DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL

Division of Fish and Wildlife

Statutory Authority: 7 Delaware Code, Section 6010, (7 Del. C. §6010)

FINAL

Order No. 2006F-0014

Summary of Evidence and Information

Pursuant to due notice 9, issue 8 DE Reg. 1139, (2/1/06), The Department of Natural Resources and Environmental Control proposes to amend Tidal Finfish Regulation Nos. 3511 and 3507 pertaining to summer flounder and black sea bass respectively. For summer flounder six options were proposed to restrain the recreational harvest to conform to the harvest cap of 116,000 fish imposed on Delaware for the 2006 fishing season by the Atlantic States Marine Fisheries Commission’s (ASMFC) regional fisheries management plan. The proposed regulation for black sea bass would exclude the caudal filament as part of the total length measurement.

The options presented for summer flounder and the changes associated with the black sea bass regulation are necessary for Delaware to remain in compliance with the Atlantic States Marine Fisheries Commission fishery management plan provisions for these species and all of the options presented have been pre-judged to be in compliance with the mandatory provisions of these fishery management plans.

A public hearing was held on the proposed amendments to Regulations 3511 and 3507 on March 9, 2006. Comments were taken on the six options for summer flounder. No comments were presented for the changes in black sea bass regulation. Written testimony was received via email and included into the record.

Findings of Fact

• There was no opposition to the proposed elimination of the caudal filament when determining total length for black sea bass.

• Among the sixteen people who spoke on the record at the public hearing eight supported Option 6 because they felt that New Jersey and Delaware should have the same size (16.5”) limit. Four individuals supported Option 2 and four individuals supported Option 4. These two options were based on a 17” minimum size with two different bag limits. The individuals that supported these two options expressed concern about possibly exceeding the harvest cap if the size limit were smaller than 17”. These individuals were aware of the consequences that could occur if the harvest cap were exceeded in 2006 and definitely did not want to see a seasonal restriction implemented in 2007 if at all possible. They were concerned that a smaller size limit would result in an overage and therefore require a seasonal closure in 2007.

• The Division received sixty three emails as part of the public input process regarding comments on the six proposed options for management of the recreational harvest of summer flounder in 2006. The majority of those people (29) who provide email comments supported Option 2. These individuals felt that the 17” minimum size limit associated with this option would restrain the harvest within the harvest cap with only minimal chance of exceeding the harvest cap of 116,000 fish. Thirteen (13) individuals provided comments that supported Option 6. The primary focus for the support of this option dealt with the perceived need for the same size limit for all individuals fishing in Delaware Bay. Option 4 which was based on a 17” minimum size with a six fish creel limit received eight (8) supporting emails while Option 5 received six (6) endorsements.

• Option 1, status quo, received six (6) email endorsements from individuals that felt that the current management system should remain in place for the 2006 fishing season.

• The Atlantic States Marine Fisheries Commission (ASMFC) provided written comments which summarized the findings from the Commission’s Technical Committee review of the six Delaware options for managing the recreational harvest of summer flounder in 2006. These findings indicate that Options 1, 2, 3, and 4 were perceived to have only a minimal risk of exceeding the state’s harvest cap in 2006. However, the members of the Technical Committee cautioned that Options 5 and 6 had a much higher level of risk for exceeding the harvest cap of 116,000 fish in 2006. The committee indicated that due to the uncertainty in the size composition and discards in the recreational harvest, Options 5 and 6 carry a higher level of associated risk than the other options presented.

Conclusions

I have reached the following conclusions:

• Delaware and the surrounding states are required to restrain the recreational harvest of summer flounder to a harvest cap level that is calculated individually for each state. The cap is predicated on state landings of recreationally caught summer flounder in 1998 and consequently all states have different caps. The individual state harvest cap is a compliance requirement in the ASMFC summer flounder FMP. In order to avoid any action by ASMFC, which under a worse case scenario could result in a Federal moratorium on fishing for summer flounder in Delaware, it will be necessary to require management measurers in 2006 that will restrain the harvest within the 116,000 fish cap.

• Information presented at the public hearing by the Department indicates that based on historical landings data state anglers exceeded the 2006 cap in 2001 and 2004 despite the fact that a 17.5” minimum size limit was in place. In addition, average landings for the periods 2001 through 2005 indicate that the level of harvest was almost equivalent with the 2006 harvest cap despite the fact that a 17.5” minimum size and four fish creel limit were in place. Furthermore, an analysis that projects estimated 2006 landings, based on 2005 catch and discard data, suggests that the harvest cap could be exceeded in Options 5 and 6 which both employ a minimum fish size of 16.5”.

