIDEM 2024; SCDNR 2024). As noted
under Factor (B) Overutilization for Commercial, Recreational,
Scientific, or Educational Purposes, numerous sources (e.g., Okun 2012;
Smith et al. 2009, 2016, 2017; Smith, J.A. et al. 2022) recognize that
threats of overharvest are reduced over much of the Atlantic HSC's
range as a result of the ASMFC's management of the species. Smith et
al. (2023) reaffirm this assertion that harvest regulations and habitat
protections over much of the species' range have had a positive effect
on conservation of the Atlantic HSC, noting that ``effective
conservation of HSCs takes the form of harvest regulations''
implemented by the ASMFC and the states. Taking into consideration the
information above, the petitions provide no substantial scientific or
commercial information to indicate that regulatory measures implemented
by the ASMFC and the states are inadequate to protect the Atlantic HSC.
The petitions assert that the continued existence of the Delaware
Bay Atlantic HSC regional population is threatened by the ASMFC's use
of ``flawed'' data and modeling methodologies to manage this regional
population. Specifically, the petitions point to the ASMFC's ARM
Framework, first implemented for management purposes in 2012 to set
harvest specifications for the Delaware Bay regional population (ASMFC
2012), and subsequently revised in 2022 via Addendum VIII of the
Atlantic HSC ISFMP (ASMFC 2022b). Part of the 2022 revisions to the ARM
Framework include the incorporation of the CMSA, which estimates male
and female Atlantic HSC abundance in the Delaware Bay regional
population using all quantifiable sources of mortality (i.e., natural,
bait, fisheries bycatch, and biomedical) as well as abundance indices
provided by three trawl surveys (i.e., Virginia Tech (VT), Delaware
Adult, and New Jersey Ocean Trawl) (ASMFC 2019, 2022a, b, 2024a).
Citing the ASMFC (2022a), the petitions assert that only the VT Trawl
Survey is designed for the purpose of estimating Atlantic HSC abundance
in this regional population. The petitions also assert that the CMSA's
collation and equal weighting of all three surveys results in
artificially inflated population estimates, which in turn, results in
skewed ARM recommendations that increase Atlantic HSC harvest
thresholds in the Delaware Bay regional population, thereby preventing
the population from increasing and recovering to pre-exploitation
numbers (i.e., prior to the mid-19th century; see Abundance, Status and
Population Trends section).
Based on our review of information cited in the petition and in our
files, we find that although the petitions are correct that the VT
Trawl Survey is designed specifically for the collection of Atlantic
HSCs, the petitions do not provide a complete representation of the
relevant facts about the VT, Delaware Adult, and New Jersey Ocean trawl
surveys or the ASMFC's rationale for collating the three surveys in the
CMSA. There is no evidence that the ASMFC's collation of the survey
data artificially inflates population estimates to allow for larger
harvest thresholds. Relative to the area encompassed by the Delaware
Bay regional population (i.e., coastal waters ranging from New Jersey
through Virginia (including the Delaware Bay)), the ASMFC determined
that the VT trawl survey alone would likely underestimate the abundance
of the Delaware Bay regional population given the spatial extent of the
VT trawl survey (i.e., lower Delaware Bay and the area in the Atlantic
Ocean extending from shore out to 12 nautical miles (1.85 kilometers)
from 39[deg]20' N (Atlantic City, New Jersey) to 37[deg]40' N (slightly
north of Wachapreague, Virginia) (Hallerman and Jiao 2021)) combined
with the trawl's catch efficiency (i.e., less than 100 percent) (ASMFC
2019, 2022a). As a result, the Delaware Adult and New Jersey Ocean
trawl surveys were incorporated into the CMSA to supplement the data
provided by the VT Trawl Survey (ASMFC 2019, 2021; 2022a). Based on the
information provided in the ASMFC (2019, 2021, 2022a) and Hallerman and
Jiao (2021), as the VT, Delaware Adult, and New Jersey Ocean surveys
each provide temporal (spring through winter for Delaware Adult and New
Jersey Ocean trawl surveys, fall for VT trawl survey) and spatial
(Delaware Adult trawl survey: Upper and Lower and Delaware Bay, at
depths ranging from 7-35 m; New Jersey Ocean trawl survey: entire coast
of New Jersey, extending from shore to waters beyond 12 nautical miles
(1,852 meters); VT trawl survey: from Atlantic City, New Jersey, to
Wachapreague, Virginia, including the lower Delaware Bay) sampling
inputs not shared by the other respective surveys, the CMSA's collation
of the three surveys provides a more comprehensive relative abundance
estimate of the Delaware Bay regional population. As such, the
collation of the three surveys is commensurate with the spatial and
temporal range of the Delaware Bay regional population's range.
