DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL

Division of Fish and Wildlife

Statutory Authority: 7 Delaware Code, Sections 103, 1902, 2701, 2703 and Chapter 15

(7 Del.C. §§103, 1902, 2701, 2703 and Ch. 15)

7 DE Admin. Code 3203, 3207, 3210, 3211 and 3214

PROPOSED

REGISTER NOTICE

SAN# 2007-15

1. Title of the Regulations:

Horseshoe Crab Regulations: 3203 Seasons and Area Closed to Taking Horseshoe Crabs.

3207 Horseshoe Crab Dredging Restrictions.

3210 Horseshoe Crab Reporting Requirements.

3211 Horseshoe Crab Commercial Collecting Permit Eligibility and

Renewal Requirements.

3214 Horseshoe Crab Annual Harvest Limit.

2. Brief Synopsis of the Subject, Substance and Issues:

The Department adopted emergency regulations (Order Number 2007-F-0020) on June 11, 2007 to implement the horseshoe crab mandatory harvest provisions in Addendum IV of the Atlantic States Marine Fisheries Commission’s Interstate Fishery Management Plan for the Horseshoe Crab. As a follow-up to this Order, the Department is proposing regulations of a more lasting nature which would meet the intent of the emergency regulations adopted on June 11, 2007. These regulations would prohibit the harvest and landing of all horseshoe crabs in Delaware waters from January 1 through June 7 for two years, and prohibit the harvest and landing of female horseshoe crabs for the remainder of the year as well. During the period June 8 through December 31, up to 100,000 male horseshoe crabs may be harvested from approved harvest areas in Delaware. Commercial collectors of horseshoe crabs will have to report their landings daily during the open season in order to facilitate quota monitoring. Instead of just allowing harvesting during certain days of the week, it is proposed that beach collecting be permitted Monday through Friday between June 8 and June 30 from Port Mahon Road and private beaches where collecting is presently legal. This proposed measure will allow beach collectors to harvest male horseshoe crabs under the proposed quota system more efficiently during the period when harvesting is permitted. Since no harvesting is allowed prior to June 8, there should be no additional impacts to shorebirds from allowing harvesting five days per week. Permit renewal requirements will be aligned with other shellfish licenses. Specifically, horseshoe crab commercial beach collecting permits must be renewed annually by December 31 of each calendar year or the person holding the collecting permit forfeits their eligibility to obtain a horseshoe crab commercial collecting permit in subsequent years. This option permits harvest to resume after the period of time that the shorebirds normally have migrated north of Delaware that depend on horseshoe crab eggs as a food source, and after a significant portion of the horseshoe crab spawning has occurred in a normal year. By harvesting only male horseshoe crabs, females would be further protected and will be available to participate in the annual spawn without being subject to harvest at any point during the year.

3. Possible Terms of the Agency Action:

This regulation will be re-considered in light of horseshoe crab population trends and further action by the Atlantic States Marine Fisheries Commission beginning in 2009.

4. Statutory Basis or Legal Authority to Act:

§103, §1902, §2701 and §2703 of 7 Delaware Code and Chapter 15 of 7 Delaware Code.

5. Other Regulations That May Be Affected by the Proposal:

N/A

6. Notice of Public Comment:

Individuals may address questions to the Fisheries Section, Division of Fish and Wildlife, (302) 739-3441. A public hearing on these proposed regulations will be held in the Department of Natural Resources and Environmental Control Auditorium, at 89 Kings Highway, Dover, DE at 7:00 PM on September 24, 2007. Individuals may present their opinion and evidence either at the hearing or in writing to Lisa Vest, Hearing Officer, Department of Natural Resources and Environmental Control, 89 Kings Highway, Dover, DE 19901 or via e-mail to Lisa.Vest@state.de.us. The hearing record will remain open for written or e-mail comments until 4:30 PM September 30, 2007.