• Technical review of Delaware’s six management options, by the ASMFC Technical Committee, indicates that a higher probability of exceeding the 2006 harvest cap exists if options 5 and 6 are adopted. Uncertainty associated with summer flounder harvest size composition data and discard size frequencies contribute to the higher level of risk incumbent with the management options that utilize a 16.5” minimum size limit.

• The majority of people who commented, via email, supported Option 2, while those individuals that responded for the record at the public hearing were split between those options with the 17” minimum size (2 and 4) and Option 6 with the 16.5” minimum size. Those individuals that supported the 16.5” minimum size cited the need for a compatible size limit with New Jersey while fishing in Delaware Bay. The responders that supported the 17” minimum size felt that this larger size limit would help restrain the harvest as required by the ASMFC harvest cap.

• Only six emails supported the status quo and no one at the public meeting spoke in favor of Option 1 which would have maintained the current management program based on a 17.5” minimum size and four fish bag limit.

• Delaware’s minimum size limit, for recreational anglers in 2006, should be reduced to 17” with a creel limit of 4 fish per day. This approach should restrain the harvest within the confines of the 116,000 fish harvest cap as required by ASMFC and based on public input has a wide range of support amongst those individuals that commented on the public record.

• The current regulation for Black Sea Bass should be amended to exclude the caudal filament as part of the measurement for total length. This change in regulations will insure that Delaware’s management program is consistent with the majority of the coastal states from Massachusetts to North Carolina.

ORDER

It is hereby ordered this ______ day in March in the year 2006 that an amendment to the Tidal Finfish Regulation Nos. 3507 and 3511, copies of which are attached hereto, is adopted pursuant to 7 Del.C. §903(e)(2)(a) and is supported by the Department findings of evidence and testimony received. This Order shall become effective on May 11, 2006.

John A. Hughes, Secretary, Department of Natural Resources and Environmental Control

3507 Black Sea Bass Size Limit; [Trip Limits, Landing Permits; Qualifying Criteria;] Seasons; Quotas (Formerly Tidal Finfish Reg. 23)

(Penalty Section 7 Del.C. §936(b)(2))

1.0 It shall be unlawful for any commercial person to have in possession any black sea bass (Centropristis striata) that measures less than eleven (11) inches, total length excluding any caudal filament.

9 DE Reg. 1759 (5/1/06)

2.0 It shall be unlawful for any recreational person to have in possession any black sea bass that measures less than twelve (12) inches total length excluding any caudal filament.

6 DE Reg. 1230 (3/1/03)

6 DE Reg. 1360 (4/1/03)

9 DE Reg. 1759 (5/1/06)

3.0 It shall be unlawful for any commercial fisherman to land, to sell, trade and or barter any black sea bass in Delaware unless authorized by a black sea bass landing permit issued by the Department. The black sea bass landing permit shall be presumed to transfer with the vessel whenever it is bought, sold, or otherwise transferred, unless there is a written agreement, signed by the transferor/seller and transferee/buyer, or other credible written evidence, verifying that the transferor/seller is retaining the vessel’s fishing and permit history for purposes of replacing the vessel.

4.0 The black sea bass pot fishery and the black sea bass commercial hook and line fishery shall be considered separate black sea bass fisheries. The total pounds allocated to each fishery by the Department shall be as follows: 96 percent of the State’s commercial quota, as determined by the ASMFC, for the pot fishery; 4 percent for the commercial hook and line fishery.

5.0 The Department may only issue a black sea bass landing permit for the pot fishery to a person who is the owner of a vessel permitted by the National Marine Fisheries Service in accordance with 50 CFR §§ 648.4 and who had applied for and secured from the Department a commercial food fishing license and has a reported landing history in either the federal or state reporting systems of landing by pot at least 10,000 pounds of black sea bass during the period 1994 through 2001. Those individuals that have landing history only in the federal data base must have possessed a state commercial food fishing license for at least one year during the time from 1994 through 2001.

6.0 The Department may only issue a black sea bass landing permit for the commercial hook and line fishery to a person who has applied for and secured from the Department a commercial food fishing license and a fishing equipment permit for hook and line and submitted landings reports in either the federal or state landing report systems for black sea bass harvested by hook and line during at least one year between 1994 and 2001.

1 DE Reg. 1767 (5/1/98)

2 DE Reg. 1900 (4/1/99)

3 DE Reg. 1088 (2/1/00)

4 DE Reg. 1665 (4/1/01)

4 DE Reg. 1859 (5/1/01)

5 DE Reg. 2142 (5/1/02)

6 DE Reg. 348 (9/1/02)

6 DE Reg. 1230 (3/1/03)

9 DE Reg. 1759 (5/1/06)

7.0 Any overage of the State's commercial quota will be subtracted by the Atlantic States Marine Fisheries Commission from the next year's commercial quota.

Any overage of an individual’s allocation will be subtracted from that individual's allocation the next year and distributed to those individuals in the appropriate fishery that did not exceed their quota.