According to the information provided in the ASMFC 2024a (table A5),
the collation of the three survey data sets into the CMSA does result
in higher estimates of relative abundance of Atlantic HSC than if the
CMSA relied only on the data provided by VT trawl survey. However,
there is no evidence provided by the petitions or in our files that
indicates that these abundance estimates are overestimates of the
Delaware Bay regional population of Atlantic HSC. According to
information in our files, the CMSA underwent multiple peer reviews
(e.g., ASMFC 2009, 2019, 2022a, 2024c), with each review concluding
that the collation of the three survey's data to be a scientifically
sound measure of HSC abundance (ASMFC 2024c). Further, as it relates to
the weighting (i.e., degree of contribution) of each survey in the
CMSA, based on numerous sensitivity runs and peer review comments, the
ASMFC (2022a) modified the CMSA by removing all survey weights in its
calculation of Atlantic HSC abundance so as to eliminate the
possibility of double-weighting the survey inputs and to acknowledge
the differences in the surveys discussed above. Based on this and the
information provided above, the petitions omit relevant information,
resulting in inaccurate claims about the ASMFC's consideration and
treatment of available data in the CMSA. Specifically, there is no
information provided in the petition or in our files that supports the
petition's claims that the methodology applied in the CMSA results in
artificially inflated population estimates, which, in turn, result in
skewed ARM recommendations to increase harvest thresholds of the
Delaware Bay regional population of Atlantic HSCs, thereby preventing
this population from increasing. Information provided in the Abundance,
Status, and Population Trends section shows that, under the current
CMSA and ARM recommendations, the Delaware Bay regional Atlantic HSC
population has shown increasing population trends.
The CBD petition cites two expert reviews (Lipcius 2022, and
Shoemaker 2022), to further support its claims that the CMSA and ARM
Framework are flawed in terms of CMSA's treatment of
[[Page 7463]]
survey gap years and the ARM Framework's failure to adequately account
for uncertainty in mean recruitment rates). Our review of ASMFC
(2022a), Lipcius (2022), and Shoemaker (2022), as well as other
information provided in the petition and in our files, indicates that
the ASMFC (2024c) provided technical responses to the comments received
by Lipcius (2022) and Shoemaker (2022), which included detailed
documentation of the errors and misconceptions provided by those
reviews (e.g., inaccurate assumptions regarding female abundance,
promosomal width, and recruitment rates, relative to the CMSA's total
estimated Atlantic HSC population size). Additionally, the information
in the petition and in our files indicates that beyond the ASMFC's
consideration of the critiques provided by Lipcius (2022), and
Shoemaker (2022), between 2009 through 2023, the ARM and/or CMSA
underwent numerous peer and technical reviews, with the ASMFC: (1)
documenting its decision-making process extensively, (2) providing
detailed documentation of the comments received, (3) addressing any
errors and misconceptions in received reviews (e.g., use of incorrect
Atlantic HSC abundance data (sample period occurred when Atlantic HSCs
are not fully available to the surveys) to subset trawl survey indices
of abundance in order to estimate population trends in the Delaware
Bay), and (4) explaining how the comments informed the final Framework
(ASMFC 2009, 2019, 2022a, 2024c; Earthjustice 2023). The CBD petition
does not acknowledge any of these documents issued by the ASFMC between
2009 to the present. Based on our review of the ASMFC (2009, 2019,
2022a, 2024c) and Earthjustice (2023), as well as other information
cited in the petition and in our files, there is no evidence that
indicates the ASMFC has ignored or overlooked any potential flaws in
the data being used to inform the final revisions to the CMSA and the
ARM Framework. Review of information in our files indicates that the
ARM Revision (including the CMSA) was fully evaluated and endorsed by
an independent panel of scientific experts through the ASMFC's external
peer review process, with criticisms of the model, including those
identified in the petition, fully addressed throughout the ARM revision
process (ASMFC 2009, 2019, 2022a, 2024c). Further, contrary to the
petition's claims that the ASMFC's use of flawed data in the CMSA and
ARM Framework have resulted in inflated population estimates for the
Delaware Bay regional population, according to the ASMFC (2024c), ``HSC
population trends from the ARM revision are consistent with other
published values or data sources in the Delaware Bay region.'' Taking
into consideration the above, the CBD petition provides an unbalanced
and inaccurate representation of the relevant facts, resulting in a
mischaracterization of the CMSA and ARM Framework, and, in turn,
inaccurate claims that the ASMFC is using risk-prone management
decisions that threaten the continued survival of Atlantic HSCs of the
Delaware Bay regional population. In contrast, available population
data indicate an increasing population trend for this regional
population under the ASMFC's current management (ASMFC 2024a; see
Abundance, Status, and Population Trends section).
The petitions assert that the Atlantic HSC ISFMP's failure to
regulate the biomedical harvest and bleeding of the Atlantic HSC
threatens the continued survival of the species. The petitions note
that although the Atlantic HSC ISFMP states that, ``if horseshoe crab
mortality associated with collecting, shipping, handling, or use by the
biomedical industry exceeds 57,500 horseshoe crabs per year, the
Commission would reevaluate potential restrictions on horseshoe crab
harvest by the biomedical industry.'' While the petitions' claims that
the threshold of 57,500 Atlantic HSC established in the ISFMP has been
exceeded are correct, the ASMFC subsequently reevaluated the threshold
and determined that harvest restrictions or a change in the threshold
were not warranted (ASMFC 2022d). Specifically, the ASMFC (2022d)
determined that establishment of a revised biologically based
biomedical mortality threshold was not possible given the absence of a
coastwide Atlantic HSC population estimate. According to the
information in our files, the ASMFC also took other actions to minimize
mortality and injury of Atlantic HSCs involved in the biomedical
bleeding process (i.e., from harvest to post-bleeding release) as
result of the exceedance of the 57,500 threshold (ASMFC 2023a).
