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Delaware General AssemblyDelaware RegulationsMonthly Register of RegulationsJanuary 2016

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Under the authority vested in the Secretary of the Department of Natural Resources and Environmental Control ("Department" or "DNREC") pursuant to 7 Del.C. §§6006, 6010, the following findings of fact based on the record, reasons and conclusions are entered as an Order of the Secretary in the above-referenced regulatory proceeding.
This Order relates to proposed revised regulation Amendments to 7 DE Admin. Code 3500: Tidal Finfish, to include new Section 3542, to wit: Tilefish (hereinafter referred to as "Tilefish regulations"). The Department's Division of Fish and Wildlife commenced the regulatory development process with Start Action Notice 2015-03 dated April 26, 2015. The Department published its initial proposed regulation Amendments in the June 1, 2015 Delaware Register of Regulations. The Department then held a public hearing on June 24, 2015. Consistent with 29 Del.C. §10118(a), the public hearing record remained open for public comment initially through July 9, 2015.
The purpose of this proposed regulatory promulgation is to adopt as final the aforementioned proposed Amendments to these Tilefish regulations ("Amendments"). Blueline Tilefish (Caulolatilus microps) is an ocean dwelling, deep water species that is susceptible to exploitation due to its long-lived, sedentary nature. The species is federally managed from North Carolina through Florida by the South Atlantic Fishery Management Council ("SAFMC") through the amended Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic (1983).
The SAFMC sharply reduced the Annual Catch Limits in 2014 based on results from the 2013 coastwide stock assessment, which indicated the Blueline Tilefish ("Blueline") was overfished and overfishing was occurring. The harvest reductions in the South Atlantic resulted in the commercial sector targeting Blueline in unregulated Mid-Atlantic States, primarily New Jersey. Reported landings from Virginia and northward have increased from approximately 11,000 pounds annually (average 2005-2013) to about 217,000 pounds in 2014. Most of these fish were caught in federal waters off the coast of Delmarva. Additionally, Northeast vessel trip reports from the recreational for-hire sector indicated that Blueline landings significantly increased in the areas from approximately Cape Hatteras to mid-New Jersey (Federal Statistical Areas 616-636). Virginia and Maryland, although not SAFMC member states, enacted the SAFMC Blueline Tilefish Regulations earlier this year, in response to the 2014 landings. The Mid-Atlantic Fishery Management Council ("MAFMC") then formally requested that all member states consider adopting incidental commercial trip limits and recreational bag limits that mirror current Virginia and Maryland state regulations. This request was followed by an emergency meeting of the MAFMC, in which the council voted to request that the National Marine Fisheries Service ("NMFS") implement emergency rules to restrict commercial and recreational landings of Blueline Tilefish in the Mid-Atlantic.
This proposed regulatory promulgation was re-published in the Register of Regulations on November 1, 2015, and comment was accepted through December 1, 2015. Accordingly, Mr. Michels provided this Hearing Officer with a supplemental TRM, dated December 7, 2015, which not only re-affirmed all information set forth in his initial TRM dated August 25, 2015, but also confirmed the re-publication of this proposed promulgation as described above, and that no opposition of the aforementioned clarification to the regulation language was received by the Department in this matter.
Based on the record developed by the Department's experts and established by the Hearing Officer's Report, I find that the proposed revised regulatory Amendments to 7 DE Admin. Code 3500: Tidal Finfish, to include new Section 3542, to wit: Tilefish, are well-supported. Therefore, the recommendations of the Hearing Officer are hereby adopted, and I direct that the proposed regulatory revised Amendments be promulgated as final.
I find that the Department's experts in the Division of Fish and Wildlife fully developed the record to support adoption of these revised regulatory Amendments. The adoption of these revised regulatory Amendments will allow Delaware to (1) adopt new regulations with regard to Delaware's management of Tilefish, consistent with the MAFMC's request and input from Delaware's Advisory Council on Tidal Finfisheries; (2) constrain harvest and prevent an unmanaged expansion of the Blueline Tilefish fishery until more data become available; (3) implement the following possession limits for both Blueline Tilefish and Golden Tilefish, to wit: an aggregated (i.e., both Blueline Tilefish and Golden Tilefish) seven (7) fish recreational possession limit and a 300 pound aggregated commercial possession limit; and (4) provide additional clarity and a greater understanding to the regulated community with regard to the terms "possess" and "aboard a vessel" as a result of the substantive changes made to this proposed regulatory promulgation.