7. Prepared By:

Roy W. Miller 302-739-9914 August 7, 2007

3200 Horseshoe Crabs

3201 Definitions (Formerly S-50 & HC-1)

(Suspended effective January 1, 2007, See 3215 Horseshoe Crab Harvest Moratorium)

(Penalty Section 7 Del.C. §1912)

1.0 The following definitions shall apply to terms in 7 Del.C. Ch. 27 relative to horseshoe crabs.

1.1 “Bait Saving Device” shall mean any device that when so deployed in or on a pot reduces either the rate at which bait, meaning horseshoe crabs or parts thereof, must be replenished or reduces the number or quantity of horseshoe crabs used as bait.

1.2 “Collect” shall mean to take live horseshoe crabs by any means other than by dredge.

1.3 “Dispose of said Crabs Properly” shall mean bury on the beach, incorporate into soil as fertilizer or any other method approved by the Department.

1.4 “Dredge” shall mean to use any device to gather, scrape, scoop, fish for or otherwise take bottom dwelling horseshoe crabs.

1.5 “Personal, Non-Commercial Use” shall mean to be used as food, fertilizer or bait or otherwise properly disposed without trading, bartering, or selling by one individual to another, or without transporting, shipping, or causing to be transported or shipped, out of state.

7 DE Reg. 220 (8/1/03)

10 DE Reg. 1029 (12/01/06)

3202 Horseshoe Crabs As Bait In Pots; Conch Pots (Formerly HC- 2)

(Penalty Section 7 Del.C. §1912)

1.0 It shall be unlawful for any person to place more than one-half of a female horseshoe crab or one male horseshoe crab as bait in any type of pot on any one day in the waters of this State.

2.0 It shall be unlawful for any person to fish with a conch pot that is not equipped with a bait saving device, provided that a horseshoe crab or parts thereof are used as bait.

7 DE Reg. 220 (8/1/03)

3203 Seasons And Area Closed To Taking Horseshoe Crabs (Formerly S-51 & HC-3)

(Suspended effective January 1, 2007, See 3215 Horseshoe Crab Harvest Moratorium)

(Penalty Section 7 Del.C. §1912)

1.0 It shall be unlawful for any person to dredge or attempt to collect by means of a dredge horseshoe crabs or parts thereof from any state or federal land owned in fee simple or the tidal waters of this state during a period beginning at 12:01 am on May 1 January 1 and continuing through midnight, June 30, next ensuing. After June 30 in any given calendar year, it shall be unlawful to dredge or attempt to collect by means of a dredge female horseshoe crabs.

2.0 It shall be lawful for persons with valid horseshoe crab collecting permits and eel licensees and their alternates to collect adult male horseshoe crabs on Tuesday and Thursday Monday through Friday from state owned lands to the east of state road No. 89 (Port Mahon Road) from 12:01 a.m. on June 8 and continuing through midnight on June 30.

3.0 It shall be unlawful for any person to collect or attempt to collect, any horseshoe crabs or parts thereof from any land not owned by the state or federal government during the period beginning at 12:01 a.m. on May 1 January 1 and continuing through midnight, June 7, next ensuing. It shall be lawful, during a period beginning at 12:01 a.m. on June 8 and continuing through midnight on June 30, for persons with valid horseshoe crab collecting permits and eel licensees and their alternates to collect male horseshoe crab adults on Mondays, Wednesdays and Fridays Monday through Friday from such private lands.

4.0 It shall be unlawful for any person to collect or attempt to collect any horseshoe crabs from any land not owned by the State or federal government unless said person has on his or her person written permission, signed by the owner of said land with the owner's address and phone number, indicating the individual to whom permission to collect horseshoe crabs is granted.

5.0 It shall be unlawful for any person to collect or dredge or to attempt to collect or dredge horseshoe crabs at any time prior to May 1 in any given year after the date the Department determines 35% of the annual quota of horseshoe crabs, approved for Delaware by the Atlantic States Marine Fisheries Commission, is landed.