Pursuant to Addendum III of the ISFMP, the ASFMC requires all states
where Atlantic HSCs are captured for biomedical use to monitor and
report monthly and annually the harvest of Atlantic HSC by biomedical
facilities (ASMFC 2004). Specifically, Addendum III states that ``all
states must identify [the] percent [of] mortality up to the point of
release (including harvest, shipping, handling, and bleeding
mortality), harvest method, number or percent of males and females,
disposition of bled crabs and condition of holding environment of bled
crabs prior to release.'' Since implementation of Addendum III in 2004,
the ASMFC closely monitors biomedical harvest of Atlantic HSCs and
associated mortality, and accounts for biomedical mortalities to help
inform management decisions of the species (i.e., CMSA and ARM
Framework, see section above and Factor (B) Overutilization for
Commercial, Recreational, Scientific, or Educational Purposes).
Further, as provided under the Overutilization for Commercial,
Recreational, Scientific, or Educational Purposes section (Factor (B)),
pursuant to the licensing requirements of the FDA, most biomedical
facilities follow biomedical harvest BMPs developed by the ASMFC and
biomedical representatives in 2011 to mitigate harm to bled Atlantic
HSCs and, therefore, sustain the Atlantic HSC population (ASMFC 2019;
Novitsky 2015). These BMPs, although not regulatory under the ISFMP,
are reviewed and reassessed by the ASMFC as part of the Atlantic HSC
stock assessment reports to determine if modifications to the BMPs are
warranted in order to continue to meet the goals and objectives of BMPs
established in 2011. Further, harvest of Atlantic HSCs for biomedical
use is subject to state regulations, separate from those implemented by
the ASMFC or particular states on harvest and landing of Atlantic HSC
for bait (ASMFC 2023d, 2024b). Some states implement annual quotas
which, once reached, close Atlantic HSC biomedical harvest (e.g., ASMFC
2024b; MADMF 2024 (including citation of 322 CMR 6.34); RIDEM 2024).
Other states have biomedical or scientific permitting requirements,
including revocation of biomedical permits for failure to comply with
reporting mandates (e.g., Title 6 of the New York Codes, Rules and
Regulations, Part 44.3 (6 NYCRR Sec. 44.3)) or refusal to issue hand
harvesting permit for scientific purposes if such harvesting will
equate to harm to the Atlantic HSC population (e.g., Connecticut House
Bill No. 6484, Public Act No. 23-6 (CTDEEP 2024)). Based on the above,
the petitions provide an incomplete view of the regulatory mechanisms
associated with the biomedical harvest and bleeding of the Atlantic
HSC, and, as a result, do not provide sufficient scientific or
commercial information to support their claims that the ISFMP's failure
to regulate the biomedical harvest of the Atlantic HSC threatens the
continued survival of the species. In contrast to
[[Page 7464]]
their claims, under the existing regulatory mechanisms of the ISFMP and
the states, available population data indicate that, with the exception
of the New York regional population, all other regional Atlantic HSC
populations are stable to increasing.
Although the petitions' claims of regulatory inadequacy focus on
the ASMFC and the Atlantic states, the CBD petition also asserts that
regulatory mechanisms to protect Atlantic HSCs are inadequate in
portions of the species' range that extend beyond the jurisdiction of
the ASMFC (i.e., coastal waters of western Florida, Alabama,
Mississippi, Louisiana, Texas, and Yucat[aacute]n Peninsula, Mexico).
Along the coastal waters of western Florida, Alabama, Mississippi,
Louisiana, and Texas, the CBD petition asserts that there are no
Atlantic HSC harvesting regulations in place and concludes that state
regulations are inadequate to protect Atlantic HSCs. However, the
petition provides no scientific or commercial information to support
these assertions. Although we could not find any information in our
files that pertained to the petition's claims, we did identify some,
albeit limited, information based on our review of Smith et al. (2023).
According to Smith et al. (2023), ``Gulf coastal states may enact
state-specific regulations,'' and that ``harvest in the Gulf in the USA
is regulated at the local or state levels in some locations;'' however,
specifics on such regulations are not provided. Additionally, Smith et
al. (2023) note that there is little to no harvesting of Atlantic HSCs
in this portion of the species' range; as an example, the authors note
that between 2013 and 2022, approximately 2,152 adult Atlantic HSCs
were harvested in coastal waters of western Florida, and there was no
documented harvest in Alabama, Mississippi, or Louisiana. Although it
remains unclear to what degree regulatory mechanisms exist within this
portion of the species' range, the available information indicates that
in some coastal waters of western Florida, Alabama, Mississippi,
Louisiana, or Texas, harvest regulations do exist. Additionally,
contrary to the CBD petition's claims that state regulations are
inadequate to protect Atlantic HSCs in this portion of the species'
range, available population data describes the Atlantic HSC populations
along the coastal waters of western Florida, Alabama, Mississippi,
Louisiana, and Texas as ``viable'' or ``functional'' (Smith et al.