1. The Department has the statutory basis and legal authority to act with regard to the proposed revised Amendments to 7 DE Admin. Code 3500: Tidal Finfish, to include new Section 3542, to wit: Tilefish, pursuant to 7 Delaware Code, Sections §§901 (c & d), 903(e)(3);
2. The Department has jurisdiction under its statutory authority, pursuant to 7 Del.C. Ch. 60, to issue an Order adopting these proposed revised regulatory Amendments as final;
4. Due to substantive changes made to the proposed regulatory language, the Department caused the revised proposed regulatory amendments to be re-published in the State of Delaware Register of Regulations on November 1, 2015, provided the public with an additional 30 days to comment on the same, and held the record open through close of business on December 1, 2015, in order to consider all public comment on these proposed revised regulatory amendments before making any final decision;
5. The Department's Hearing Officer's Report, including its established record and the recommended proposed revised regulatory Amendments as set forth in its Appendix "B", are hereby adopted to provide additional reasons and findings for this Order;
6. The adoption of these proposed revised regulatory Amendments will allow Delaware to (1) adopt new regulations with regard to Delaware's management of Tilefish, consistent with the MAFMC's request and input from Delaware's Advisory Council on Tidal Finfisheries; (2) constrain harvest and prevent an unmanaged expansion of the Blueline Tilefish fishery until more data become available; (3) implement the following possession limits for both Blueline Tilefish and Golden Tilefish, to wit: an aggregated (i.e., both Blueline Tilefish and Golden Tilefish) seven (7) fish recreational possession limit and a 300 pound aggregated commercial possession limit; and (4) provide additional clarity and a greater understanding to the regulated community with regard to the terms "possess" and "aboard a vessel" as a result of the substantive changes made to this proposed regulatory promulgation;
7. The Department has reviewed these proposed revised regulatory Amendments in the light of the Regulatory Flexibility Act, consistent with 29 Del.C. Ch. 104 (version applicable to all regulations initially published on or before December 31, 2015), and believes the same to be lawful, feasible and desirable, and that the recommendations as proposed should be applicable to all Delaware citizens equally;
8. The Department's proposed revised regulatory Amendments, as re-published in the November 1, 2015 Delaware Register of Regulations, are adequately supported, are not arbitrary or capricious, and are consistent with the applicable laws and regulations. Consequently, they are approved as final revised regulatory amendments, which shall go into effect ten days after their publication in the next available issue of the Delaware Register of Regulations; and
9. The Department shall submit this Order approving as final the proposed revised Amendments to 7 DE Admin. Code 3500: Tidal Finfish, to include new Section 3542, to wit: Tilefish, to the Delaware Register of Regulations for publication in its next available issue, and provide such other notice as the law and regulation require and the Department determines is appropriate.
1.0 Tilefish possession limits
1.1 It is unlawful for a recreational finfisherman to possess aboard a vessel more than seven (7) tilefish in aggregate to include blueline tilefish (Caulolatilus microps) or golden tilefish (Lopholatilus chamaelonticeps), unless otherwise authorized by the Department.
1.2 Notwithstanding the provisions of subsection 1.1, a person issued a valid commercial food fishing license may possess aboard a vessel up to 300 pounds of tilefish in aggregate to include blueline tilefish (Caulolatilus microps) or golden tilefish (Lopholatilus chamaelonticeps) in any number, provided said tilefish were taken using gear for which said person is lawfully permitted under 7 Del.C. §915.
1.3 It is unlawful for a person issued a valid commercial food fishing license to possess aboard a vessel more than 300 pounds of tilefish in aggregate to include blueline tilefish (Caulolatilus microps) or golden tilefish (Lopholatilus chamaelonticeps).
Last Updated: December 31 1969 19:00:00.
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