Skip to Page Content
Delaware.gov  |  Text OnlyGovernor | General Assembly | Courts | Elected Officials | State Agencies
 Photo: Featured Delaware Photo
 
 
 Phone Numbers Mobile Help Size Print Email

Delaware General AssemblyDelaware RegulationsMonthly Register of RegulationsSeptember 2017

Authenticated PDF Version

(7 Del.C. §903(h) and 29 Del.C. §10119)
7 DE Admin. Code 3511
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 and 6010, and 7 Del.C. §§901(c & d) and 903(e)(2), 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 regulatory Amendments to 7 DE Admin. Code 3511: Summer Flounder Size Limits; Possession Limits; Seasons ("Amendments"). On February 2, 2017, the Atlantic States Marine Fisheries Commission's ("ASMFC") Summer Flounder, Scup and Black Sea Bass Management Board approved Addendum XXVIII to the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan ("FMP"), thus maintaining regional management for the 2017 recreational Summer Flounder fishery. Addendum XXVIII requires each region to increase their Summer Flounder minimum size limit by one inch and adopt a no more than four fish possession limit to stay within the 2017 recreational harvest limit. This action only affects Delaware's existing 16-inch minimum size limit, as Delaware's existing recreational Summer Flounder possession limit is four fish.
Pursuant to 29 Del.C. §10119 and 7 Del.C. §903(h), the Department adopted such Emergency Regulation, as referenced above, without prior notice or public hearing, to amend 7 DE Admin. Code 3511: Summer Flounder Size Limits; Possession Limits; Seasons with the issuance of Emergency Secretary's Order (No. 2017-F-0012). Said Order became effective at 12:01 a.m. on April 1, 2017, and was published in the State of Delaware Register of Regulations on that same date. 29 Del.C. §10119 authorizes Emergency Regulations when an agency determines that an imminent peril to the public health, safety or welfare requires the amendment of a regulation with less than the notice required by 29 Del.C. §10115. Additionally, 7 Del.C. §903(h) authorizes the Department to adopt Emergency Regulations when such regulations are necessary to deal with an actual or imminent public health threat or danger to a fishing resource or habitat involving finfish. It should be noted that the aforementioned Emergency Secretary's Order was effective for ninety (90) days from its date of issuance on April 1, 2017.
While concurrently adopting the above-referenced Emergency Regulation, DNREC began its internal regulatory development process to formally amend 7 DE Admin. Code 3511. Thus, the Department's Division of Fish and Wildlife commenced said process with Start Action Notice ("SAN") #2017-05, signed by me on April 17, 2017. The Department subsequently published its initial proposed regulation Amendments in the June 1, 2017 Delaware Register of Regulations, and scheduled its public hearing to be held on June 29, 2017.
Since it would not be possible to complete DNREC's internal regulatory development process prior to the expiration of the initial Emergency Regulation Order referenced above, on June 2, 2017, Emergency Secretary's Order No. 2017-F-0016 was issued, which, pursuant to 7 Del.C. §903(h), provides for a one-time renewal of an Emergency Regulation when such regulation is necessary to deal with an actual or imminent public health threat or danger to a fishing resource or habitat involving finfish. Said Order (which formally extended the aforementioned Emergency Regulation for an additional ninety [90] days) became effective at 12:01 a.m. on June 30, 2017, and was published in the State of Delaware Register of Regulations on July 1, 2017.
As noted above, the Department held a public hearing regarding this proposed promulgation on June 29, 2017. Consistent with 29 Del.C. §10118(a), the public hearing record remained open for public comment through July 14, 2017. Members of the public attended the June 29, 2017 public hearing; however, no opposition to this proposed promulgation was received by the Department at that time, nor at any subsequent time prior to the hearing record closing with regard to public comment on July 14, 2017. All proper notification and noticing requirements concerning this matter were met by the Department. Proper notice of the hearing was provided as required by law.
Based on the record developed by the Department's experts and established by the Hearing Officer's Report, I find that the proposed regulatory Amendments to 7 DE Admin. Code 3511, Summer Flounder Size Limits; Possession Limits; Seasons, are well-supported. Therefore, the recommendations of the Hearing Officer are hereby adopted, and I direct that the proposed regulatory Amendments be promulgated as final.
1. The Department has the statutory basis and legal authority to act with regard to the proposed amendments to 7 DE Admin. Code 3511, Summer Flounder Size Limits; Possession Limits; Seasons, pursuant to 7 Del.C. Ch. 60, and 7 Del.C. §§901(c & d) and 903(e)(2);
2. The Department has jurisdiction under its statutory authority, pursuant to 7 Del.C. Ch. 60, and 7 Del.C. §§901(c & d) and 903(e)(2), to issue an Order adopting these proposed regulatory amendments as final;
3. The Department provided adequate public notice of the proposed regulatory amendments to 7 DE Admin. Code 3511, Summer Flounder Size Limits; Possession Limits; Seasons, and all proceedings associated with the same, in a manner required by the law and regulations, provided the public with an adequate opportunity to comment on the proposed regulatory amendments, including at the time of the public hearing held on June 29, 2017, and held the record open through close of business on July 14, 2017, consistent with 29 Del.C. §10118(a), in order to consider public comment on the same before making any final decision;
4. Promulgation of the proposed regulatory amendments to 7 DE Admin. Code 3511, Summer Flounder Size Limits; Possession Limits; Seasons, will enable the Department to comply with the ASMFC's approved Addendum XXVIII to the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan, thus maintaining regional management for the 2017 recreational Summer Flounder fishery, and to protect the Summer Flounder resource from overfishing;
6. The Department has reviewed these proposed 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 after January 1, 2016), and has selected Exemption "B" regarding same, as this proposed regulation is not substantially likely to impose additional costs or burdens upon individuals and/or small businesses;
7. The Department's proposed regulatory Amendments, as published in the June 1, 2017 Delaware Register of Regulations, and as fully vetted at the public hearing of June 29, 2017 as noted above, are adequately supported, are not arbitrary or capricious, and are consistent with the applicable laws and regulations. Consequently, they are approved as final regulatory Amendments, which shall go into effect ten days after their publication in the next available issue of the Delaware Register of Regulations; and
8. The Department shall submit this Order approving as final the proposed amendments to 7 DE Admin. Code 3511, Summer Flounder Size Limits; Possession Limits; Seasons 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.
(Penalty Section 7 Del.C. §936(b)(2))
3.0 It shall be unlawful for any person, to have in possession any part of a summer flounder that measures less than sixteen (16) 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.
Last Updated: December 31 1969 19:00:00.
site map   |   about this site   |    contact us   |    translate   |    delaware.gov