2023; refer to Abundance, Status, and Population Trends, table 3).
The CBD petition also asserts that regulations in Mexico are
inadequate to protect Atlantic HSCs throughout the Yucat[aacute]n
Peninsula; however, the petition provides limited information (i.e.,
Zald[iacute]var-Rae et al. 2009) to support this claim. Information
provided indicates that Atlantic HSCs were recognized by Mexico as ``in
danger of extinction'' in 1994, with harvesting of the species
prohibited throughout the Yucat[aacute]n Peninsula (Botton et al. 2021;
Smith et al. 2023; Zald[iacute]var-Rae et al. 2009). Botton et al.
(2021) and Zald[iacute]var-Rae et al. (2009) note that within Mexico,
important Atlantic HSC nesting and nursery areas have been protected by
Mexico's National Commission for Natural Protected Areas since 2000.
While illegal poaching still occurs in Mexico when other bait sources
are scarce (Smith et al. 2023; Zald[iacute]var-Rae et al. 2009),
conservation activities are underway to address this threat. According
to Smith et al. (2023), ``stakeholders in the Yucat[aacute]n Peninsula
octopus fishery are currently involved in the process of third-party
certification of the industry's sustainability in order to maintain
access to international markets, especially in the European Union.
Among the key criteria in the proposed certification process is that no
horseshoe crabs are used as bait in the octopus fishery.'' Taking into
consideration the above protections, as well as the available data
sources (Smith et al. 2023) indicating stable to increasing population
trends for the Yucat[aacute]n Peninsula regional populations (see
Abundance, Status, and Population Trends, table 3), overall, the
petition does not provide substantial information regarding the
existing regulatory mechanisms for the species outside of the United
States or whether they are inadequate to protect the species.
Overall, the petition fails to provide substantial scientific or
commercial information indicating existing regulatory mechanisms for
harvest are inadequate to prevent extinction risk for Atlantic HSCs
throughout all or a significant portion of its range such that listing
may be warranted. To the contrary, the CBD petition notes that ``bait
harvest quotas have helped to slow the decline in horseshoe crab
populations,'' and the Friends of Animals petition states that the
``FMP resulted in decreased numbers of crabs harvested as bait.''
Further, scientific and commercial information provided in the
petitions and in our files indicates that there has been a history of
effective regulatory actions to conserve and protect Atlantic HSCs. The
effectiveness of the regulatory actions is further evidenced by the
stable to increasing population trends for most regional populations
throughout all or a significant portion of the species' range (refer to
Species Description and Abundance, Status, and Population Trends).
The CBD petition argues that the Outer Continental Shelf Lands Act
provides inadequate protections to Atlantic HSCs from threats posed
from oil and gas exploration and development. Specifically, they note
oil spills as a threat to the species, indicating that Delaware Bay has
had nine ``oil spills over the past decade'' referencing Botton et al.
(2009). The CBD petition also discusses oil and gas wells or pipelines
which may not be properly decommissioned in the Gulf, claiming that
these wells or pipelines could leak into Atlantic HSC habitat resulting
in impacts to nearby populations. We addressed the threat of oil spills
under Factors A and E, noting that Smith et al. (2017) found little
evidence of this threat having a significant impact on Atlantic HSC
populations. The likelihood of oil spill occurrence is low, and many
factors influence the severity of the events (Smith et al. 2023). With
no further information provided by the petition, evidence to inform the
degree to which unplugged oil and gas wells are impacting or may impact
the species is lacking, and, therefore, whether additional regulations
may be warranted to address the impact of oil and gas exploration and
development on the species is uncertain.
The CBD petition asserts that the National Wildlife Refuge System
Act and marine reserves provide insufficient protections to Atlantic
HSCs. The petition indicates that federal protections fail to protect
Atlantic HSC, as biomedical harvest occurs in refuges in the South
Carolina and Georgia areas, and is allowed in the Carl N. Shuster, Jr.
Horseshoe Crab Reserve in New Jersey. Hunt (2022), which is referenced
by the petition, suggests that illegal harvest may be occurring at
Tybee National Wildlife Refuge and at Turtle Island Wildlife Management
Area; however, no information is provided as to the degree of these
impacts to local Atlantic HSC populations. While the petition is
correct that biomedical harvest of Atlantic HSC within the Carl N.
Shuster Jr. Horseshoe Crab Reserve in New Jersey was allowed, the
petition fails to acknowledge that biomedical harvest was allowed only
under an Exempted Fishing Permit (EFP) issued by NMFS and that the last
EFP issued was in 2016. Pursuant to 50 CFR 697.22, the NMFS Regional
Administrator can issue an EFP only if the exemption will
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not have a detrimental effect on Atlantic HSC. Review of the
information in our files indicates that prior to 2016, NMFS issued 15
EFPs to a biomedical facility to harvest Atlantic HSC in the Carl N.
