DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL

Division of Fish and Wildlife

PROPOSED

REGISTER NOTICE

SAN # 2023-01

DOCKET # 2023-R-F-0001

3200 Horseshoe Crabs

1. TITLE OF THE REGULATIONS:

Amend 7 DE Admin. Code 3200 Horseshoe Crabs.

2. BRIEF SYNOPSIS OF THE SUBJECT, SUBSTANCE AND ISSUES:

Delaware must update its commercial horseshoe crab quota setting process to comply with the Atlantic States Marine Fisheries Commission's Addendum VIII to the Horseshoe Crab Fishery Management Plan (FMP), which was approved in November 2022. This proposed amendment to the regulation will keep Delaware's horseshoe crab harvest quota in compliance with the FMP and assist in preventing overharvest. Because the regulation required amending for the quota revision, this proposed amendment also revises other parts of the regulation that were outdated or unclear. The proposed amendment will address daily possession limits that are currently based on volume rather than number, which complicates enforcement of the possession limit; the dredge lottery process, which currently doesn't reflect the operation of this fishery; and rewording some of the current text to improve clarity.

This proposed amendment will update the annual quota setting process to comply with the Atlantic States Marine Fisheries Commission Addendum VIII to the Horseshoe Crab FMP, revise daily possession limits, clarify the definition of the legal harvest methods, define the circumstances that will require a horseshoe crab dredge lottery, and modify the dredge lottery process.

3. POSSIBLE TERMS OF THE AGENCY ACTION:

N/A

4. STATUTORY BASIS OR LEGAL AUTHORITY TO ACT:

7 Del.C. §2701

5. OTHER REGULATIONS THAT MAY BE AFFECTED BY THE PROPOSAL:

N/A

6. NOTICE OF PUBLIC COMMENT:

The hearing record on the proposed changes to 3200 Horseshoe Crabs opens March 1, 2023 (Hearing Docket No. 2023-R-F-0001). The virtual public hearing will be held on Thursday, March 23, 2023, beginning at 6:00 p.m. The web link to the virtual hearing can be accessed through the DNREC Public Hearings site at https://dnrec.alpha.delaware.gov/public-hearings/. If prompted, use Meeting ID 954 0188 4469 and Passcode 639214. To access the audio-only portion of the virtual hearing, dial 1-646-931-3860 and enter the Meeting ID and Passcode noted above. Closed-captioning is available by request if made at least 7 days before the event.

Those wishing to offer verbal comments during DNREC virtual public hearings must pre-register no later than noon on the date of the virtual hearing. The designated page for this Pre-Registration process can be found here: https://dnrec.alpha.delaware.gov/public-hearings/comments/registration/.

The proposed amendments may be inspected online starting March 1, 2023 at https://regulations.delaware.gov/services/current_issue.shtml, or in-person, by appointment only, by contacting John Clark by phone at 302-739-9914 or by email at John.Clark@delaware.gov.

Public comments will be received until close of business Friday, April 7, 2023. Comments will be accepted in written form via email to DNRECHearingComments@delaware.gov, or by using the online form at https://de.gov/dnreccomments, or by U.S. mail to the following address:

Theresa Newman, Hearing Officer

DNREC - Office of the Secretary

89 Kings Highway, Dover, DE 19901

7. PREPARED BY:

John H. Clark

Email: John.Clark@delaware.gov

Phone: (302)739-9914

3200 Horseshoe Crabs

(Penalty Section 7 Del.C. §2705(b))

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

1.1 "Asian Horseshoe Crabs" shall mean means any of the following species Carcinoscorpius rotundicauda, Tachypleus gigas, and Tachypleus tridentatus.

1.2 “Bait Saving Device” shall mean means 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.

1.3 “Collect” shall mean means to take live horseshoe crabs by any means other than by dredge hand without the aid of manual or mechanical equipment or devices during the times and at the places that horseshoe crab collection is allowed as described in Section 3.0.

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

1.5 “Dredge” shall mean to use means any device used to gather, scrape, scoop, fish for or otherwise take bottom dwelling horseshoe crabs or the act of using a dredge.

1.6 “Personal, Non-Commercial Use” shall mean means 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.

"Take and Reduce to Possession" means the removal of any horseshoe crab with the intent to keep or harvest the horseshoe crab.

(Penalty Section 7 Del.C. §2705(b))

1.0 2.1 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 2.2 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.

(Penalty Section 7 Del.C. §2705(b))

1.0 3.1 It shall be unlawful for any person to dredge or attempt to collect take and reduce to possession 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 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 take and reduce to possession by means of a dredge female horseshoe crabs.

2.0 3.2 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 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 July 31.

3.0 3.3 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 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 July 31, for persons with valid horseshoe crab collecting permits and eel licensees and their alternates to collect male horseshoe crab adults on Mondays through Fridays from such private lands.

4.0 3.4 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 the person has on his or her person is in physical possession of written permission, signed by the owner of said the privately owned land with the owner's address and phone number, indicating the individual person to whom permission to collect horseshoe crabs is granted.

(Penalty Section 7 Del.C. §2705(b))

1.0 4.1 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 4.2 It shall be unlawful for any person under the age of sixteen (16) 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.

(Penalty Section 7 Del.C. §2705(b))

1.0 5.1 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) 3 persons under the age of 16 who are not required to have valid horseshoe crab commercial collecting permits.

2.0 5.2 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 the horseshoe crab collecting permittee while within 300 feet of the shoreline of the water from which said the horseshoe crabs are collected or the point on shore where said the horseshoe crabs are landed from a vessel.

