department of natural resources and environmental control
Division of Fish and Wildlife
Secretary’s Order No.: 2010-F-0025
7 DE Admin. Code 3541 Atlantic Sharks
Date of Issuance: August 16, 2010
Effective Date of the Amendment: September 11, 2010
Under the authority vested in the Secretary of the Department of Natural Resources and Environmental Control (“Department” or “DNREC”) the following findings, reasons and conclusions are entered as an Order of the Secretary in the above-referenced rulemaking proceeding.
Background and Procedural History
This Order considers proposed regulations to amend 7 DE Admin. Code 3541, Atlantic Sharks. The Department’s Division of Fish and Wildlife commenced the regulatory development process with Start Action Notice 2010-15. The Department published its initial proposed regulation Amendments in the May 1, 2010 Delaware Register of Regulations, and held a public hearing on June 21, 2010. The public hearing record remained open at that time for public comment through June 30, 2010. It should be noted that no members of the public were in attendance at the hearing held on June 21, 2010, nor was any public comment received by the Department at any time concerning this proposed promulgation.
The Department is proposing to amend Tidal Finfish Regulation 3541 concerning Atlantic Sharks in order to bring Delaware into compliance with the Atlantic States Marine Fisheries Commission’s (“ASMFC”) Interstate Fishery Management Plan (“IFMP”) for Atlantic Coastal Sharks. The IFMP for Atlantic Coastal Sharks specifies which gears that fishermen are authorized to use in state waters on the Atlantic Coast. The gears that are authorized by ASMFC are hook and line, gill net, trawl net, short-line, pound net and weir. Presently, Delaware allows the use of hook and line, troll line, dip net, lift net, push net, cast net, spear or harpoon, haul seine, bag net, hoop net, fyke net, fish pot, and gill net for use in state waters to harvest food-fish, which includes sharks. To meet the requirements of the IFMP, Delaware must restrict the commercial gears that may be used for the harvesting of Atlantic coastal sharks to hook and line, and gill net. Recreational fishermen are restricted to the use of rod and reel and hand line. Fishermen with a federal shark permit who are fishing outside of state waters are not restricted to these gear types and may land sharks using any gear that is in accordance with the rules and regulations established by NOAA Fisheries.
Additionally, the IFMP for Atlantic Coastal Sharks specifies that a federal Commercial Shark Dealer Permit is required to buy and sell any shark caught in state waters. At the present time, the State of Delaware does not require seafood dealers to have this permit to buy and sell shark caught in state waters. Again, these modifications to the existing shark regulations would bring Delaware into full compliance with the IFMP for Atlantic Coastal Sharks.
The Department’s presiding hearing officer, Lisa A. Vest, prepared a Hearing Officer’s Report dated August 6, 2010 (Report). The Report recommends certain findings and the adoption of the proposed Amendments as attached to the Report as Appendix A.
Findings and Discussion
I find that the proposed Amendments are well-supported by the record developed by the Department, and I adopt the Report to the extent it is consistent with this Order. The Department’s experts developed the record and drafted the proposed Amendments.
I find that the Department’s experts in the Division of Fish and Wildlife fully developed the record to support adoption of these Amendments. With the adoption of this Order, Delaware will (1) allow Delaware to remain in compliance with the ASMFC Plan for Coastal Sharks, as well as the latest addendum to the IFMP for Coastal Shark; and (2) prevent total closure of these fisheries in Delaware by order of the Secretary of Commerce due to lack of compliance with federal regulations concerning this species.