1 DE Reg 1412 (4/1/98)

7 DE Reg. 220 (8/1/03)

10 DE Reg. 1029 (12/01/06)

3204 Requirement For Collecting Horseshoe Crabs For Persons Under 16 (Formerly S-52 & HC-4)

(Suspended effective January 1, 2007, See 3215 Horseshoe Crab Harvest Moratorium)

(Penalty Section 7 Del.C. §1912)

1.0 It shall be unlawful for any person with a valid horseshoe crab collecting permit to collect any horseshoe crabs as an alternate to a person with a valid commercial eel fishing license.

2.0 It shall be unlawful for any person under the age of sixteen (16) years to possess any horseshoe crabs unless accompanied by a person who has been issued a valid horseshoe crab scientific collecting, commercial collecting or dredge permit.

3 DE Reg 1092 (2/1/00)

7 DE Reg. 220 (8/1/03)

10 DE Reg. 1029 (12/01/06)

3205 Number Of Persons Accompanying A Person With A Valid Horseshoe Crab Collecting Permit (Formerly S-53 & HC-5)

(Suspended effective January 1, 2007, See 3215 Horseshoe Crab Harvest Moratorium)

(Penalty Section 7 Del.C. §1912)

1.0 It shall be unlawful for any person with a valid horseshoe crab commercial collecting permit when collecting horseshoe crabs to be assisted by more than three (3) persons under the age of 16 who are not required to have valid horseshoe crab commercial collecting permits.

2.0 It shall be unlawful for any person 16 years of age or older who does not have a valid commercial horseshoe crab collecting permit, to assist any person with a valid commercial horseshoe crab collecting permit in the handling, loading or driving a vehicle used to transport horseshoe crabs collected by said horseshoe crab collecting permittee while within 300 feet of the shoreline of the water from which said horseshoe crabs are collected or the point on shore where said horseshoe crabs are landed from a vessel.

3 DE Reg 1092 (2/1/00)

7 DE Reg. 220 (8/1/03)

10 DE Reg. 1029 (12/01/06)

3206 Possession Limit Of Horseshoe Crabs, Exceptions (Formerly S-54 & HC-6)

(Suspended effective January 1, 2007, See 3215 Horseshoe Crab Harvest Moratorium)

(Penalty Section 7 Del.C. §1912)

1.0 Unless otherwise authorized, it shall be unlawful for any person to possess a horseshoe crab, except a person with a validated receipt from a person with a valid horseshoe crab commercial collecting or dredge permit for the number of horseshoe crabs in said person's possession. A receipt shall contain the name, address and signature of the supplier, the date and the number of horseshoe crabs obtained.

2.0 Any person who has been issued a valid commercial eel fishing license by the Department or said person's alternate while in the presence of the licensee, is exempt from the prohibition on the possession of horseshoe crabs, provided said commercial eel fishing licensee has submitted all required reports of his/her and his/her alternate's previous week's harvest of horseshoe crabs with the Department in accordance with Regulation 3210. Any person who has been issued a commercial eel fishing license and said person's alternate while in the presence of the licensee, may collect horseshoe crabs by hand without a horseshoe crab commercial collecting permit provided all horseshoe crabs taken are for personal, non-commercial use, as bait for the licensee's eel pots fished in this state.

1 DE Reg 1412 (4/1/98)

3 DE Reg 1567 (5/1/00)

3.0 It shall be unlawful for any person with a valid commercial eel fishing license to be assisted in collecting horseshoe crabs by any person who is not listed on his commercial eel fishing license as the alternate.

4.0 Any person with both a valid commercial eel fishing license and a valid commercial horseshoe crab collecting permit shall be considered as a commercial horseshoe crab collecting permittee for purposes of enforcing the provisions of 7 Del.C. Ch. 27 and/or shellfish regulations pertaining to horseshoe crabs.

5.0 It shall be unlawful for any person with a valid commercial eel fishing license to commingle any horseshoe crabs collected either by said commercial eel fishing licensee or by his or her alternate with horseshoe crabs either collected by a person with a valid horseshoe crab dredge permit or by a person with a valid commercial horseshoe crab collecting permit.