Shuster, Jr. Horseshoe Crab Reserve (66 FR 42832, August 15, 2001; 67
FR 45445, July 9, 2002; 68 FR 42360, July 17, 2003; 69 FR 31588, June
4, 2004; 70 FR 36124, June 22, 2005; 71 FR 40076, July 14, 2006; 72 FR
36427, July 3, 2007; 73 FR 31434, June 2, 2008; 74 FR 36459, July 23,
2009; 75 FR 31421, June 3, 2010; 76 FR 31941, June 2, 2011; 77 FR
55457, September 10, 2012; 78 FR 29331, May 20, 2013; 80 FR 60633,
October 7, 2015; 80 FR 64397, October 23, 2015; 81 FR 56602, August 22,
2016). According to information in our files, all 15 EFPs issued by
NMFS required the EFP applicant to comply with specific EFP terms and
conditions, including a cap on the number of Atlantic HSCs collected
annually, as well as reporting to NMFS the number of Atlantic HSC
collected and the return location of all post-bled Atlantic HSC. NMFS
authorized these EFPs only after taking into consideration information
provided by the ASMFC. Smith et al. (2023) and the ASMFC (2019, 2024a)
assess South Carolina and Georgia Atlantic HSCs under a single regional
population (or spatial unit) labeled as the Southeast (or Southeast:
South Carolina and Georgia); Atlantic HSCs in New Jersey are grouped as
part of the mid-Atlantic Delaware Bay regional population (or spatial
unit) (table 2, table 3). Bait harvest is prohibited in South Carolina
and Georgia, but biomedical harvest occurs in this regional population
(ASMFC 2019; Smith et al. 2023). As noted in Abundance, Status, and
Population Trends, the ASMFC (2019, 2024a) describes the status of the
Southeast regional population as ``good'' (see table 2). Smith et al.
(2023) describe the current status as ``viable'' (see table 3).
Further, Smith et al. (2023) describe the ``most likely'' status as
``ecologically functional'' in the near and long term provided demands
do not increase and adequate management remains in place. In the mid-
Atlantic's Delaware Bay regional population (or spatial unit), which
includes New Jersey, increasing population trends are reported (ASMFC
2019, 2024a; Smith et al. 2023; table 2 and table 3) and long-term
trends are described as most likely ``viable'' with continued
management in place (Smith et al. 2023).
Overall, given the information provided above, we find that the
claims presented by the petitions do not comprise substantial
scientific or commercial information indicating inadequacies of
existing regulatory mechanisms such that a reasonable person conducting
an impartial scientific review would conclude that listing may be
warranted.
(E) Other Natural or Manmade Factors
In addition to pointing to the habitat impacts associated with
climate change (see Factor (A) The Present or Threatened Destruction,
Modification, or Curtailment of its Habitat or Range), the CBD petition
asserts that climate change can result in changes to temperature,
salinity, tidal patterns, and ocean acidity, which could significantly
impact the species' life cycle or development. Information provided in
the petition (Cheng et al. 2015; Laughlin 1983; Leith et al. 2021;
Subramoniam 2018) focuses on how environmental factors support
development of Atlantic HSCs or cue certain behaviors associated with
breeding and foraging either in Atlantic HSCs or invertebrates
generally. To support its claims, the CBD petition also provides
information (Cheng et al. 2020; IPCC 2022; NOAA 2021) on general
predictions regarding changes to certain environmental factors as a
result of climate change; however, the information cited does not
provide species-specific information about likely impacts as a result
of these factors changing. As noted in the Species Description,
Atlantic HSCs are ecological generalists and occur over a wide
geographic range, which corresponds to the species surviving and
developing over a range of different environmental conditions. Across
the range there is variation in the temperatures that cue different
behaviors and local populations may respond to complex interactions
between various environmental factors to initiate behaviors such as
spawning (Smith et al. 2017, 2023). Smith et al. (2023) acknowledge
that changes in temperature might negatively affect reproductive
activity in the next 100 years, especially in the southern spatial
units. However, as noted earlier, the results of these effects on
population status remain uncertain, particularly given other factors
such as the adaptability of the species or the potential for
phenological shifts (Smith et al. 2017, 2023) (see also Species
Description and Abundance, Status, and Population Trends sections and
Factor (A) Present or Threatened Destruction, Modification, or
Curtailment of Species Habitat or Range). Accordingly, while we
acknowledge the potential for the Atlantic HSC to experience impacts
due to changes in environmental factors over time, we find that there
is insufficient scientific or credible information to indicate the
petitioned action may be warranted due to changes in these factors.
The CBD petition points to biological factors, including the
Atlantic HSC's slow maturation rates and low survival to adulthood, to
claim Atlantic HSCs are susceptible to overharvest and that human-
driven mortality leaves this species highly vulnerable to extirpation.