In conclusion, the following findings and conclusions are entered:
1.) The Department has jurisdiction under its statutory authority to issue an Order adopting these proposed Amendments as final;
2.) The Department provided adequate public notice of the proposed Amendments, and provided the public with an adequate opportunity to comment on the proposed Amendments, including at the public hearing held on June 21, 2010;
3.) The Department held a public hearing on June 21, 2010 in order to consider public comment before making any final decision;
4.) The Department’s Hearing Officer’s Report, including its recommended record and the recommended Amendments as set forth in Appendix A, are adopted to provide additional reasons and findings for this Order;
5.) The recommended Amendments should be adopted as final regulation Amendments because Delaware will be able to (1) remain in compliance with the aforementioned Fishery Management Plan for this species, as implemented by the ASMFC; (2) prevent total closure of these fisheries in Delaware by order of the Secretary of Commerce due to lack of compliance with federal regulations concerning this species; and, lastly, because (3) the amendments are well supported by documents in the record;
6.) The Department shall submit this Order approving the final regulation 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.
Collin P. O’Mara, Secretary
3541 Atlantic Sharks
(Penalty Section 7 Del.C. §936(b)(2))
“Fillet” shall mean to remove slices of fish flesh, of irregular size and shape, from the carcass by cuts made parallel to the backbone.
“Land or Landing” shall mean to put or cause to go on shore from a vessel.
“Management Unit” shall mean any of the non-sandbar large coastal species, small coastal species, pelagic species and prohibited species of sharks or parts thereof defined in this regulation. Smooth dogfish (Mustelus canus), although they are a species of shark, are not presently part of the management unit as defined above, and are not subject to minimum size or daily harvest restirctions. They are subject to the provisions of Regulation 3541, Sections 3.0 and 4.0.
“Non-Sandbar Large Coastal Species” shall mean any of the following species of sharks or parts thereof:
Great hammerhead, Sphyrna mokarran
Scalloped hammerhead, Sphyrna lewini
Smooth hammerhead, Sphyrna zyqaena
Nurse shark, Ginglymostoma cirratum
Blacktip shark, Carcharhinus limbatus
Bull shark, Carcharhinus leucas
Lemon shark, Neqaprion brevirostris
Silky shark, Carcharhinus falciformis
Spinner shark, Carcharhinus brevipinna
Tiger shark, Galeocerdo cuvieri
“Pelagic Species” shall mean any of the following species of sharks or parts thereof:
Porbeagle shark, Lamna nasus
Shortfin mako, Isurus oxyrinchus
Blue shark, Prionace qlauca
Oceanic whitetip shark, Carcharhinus longimanus
Thresher shark, Alopias vulpinus
“Prohibited Species” shall mean any of the following species of sharks or parts thereof:
Basking shark, Cetorhinidae maximus
White shark, Carcharodon carcharias
Bigeye sand tiger, Odontaspis noronhai
Sand tiger, Odontaspis taurus
Whale shark, Rhincodon typus
Bignose shark, Carcharhinus altimus
Caribbean reef shark, Carcharhinus perezi
Dusky shark, Carcharhinus obscurus
Galapagos shark, Carcharhinus galapaqensis
Narrowtooth shark, Carcharhinus brachyurus
Night shark, Carcharhinus siqnatus
Atlantic angel shark, Squatina dumerili
Caribbean sharpnose shark, Rhizoprionodon porosus
Smalltail shark, Carcharhinus porosus
Bigeye sixgill shark, Hexanchus vitulus
Sevengill shark, Heptranchias perlo
Sixgill shark, Hexanchus griseus
Longfin mako, Isurus paucus
Bigeye thresher, Alopias superciliosus
"Sandbar shark" shall mean Carcharhinus plumbeus
"Shore fishing" shall mean any fishing that does not take place on board a vessel. The terms "shore fishing" and "shore angler" are synonymous.
“Small Coastal Species” shall mean any of the following species of sharks or parts thereof:
Bonnethead, Sphyrna tiburo
Atlantic sharpnose shark, Rhizoprionodon terraenovae
Blacknose shark, Carcharhinus acronotus
Finetooth shark, Carcharhinus isodon
7.1 It shall be unlawful for any shark caught in state waters to be bought and sold without a federal Commercial Shark Dealer Permit.