6.0 It shall be unlawful for any person with a valid horseshoe crab dredge permit or with a valid commercial horseshoe crab collecting permit to commingle any horseshoe crab dredged or collected by said horseshoe crab dredge permittee or horseshoe crab collecting permittee with horseshoe crabs collected by any person with a valid commercial eel fishing license.

7.0 It shall be unlawful for any person to possess more than 300 cubic feet of horseshoe crabs except in a stationary cold storage or freezer facility.

8.0 It shall be unlawful for any person to collect or attempt to collect more than 300 cubic feet of horseshoe crabs during any 24 hour period beginning at 12:01 AM and continuing through midnight next ensuing.

3 DE Reg 1092 (2/1/00)

3 DE Reg 1567 (5/1/00)

7 DE Reg. 220 (8/1/03)

10 DE Reg. 1029 (12/01/06)

3207 Horseshoe Crab Dredging Restrictions (Formerly S-55 & HC-7)

(Suspended effective January 1, 2007, See 3215 Horseshoe Crab Harvest Moratorium)

(Penalty Section 7 Del.C. §1912)

1.0 It shall be unlawful for any person to dredge horseshoe crabs in the area in Delaware Bay designated as leased Sshellfish grounds except on one's own leased shellfish grounds or with permission from the owner of leased shellfish grounds. The area in Delaware Bay designated as leased shellfish grounds is within the boundaries that delineate leasable shellfish grounds and is described as follows: Starting at a point on the "East Line" in Delaware at Loran-C coordinates 27314.50/42894.25 and continuing due east to a point at Loran-C coordinates 27294.08/42895.60 and then 27270.80/42852.83 and then continuing southwest to a point at Loran-C coordinates 27281.31/42803.48 and then continuing west to a point at Loran-C coordinates 27280.75/42795.50 and then in a northerly direction on a line 1000' offshore, coterminous with the existing shoreline to the point of beginning on the "East Line."

2.0 It shall be unlawful for any person, who operates a vessel and has on board said vessel a dredge of any kind, to have on board or to land more than 1500 horseshoe crabs during any 24 hour period beginning at 12:01 a.m. and continuing through midnight next ensuing.

1 DE Reg 354 (10/1/97)

3 DE Reg 1567 (5/1/00)

3.0 It shall be unlawful for any person, who operates a vessel and has on board said vessel a dredge of any kind, to have or possess on board said vessel any horseshoe crabs at any time during the period beginning 12:01 a.m. on May January 1 and continuing through midnight, June 30, next ensuing.

1 DE Reg 1412 (4/1/98)

4.0 It shall be unlawful for any person to land horseshoe crabs taken from the Exclusive Economic Zone unless said person has a valid horseshoe crab dredge permit."

3 DE Reg 1567 (5/1/00)

7 DE Reg. 220 (8/1/03)

10 DE Reg. 1029 (12/01/06)

3208 Horseshoe Crab Dredge Permit Lottery (Formerly S-55A & HC-8)

(Suspended effective January 1, 2007, See 3215 Horseshoe Crab Harvest Moratorium)

(Penalty Section 7 Del.C. §1912)

1.0 The Department of Natural Resources and Environmental Control shall hold an annual lottery to select eligible individuals for the five horseshoe crab dredge permits authorized to be issued each year if more than five applications are received by the Department. Applications for an annual commercial horseshoe crab permit shall be accepted by the Department until 4:30 PM December 31 or 4:30 PM on the Friday preceding if December 31 is a Saturday or Sunday. If an annual lottery is necessary it shall be conducted at 1:00 PM on January 1, or the first work day thereafter, in the Richardson and Robbins Building, 89 Kings Highway, Dover, Delaware."

3 DE Reg. 652 (11/1/99)

2.0 To be eligible an applicant for a horseshoe crab dredge permit shall be the current holder of an oyster harvesting license issued by the Department."