Although information provided in the petition does support the
characterization of the Atlantic HSC as being slow to mature and as
having low juvenile survival rates (e.g., 3 out of 100,000 survive
their first year (Gauvry 2015)), the information also indicates that
the Atlantic HSC has other life history traits, such as high fecundity
and adaptation to different habitats over a wide geographic range, that
have supported the successful survival of this species over millions of
years (ASMFC 2019; B[lstrok]a[zdot]ejowski 2015; Gauvry 2015; Smith et
al. 2017, 2023). These life history traits (e.g., late maturing, high
fecundity, multiple spawning events over species lifetimes) are
adaptive strategies that have evolved in many marine species to
compensate for high mortality rates experienced during their early life
stages, thereby ensuring reproductive success in the species (Heppell
et al. 2005; Palumbi and Hedgecock 2005). Importantly, neither the
petition nor information in our files suggests that overharvest may be
occurring (see Factor (B) Overutilization for Commercial, Recreational,
Scientific, or Educational Purposes) or that current pressures may pose
an extinction risk for this species throughout all or in a significant
portion of the species' range. As noted in the Abundance, Status, and
Population Trends section, information in the petitions and in our
files indicates that, with the exception of the New York regional
population, Atlantic HSC population trends have improved throughout all
or in a significant portion of the species' range, in large part due to
the regulations introduced through the ASMFC's ISFMP (see also Species
Description; Abundance, Status, and Population Trends; Factor (B)
Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes; and Factor (D) Inadequacy of Existing Regulatory
Mechanisms sections above) (ASMFC 2019, 2024a; Smith et al. 2023).
The CBD petition asserts that genetic factors put the Atlantic HSC
at risk of extinction. Specifically, the petition asserts that if a
population were to be extirpated due to a major climatic event, given
the sex-biased dispersal observed among the Atlantic HSC, gene flow
[[Page 7466]]
alone would not be sufficient to repopulate an area due to limited
female migration and larval dispersal, placing populations at risk at
of extirpation. We discussed genetic factors, including sex-biased
dispersal and gene flow, under the Species Description section, noting
that low levels of gene exchange occur between neighboring regional
units and that it is primarily mediated by male dispersal. As noted
above, we found no information to suggest regional populations may be
at risk of extirpation (see Abundance, Status and Population Trends
section). Similar to an oil spill, Atlantic HSC populations could
experience negative localized impacts depending on the temporal scope
and scale due to a major climatic event; however, the likelihood of
such an event occurring and resulting in extirpation are low. Further,
this species is adapted to dynamic coastal environments, where life-
history traits such as slow maturation help to ensure population
resilience over time (Banerjee and Mitra 2017; Botton et al. 2009;
Botton et al. 2021; Heppell et al. 2005; Palumbi and Hedgecock 2005).
Overall, the petition fails to present substantial scientific or
commercial information indicating that genetic factors are posing a
threat to the continued existence of Atlantic HSCs such that listing
may be warranted.
Under ``Other Natural or Manmade Factors,'' the CBD petition also
makes several claims related to the management of Atlantic HSCs.
Specifically, CBD suggests that insufficient information about baseline
populations (referred to by the petition as ``shifting baseline
syndrome'') has led to inadequate management targets for the species,
that sex-ratios are skewed in several areas of the range as a result of
overutilization of females in certain areas, and that a uniform
conservation approach will fail to provide effective conservation for
regional populations given niche divergence.\4\ The petition did not
provide specific information linking the lack of historical baseline
information to the extinction risk of the species (see Abundance,
Status, and Population Trends section). While the petition provides
information detailing skewed sex ratios for Raritan Bay and Sandy Hook,
New Jersey (SCW 2023), there is insufficient information provided to
support other claims (generally identified above) regarding this skewed
ratio being linked to harvest in New York or overall preferential
harvesting of females coastwide. Instead, information in the petitions
and in our files indicates higher impacts to male Atlantic HSCs (ASMFC
2019, 2022d, 2023d, 2024a, b). For example, the AMFC's ISFMP requires
states with greater than 5 percent of the coastal landings to report
the Atlantic HSC sex for a portion of their bait harvest (ASMFC 2004).
In 2023, the latest annual review of the fishery, this requirement
applied to the states of Massachusetts, New York, Delaware, Maryland,
and Virginia (east of the Convention on the International Regulations
for Preventing Collisions at Sea (COLREGs) line), with the ASMFC
allocating quota for male-only harvest in New Jersey, Delaware,
Maryland, and Virginia (ASMFC 2024b). According to the ASMFC (2024b),
in 2023, within the states of New York, Delaware, Maryland, and
Virginia, 77 percent of reported bait landings were male, 5 percent
were female, and 18 percent were unclassified; data for Massachusetts
were not received in time for the 2023 fishing year report and, as
such, were not included in the annual review of landings (ASMFC 2024b).
According to the ASMFC (2024b), ``reported coastwide landings since
1998 show more male than female horseshoe crabs were harvested
annually.'' In particular, 52.9 percent of the coastwide biomedical
mortalities were reported to be males and 42.1 percent were female in
2023 (ASMFC 2024b). Further, Atlantic HSC experts point out that skewed
ratios at spawning beaches may not be indicative of female population
declines, as increasing male numbers on spawning beaches can be an
early sign of a growing population because males mature earlier (ASMFC
2019). With regard to niche divergence, the petition claims that a one-
size-fits-all approach to conservation assessments, such as the ARM
Framework, will not preserve Atlantic HSCs. Information provided in the
petition and in our files does not indicate that the Northeast, New
York, Delaware Bay, and Southeast regional populations under the
jurisdiction of the ASMFC are being uniformly managed or conserved
using the ARM framework; refer back to Factor (B) Overutilization for
Commercial, Recreational, Scientific, or Educational Purposes, and
Factor (D) Inadequacy of Existing Regulatory Mechanisms sections where
we discuss not only how this species is managed under the ASMFC, but
also how the ARM Framework pertains specifically to the management of
the Delaware Bay regional population. Though conservation efforts vary
across the range, assessment information indicates improvements from
previous years as a result of various management strategies (ASMFC
2019, 2024a; Smith et al. 2017, 2023) (see also Abundance, Status, and
Population Trends section).