(Penalty Section 7 Del.C. §2705(b))

1.0 6.1 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 the receipt-holder'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 6.2 Any person who has been issued a valid commercial eel fishing license by the Department or said the person's alternate while in the presence of the licensee, is exempt from the prohibition on the possession of horseshoe crabs, provided said the commercial eel fishing licensee has submitted all required reports of his/her the licensee and his/her the licensee’s alternate's previous week's harvest of horseshoe crabs with the Department in accordance with Regulation 3210 Section 10.0 of this regulation. Any person who has been issued a commercial eel fishing license and said the 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.

3.0 6.3 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 6.4 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 or shellfish regulations pertaining to horseshoe crabs.

5.0 6.5 It shall be unlawful for any person with a valid commercial eel fishing license to commingle any horseshoe crabs collected either by said the commercial eel fishing licensee or by his or her the licensee's 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 6.6 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 the 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 6.7 t It shall be unlawful for any person to possess more than 300 cubic feet of 3,000 horseshoe crabs except in a stationary cold storage or freezer facility.

8.0 6.8 It shall be unlawful for any person to collect or attempt to collect more than 300 cubic feet of 3,000 horseshoe crabs during any 24 hour period beginning at 12:01 AM and continuing through midnight next ensuing.

(Penalty Section 7 Del.C. §2705(b))

1.0 7.1 It shall be unlawful for any person to dredge horseshoe crabs in the area in Delaware Bay designated as leased shellfish 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 7.2 It shall be unlawful for any person, who operates a vessel and has on board said the vessel a dredge of any kind, to have on board or to land more than 1500 3,000 horseshoe crabs during any 24 hour period beginning at 12:01 a.m. and continuing through midnight next ensuing.

3.0 7.3 It shall be unlawful for any person, who operates a vessel and has on board said the vessel a dredge of any kind, to have or possess on board said the vessel any horseshoe crabs at any time during the period beginning 12:01 a.m. on January 1 and continuing through midnight, June 30, next ensuing.

4.0 7.4 It shall be unlawful for any person to land horseshoe crabs taken from the Exclusive Economic Zone unless said the person has a valid horseshoe crab dredge permit.

(Penalty Section 7 Del.C. §2705(b))

1.0 8.1 The If any of Delaware's annual harvest limit, as defined in Section 14.0 of this regulation, remains unharvested after the collecting season closure date, as defined in Section 3.0 of this regulation, 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 dredge 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 the deadline set by the Department. 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 on a date and time set by the Department.

2.0 8.2 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.

(Penalty Section 7 Del.C. §2705(b))

1.0 9.1 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 9.2 Any land owner(s) owner 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) owner.

3.0 9.3 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 subsection 3.2 of this regulation.

(Penalty Section 7 Del.C. §2705(b))

1.0 10.1 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 the harvest of horseshoe crabs to the Department on a daily basis. Said daily Daily reports shall not be required to be submitted to the Department during any month said the person indicates previously in writing to the Department that he/she the person will not be harvesting horseshoe crabs. Any person required to submit a daily report on his/her the harvest of horseshoe crabs to the Department shall phone in said the report within 24 hours of said harvesting. For purposes of this section Section 10.0, a week shall commence at 12:01AM on Monday and conclude at midnight on Sunday, next ensuing. Said The report shall include but not be limited to said the person's unique identification number assigned by the Department, the dates and location horseshoe crabs were harvested, the number of horseshoe crabs harvested and the method of harvest of horseshoe crabs. Said The 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 10.2 Any person who fails to submit a daily report on his/her the harvest of horseshoe crabs to the Department on time shall have his/her the permit to dredge or his/her the permit or authority to collect horseshoe crabs suspended until all delinquent reports on harvested horseshoe crabs are received by the Department.

3.0 10.3 In addition to the requirement to phone in 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 the 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.

(Penalty Section 7 Del.C. §2705(b))

1.0 11.1 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.

11.2 Any person holding a horseshoe crab commercial collecting permit in 1998 may apply for renewal of their horseshoe crab commercial collecting permit by December 31 each year.

11.3 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 December 31 in any given calendar year, they forfeit their eligibility to obtain a horseshoe crab commercial collecting permit in subsequent years.

(Penalty Section 7 Del.C. §2705(b))

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 trade, barter or to attempt to sell, trade and/or trade, or barter any horseshoe crab.

(Penalty Section 7 Del.C. §2705(b))

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

(Penalty Section 7 Del.C. §2705(b))

1.0 14.1 The annual harvest limits for horseshoe crabs taken or landed in the State shall be determined in accordance with the annual sex-specific allocations identified in specified by the Atlantic States Marine Fisheries Commission's Horseshoe Crab Management Board in compliance with Addendum VII VIII to the Atlantic States Marine Fisheries Commission's Interstate Fishery Management Plan for Horseshoe Crab.

2.0 14.2 When the Department has determined that 95% of an annual sex-specific horseshoe crab quota allocation has been landed, the Department shall establish, based on recent fishery performance and landings, a date and time to order that component of the horseshoe crab fishery closed. Horseshoe crabs of the component specified may not be taken during the remainder of the calendar year once closed by the Department.

3.0 14.3 Any overage in the State's annual horseshoe crab quota will be subtracted from the following year's horseshoe crab quota allocation.

Repealed

(Penalty Section 7 Del.C. §2705(b))

1.0 It is unlawful to possess or use as bait Asian horseshoe crabs or parts thereof without written authorization from the Director of the Division of Fish and Wildlife.