2 DE Reg 1055 (1/1/99)

5 DE Reg. 1128 (11/1/01)

7 DE Reg. 220 (8/1/03)

10 DE Reg. 1029 (12/01/06)

3209 Horseshoe Crab Sanctuaries (Formerly S-56 & HC-9)

(Suspended effective January 1, 2007, See 3215 Horseshoe Crab Harvest Moratorium)

(Penalty Section 7 Del.C. §1912)

1.0 All state and federal lands owned in fee simple are horseshoe crab sanctuaries during the period beginning 12:01 a.m. on May 1 through midnight June 30.

2.0 Any land owner(s) may register their land with the Department to be designated as a horseshoe crab sanctuary for a period to be specified by the land owner(s).

3.0 It shall be unlawful to collect any horseshoe crabs at any time from a horseshoe crab sanctuary except as provided in Regulation 3203 section 2.0.

1 DE Reg 354 (10/1/97)

1 DE Reg 1412 (4/1/98)

7 DE Reg. 220 (8/1/03)

10 DE Reg. 1029 (12/01/06)

3210 Horseshoe Crab Reporting Requirements (Formerly S-57 & HC-10)

(Suspended effective January 1, 2007, See 3215 Horseshoe Crab Harvest Moratorium)

(Penalty Section 7 Del.C. §1912)

1.0 It shall be unlawful for any person who has been issued a horseshoe crab dredge permit, a horseshoe crab commercial collecting permit or a commercial eel pot license to not report his/her harvest of horseshoe crabs to the Department on a weekly daily basis. Said weekly daily reports shall not be required to be submitted to the Department during any month said person indicates previously in writing to the Department that he/she will not be harvesting horseshoe crabs. Any person required to submit a weekly daily report on his/her harvest of horseshoe crabs to the Department shall submit said report on or before 4:30PM on the Monday following the week covered by said report. If Monday is a legal State holiday, said report shall be submitted on or before 4:30PM on Tuesday, next ensuing phone in said report within 24 hours of said harvesting. For purposes of this section, a week shall commence at 12:01AM on Monday and conclude at midnight on Sunday, next ensuing. Said report shall include but not be limited to said person's unique identification number assigned by the Department, the dates and location horseshoe crabs were harvested, the number and sex of horseshoe crabs harvested and the method of harvest of horseshoe crabs. Said report shall be submitted to the Department by telephone by calling a phone number, dedicated by the Department for the reporting of harvested horseshoe crabs, and entering the required data by code or voice as indicated.

2.0 Any person who fails to submit a weekly daily report on his/her harvest of horseshoe crabs to the Department on time shall have his/her permit to dredge or his/her permit or authority to collect horseshoe crabs suspended until all delinquent reports on harvested horseshoe crabs are received by the Department.

3.0 In addition to the requirement to phone in weekly daily catch reports, horseshoe crab collectors and harvesters and commercial eel fishermen are required to compile and file monthly log sheets detailing daily landings of horseshoe crabs on forms supplied by the Department. These forms must be submitted by the 10th day of the month next ensuing. Failure to submit these monthly reports on a timely basis may be cause for horseshoe crab collecting or horseshoe crab dredge permit revocation or non-renewal of said permit the following year; or in the case of a commercial eel licensee, forfeiture of permission to possess or use horseshoe crabs as bait for the remainder of the year.

1 DE Reg 1413 (4/1/98)

3 DE Reg 1567 (5/1/00)

7 DE Reg. 220 (8/1/03)

10 DE Reg. 1029 (12/01/06)

3211 Horseshoe Crab Commercial Collecting Permit Eligibility And Renewal Requirements (Formerly S-59 & HC-11)

(Suspended effective January 1, 2007, See 3215 Horseshoe Crab Harvest Moratorium)

(Penalty Section 7 Del.C. §1912)

1.0 The Department may only issue a horseshoe crab commercial collecting permit to a person who makes application for such a permit in calendar year 1998, and who, prior to July 1, 1997, had applied for and secured from the Department at least 2 valid horseshoe crab commercial collecting permits. Any person holding a horseshoe crab commercial collecting permit in 1998 may apply for renewal of their horseshoe crab commercial collecting permit by April 1 December 31 each year. If any person holding a horseshoe crab commercial collecting permit from the previous year fails to apply for renewal of their horseshoe crab commercial collecting permit by April 1 December 31 in any given calendar year, they forfeit their eligibility to obtain a horseshoe crab commercial collecting permit in the future subsequent years.