---------------------------------------------------------------------------
\4\ According to Zhu et al. (2020), niche divergence occurs when
populations enter a new environment, and the ecological niche (role)
of the species changes to adapt to the novel environment; these new
adaptations may subsequently lead to natural selection and
speciation over time.
---------------------------------------------------------------------------
The CBD petition claims that a global HSC decline should serve as a
warning for Atlantic HSC conservation and that, as noted in the Factor
(B), Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes section, declines in Asian crab populations will
cause subsequent declines in TAL production for the biomedical
industry. The petition notes that the lack of TAL could shift demands
to LAL and negatively impact the Atlantic HSC through increased
biomedical harvest. Information provided in the petitions indicates
that it is reasonable to expect that a decline in TAL could shift the
world-wide demand for amebocyte lysate to the Atlantic HSC (Smith et
al. 2017); however, an animal-free alternative has also been developed
and could stem this demand (Smith et al. 2023). Given the lack of
information with regard to the potential demand, we cannot draw
reasoned inferences about the extinction risk to the petitioned species
from this information.
Both petitions also assert that pollution (e.g., oil spills, urban
runoff) of coastal and intertidal waters is contributing to the
extinction risk of the species. The Friends of Animals petition claims
that ``oil spills during the horseshoe crab spawning season could
threaten populations in the Delaware Bay'' and refers to a statement in
Smith et al. (2016) that ``an oil spill that coincides with spawning
activity, with oil washed onto spawning beaches, could be catastrophic
to a local population,'' to support the petition claims. However, Smith
et al. (2017) state that although Delaware Bay has experienced oil
spills, ``the effects on the horseshoe crab population has not been
evident largely because the timing and spatial extent of the spills
have not overlapped with horseshoe crab spawning.'' Further, contrary
to the petition's assertions, the Friends of Animals petition admits
``that the Atlantic HSC has not yet been affected by an oil spill'' in
the Delaware Bay, and that such an event is ``a matter of chance.'' The
CBD petition also asserts that oil spills pose a threat to the Atlantic
HSC, citing several pieces of information that summarize laboratory
findings that suggest survival and development of early life stages may
be impacted by exposure to oil (Botton and
[[Page 7467]]
Itow 2009; Smith et al. 2017). However, neither Bottom and Itow (2009)
nor Smith et al. (2017) makes any definite conclusions about the impact
of oil exposure to early life stages and population sustainability.
Rather, Bottom and Itow (2009), based on the laboratory studies they
evaluated, concluded that early life stages (i.e., embryos and larvae)
of L. polyphemus are capable of surviving over a wide range of
contaminant levels and that the declines in Atlantic HSC populations in
the United States seen in the early 2000s were not related to pollution
events such as oil spills. Taking into consideration the above
information, neither petition provides substantial scientific evidence
to support its claims that oil spills have threatened or will threaten
the continued existence of Atlantic HSC throughout all or in a
significant portion of the species' range.
The CBD petition identifies urban pollutants from industrial,
municipal, and nonpoint sources as threatening the continued existence
of Atlantic HSC by potentially causing a range of effects from death to
developmental impairments to early life stages. However, while our
review of the information cited in the petition indicate that
laboratory studies conducted on early life stages of Atlantic HSC
exposed to pollutants, such as heavy metals, did cause mortality or
developmental impairments (Estes et al. 2021; Burger 2023), the CBD
petition provides no substantial scientific evidence to support the
petition claims that Atlantic HSCs may be at risk of extinction as a
result of such exposure. Considering the information provided in both
petitions, we are unable to draw reasonable inferences that exposure to
pollutants, either from oil spills or from industrial, municipal, and
non-point sources, may be measurably impacting the extinction risk of
this species throughout all or in a significant portion of the species'
range.
Both petitions identify impingement on either coastal
infrastructure or power plant intakes as threat to the continued
existence of the Atlantic HSC; the CBD petition also identifies
impingement or entrainment in dredges as a threat to the species.
Although the petitions cite several examples of incidences of observed
impingement of Atlantic HSCs occurring in local power plants in
Florida, Maryland, and Connecticut and HSCs impinged upon coastal
infrastructure (i.e., breakwaters) in localized areas of Delaware Bay
or Florida, none of the examples indicate that the magnitude of the
localized impingements events caused significant declines in the
affected population or threatened the continued existence of the
affected populations. The petitions, therefore, provide an incomplete
assessment of this potential threat, and, as a result, do not provide
sufficient scientific or commercial information to support their claims
that impingement threatens the continued survival of the species
throughout all or in a significant portion of the species' range.