8.0 Each participant in a black sea bass fishery shall be assigned a equal share of the total pounds of black sea bass allotted by the Department for that particular fishery. A share shall be determined by dividing the number of pre-registered participants in one of the two recognized fisheries into the total pounds of black sea bass allotted to the fishery by the Department. In order to pre-register an individual must indicate their intent in writing to participate in this fishery [by 4:30 PM on a date no later than 15 days after this regulation is signed by the Secretary of the Department].

9 DE Reg. 1759 (5/1/06)

9.0 It shall be unlawful for a commercial food fisherman to transfer quota allocation shares of black sea bass to another commercial food fishermen.

10.0 Each commercial food fishermen participating in a black sea bass fishery shall report to the Department, via the interactive voice phone reporting system operated by the Department, each days landings in pounds at least one hour after packing out their harvest.

11.0 It shall be unlawful for any recreational fisherman to have in possession more than 25 black sea bass at or between the place where said black sea bass were caught and said recreational fisherman’s personal abode or temporary or transient place of lodging.

7 DE Reg. 1575 (5/1/04)

6 DE Reg. 1230 (3/1/03)

8 DE Reg. 1488 (4/1/05)

9 DE Reg. 1759 (5/1/06)

3511 Summer Flounder Size Limits; Possession Limits; (Formerly Tidal Finfish Reg. 4)

(Penalty Section 7 Del.C. §936(b)(2))

1.0 It shall be unlawful for any recreational fisherman to have in possession more than four (4) [four (4)] summer flounder at or between the place where said summer flounder were caught and said recreational fisherman's personal abode or temporary or transient place of lodging. [(Note: creel limit to be determined in combination with seasonal closure and size limit.)]

9 DE Reg. 1759 (5/1/06)

2.0 It shall be unlawful for any person, other than qualified persons as set forth in section 4.0 of this regulation, to possess any summer flounder that measure less than seventeen and one-half (17.5) [seventeen (17)] inches between the tip of the snout and the furthest tip of the tail. [(Note: creel limit to be determined in combination with seasonal closure and size limit.)]

7 DE Reg. 1575 (5/1/04)

9 DE Reg. 1759 (5/1/06)

3.0 It shall be unlawful for any person while on board a vessel, to have in possession any part of a summer flounder that measures less than seventeen and one-half (17.5) [seventeen (17)] inches between said part's two most distant points unless said person also has in possession the head, backbone and tail intact from which said part was removed. [(Note: creel limit to be determined in combination with seasonal closure and size limit.)]

9 DE Reg. 1759 (5/1/06)

4.0 Notwithstanding the size limits and possession limits in this regulation, a person may possess a summer flounder that measures no less than fourteen (14) inches between the tip of the snout and the furthest tip of the tail and a quantity of summer flounder in excess of the possession limit set forth in this regulation, provided said person has one of the following:

4.1 A valid bill-of-sale or receipt indicating the date said summer flounder were received, the amount of said summer flounder received and the name, address and signature of the person who had landed said summer flounder;

4.2 A receipt from a licensed or permitted fish dealer who obtained said summer flounder; or

4.3 A bill of lading while transporting fresh or frozen summer flounder.

4.4 A valid commercial food fishing license and a food fishing equipment permit for gill nets.

5.0 It shall be unlawful for any commercial finfisherman to sell, trade and or barter or attempt to sell, trade and or barter any summer flounder or part thereof that is landed in this State by said commercial fisherman after a date when the de minimis amount of commercial landings of summer flounder is determined to have been landed in this State by the Department. The de minimis amount of summer flounder shall be 0.1% of the coast wide commercial quota as set forth in the Summer Flounder Fishery Management Plan approved by the Atlantic States Marine Fisheries Commission.

6.0 It shall be unlawful for any vessel to land more than 200 pounds of summer flounder in any one day in this State.

7.0 It shall be unlawful for any person, who has been issued a commercial food fishing license and fishes for summer flounder with any food fishing equipment other than a gill net, to have in possession more than four (4) [four (4)] summer flounder at or between the place where said summer flounder were caught and said person's personal abode or temporary or transient place of lodging. [(Note: creel limit to be determined in combination with seasonal closure and size limit.)]

1 DE Reg. 1767 (5/1/98)

2 DE Reg. 1900 (4/1/99)

3 DE Reg. 1088 (2/1/00)

4 DE Reg. 1552 (3/1/01)

5 DE Reg. 462 (8/1/01)

5 DE Reg. 2142 (5/1/02)

6 DE Reg. 1358 (4/1/03)

7 DE Reg. 1575 (5/1/04)

8 DE Reg. 1488 (4/1/05)

9 DE Reg. 1759 (5/1/06) (Final)