1 DE Reg 1413 (4/1/98)

7 DE Reg. 220 (8/1/03)

10 DE Reg. 1029 (12/01/06)

3212 Prohibitions; Sale Of Horseshoe Crabs (Formerly S-60 & HC-12)

(Suspended effective January 1, 2007, See 3215 Horseshoe Crab Harvest Moratorium)

(Penalty Section 7 Del.C. §1912)

1.0 It shall be unlawful for any person who collects or dredges horseshoe crabs, except a person with a valid horseshoe crab commercial collecting permit or a person with a valid horseshoe crab dredge permit, to sell, trade and/or barter or to attempt to sell, trade and/or barter any horseshoe crab."

1 DE Reg 1413 (4/1/98)

7 DE Reg. 220 (8/1/03)

10 DE Reg. 1029 (12/01/06)

3213 Collecting Horseshoe Crabs At Night, Prohibited (Formerly S-61 & HC-13)

(Suspended effective January 1, 2007, See 3215 Horseshoe Crab Harvest Moratorium)

(Penalty Section 7 Del.C. §1912)

1.0 It shall be unlawful for any person with a valid commercial eel fishing license to collect horseshoe crabs between sunset and sunrise."

3 DE Reg 1092 (2/1/00)

7 DE Reg. 220 (8/1/03)

10 DE Reg. 1029 (12/01/06)

3214 Horseshoe Crab Annual Harvest Limit (Formerly S-62 & HC-14)

(Suspended effective January 1, 2007, See 3215 Horseshoe Crab Harvest Moratorium)

(Penalty Section 7 Del.C. §1912)

1.0 The annual harvest limit for horseshoe crabs taken and/or landed in the State shall be 150,000 100,000 male horseshoe crabs for a period of two years beginning January 1, 2007 or whatever the Atlantic States Marine Fisheries Commission has approved as Delaware's current annual quota, whichever number is less. No female horseshoe crabs may be taken/landed at any time.

2.0 When the Department has determined that the annual horseshoe crab quota has been met, the Department shall order the horseshoe crab fishery closed and no further horseshoe crabs may be taken during the remainder of the calendar year.

7 DE Reg. 220 (8/1/03)

10 DE Reg. 1029 (12/01/06)

3215 Horseshoe Crab Harvest Moratorium

1.0 Under the Department's authority granted in §2701(a) of 7 Del.C. to administer a program for the conservation and management of horseshoe crabs, it shall be unlawful for anyone, except as specified in §2702 and §2704(b) of 7 Del.C., to collect by means of a dredge or to collect or attempt to collect by any means any horseshoe crab or parts thereof from Delaware lands or waters for a period of two consecutive years beginning January 1, 2007. It shall further be unlawful to land from a vessel in Delaware any horseshoe crabs taken from outside of Delaware's jurisdiction for a period of two years beginning January 1, 2007. For the two-year term of this harvest moratorium, all other horseshoe crab regulations are suspended, except for Horseshoe Crab Regulation 3202. Those persons holding horseshoe crab collecting permits in 2006 shall retain their eligibility to apply for a commercial horseshoe crab collecting permit once the fishery is re-opened and must do so by December 31 of each year once the fishery is re-opened, or forfeit their eligibility to obtain a horseshoe crab commercial collecting permit in subsequent years.

10 DE Reg. 1029 (12/01/06)

11 DE Reg. 282 (09/01/07) (Prop.)