Citing only Ray and Clark (2010), the CBD petition also asserts that
Atlantic HSC impingement and entrainment in dredges poses a potential
threat to the continued existence of the species. Our review of the
information provided by the petitions and in our files indicates that
dredging has resulted in impacts to this species in localized areas
where deepening of waterways has occurred (Ray and Clark 2010; Smith et
al. 2017, 2023); however, past studies, such as Ray and Clark (2010),
have informed management recommendations (e.g., inclusion of observers
on dredging vessels to monitor Atlantic HSC bycatch) as well as dredge
mitigation strategies (e.g., temporal and spatial dredge restrictions
during months of Atlantic HSC spawning) to reduce dredge entrainment
and impingement impacts to Atlantic HSCs. Further, in accordance with
the Fish and Wildlife Coordination Act (FWCA), NMFS provides
recommendations to entities that are seeking federal permits or
licenses (under the Clean Water and Rivers and Harbors Acts).
Acknowledging the findings of Ray and Clark (2010), the recommendations
provided by NMFS under the FWCA include seasonal restrictions on
dredging activities in nearshore waters to reduce impacts to Atlantic
HSCs, particularly in sensitive areas like Delaware Bay (Gorski et al.
2012). Smith et al. (2023) recognizes that localized impingement
threats can be reduced or prevented by engineered solutions. While
incidences of dredge entrainment or impingement may have localized
impacts on Atlantic HSC populations, information suggests that these
threats are actively managed to reduce their impact, as evidenced by
available population data indicating that most populations are stable
or increasing, despite ongoing localized dredging operations,
throughout all or in a significant portion of the species' range (see
Species Description and Abundance, Status, and Population Trends
sections). Altogether, while we acknowledge the potential for Atlantic
HSCs to experience impacts due to impingement on, or entrainment in,
power plants or dredges, as well as impingement on other coastal
infrastructure, we find that there is insufficient scientific or
credible information to indicate the petitioned action may be warranted
due to these interactions.
The Friends of Animals petition also identifies bycatch as another
factor that is contributing to extinction risk to the species. We
considered this claim under Factor (B) Overutilization for Commercial,
Recreational, Scientific, or Educational Purposes, and provide no
further information here.
Petition Finding
As explained in the Species Description and Abundance, Status, and
Population Trends sections, estimates of total Atlantic HSC abundance
regionally or range-wide do not exist; however, the status and trends
of regional populations have been described quantitatively or
qualitatively based on data collected from various mechanisms (e.g.,
fishery independent surveys, spawning and tagging studies, recruitment
rates) over the last 30 or more years. Overall, across the species'
range, most regional populations are considered to be stable or
increasing with the exception of the New York regional population (see
Species Description and Abundance, Status, and Population Trends
sections). However, there is no information provided in the petitions
or in our files to suggest that the New York regional population is a
significant portion of the species' range. In contrast, as previously
noted, information cited in the petitions and in our files suggests
that the Atlantic HSCs located within the center of the species' range,
specifically, the Mid-Atlantic's Delaware Bay (a component of the
Delaware Bay regional population), may be a significant portion of the
species' range.
Given the available information on the status and trends of the
species, we considered each of the ESA section 4(a)(1) factors to
determine whether any one of the factors may contribute significantly
to the extinction risk of the species. We also considered the
combination of those factors to determine whether they collectively
contribute significantly to extinction risk. Based on our synthesis and
integration of the foregoing information and the effects on the status
of the species throughout all or in a significant portion of the
species' range, we determined that the petition does not present
substantial scientific or commercial information indicating that the
petitioned action may be warranted.
To summarize, the factors supporting this conclusion include: (1)
the species
[[Page 7468]]
is broadly distributed over a large geographic range, occurring along
the U.S. Atlantic and Gulf coasts, to the Yucat[aacute]n Peninsula,
Mexico, with no marine barriers to dispersal; (2) genetic data indicate
that, with the exception of the regional population at the extremes of
the species' range (which show the highest degree of genetic
differentiation between each other and between other regional
populations within the bounds of these geographic extremes), regional
populations show connectivity (low genetic differentiation) among
populations, despite regional groupings; (3) there is no evidence of
current overutilization (i.e., bait fishery, biomedical industry) of
the species, as indicated by the stable to increasing population trends
for most regional populations across the species' range (see above);
(4) regulatory mechanisms implemented by the ASMFC, states, and/or the
FDA have effectively managed harvesting of Atlantic HSCs for bait or
biomedical purposes such that overuse of the species is currently not
occurring throughout all or in a significant portion of the species'
range; (5) there is no evidence that disease or predation is
contributing to increasing the risk of extinction; and (6) there is no
evidence that the species is currently suffering from depensatory
processes (such as reduced likelihood of finding a mate or mate choice
or diminished fertilization and recruitment success) or is at risk of
extinction due to environmental variation or anthropogenic
perturbations (e.g., coastal development) throughout all or in a
significant portion of the species' range.
As such, having thoroughly reviewed the information presented in
the petitions and other information readily available in our files, we
conclude the petitions do not present substantial scientific or
commercial information indicating that the petitioned action to list L.
polyphemus as a threatened or endangered species may be warranted.
References Cited
A complete list of all references cited herein is available upon
request (see FOR FURTHER INFORMATION CONTACT section).
Authority: The authority for this action is the Endangered Species
Act of 1973, as amended (16 U.S.C. 1531 et seq.).
Dated: February 10, 2026.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 2026-03198 Filed 2-17-26; 8:45 am]
BILLING CODE 3510-22-P
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