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Delaware General AssemblyDelaware RegulationsMonthly Register of RegulationsApril 2016

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7 DE Admin. Code 3900
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, 6010, 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 revised regulation Amendments to 7 DE Admin. Code §3900, as follows, to wit: Section 4.0, Seasons; and Section 23.0, Non-native/Invasive Wildlife ("Amendments"). The Department's Division of Fish and Wildlife ("Division") commenced the regulatory development process with Start Action Notice 2015-07 dated August 12, 2015. The Department published its initial proposed regulation Amendments in the September 1, 2015 Delaware Register of Regulations. The Department then held a public hearing on September 22, 2015. Consistent with 29 Del.C. §10118(a), the public hearing record remained open for public comment initially through October 7, 2015.
As a result of its exhaustive review of the public comment received in this matter, the Division determined that a revision of its previously proposed harvest reporting requirement was necessary, to wit: to allow reporting gray fox harvest to occur within seven (7) calendar days of harvest (i.e., reporting within a week). This revision would, according to the Department's TRM of October 30, 2015, provide ample opportunity for individuals to report their harvests without undue burden, while still allowing the Division to collect harvest data on this species in a timely fashion. Additionally, this revision to the aforementioned proposed Amendments would not create two different reporting mechanisms for different types of gray fox harvest.
Due to the fact that the above revision constituted a substantive post-hearing change to the initially proposed promulgation which was vetted to the public at the time of the public hearing of September 22, 2015, the revised proposed regulatory Amendments were re-published for public review in the Delaware Register of Regulations on January 1, 2016. The hearing record was re-opened at that time in order to receive additional public comment, and comment was once again received by the Department from January 1, 2016 through February 1, 2016. After the hearing record closed again for public comment on February 1, 2016, the Division of Fish and Wildlife once more performed a thorough review of all public input received to date in this matter, and, accordingly, the Department's Division of Fish and Wildlife provided this Hearing Officer with a supplemental TRM dated March 10, 2016. This supplemental TRM not only re-affirmed all information previously set forth in the initial TRM dated October 30, 2015, but also provided a brief summary of the second round of comments received by the Department in this matter.
Pursuant to the supplemental TRM noted above, the position of the Division of Fish and Wildlife remains that the reporting of gray foxes within seven (7) calendar days of harvest (i.e., reporting within a week) provides ample opportunity for individuals to report their harvests, and would not be an undue burden on individuals, while still providing timely reporting information for the Division that is necessary to meet the intent of 7 Del.C. §796, Limitations on Harvesting Gray Fox. Furthermore, the aforementioned proposed reporting timeframe would allow the agency to collect detailed harvest information that may be otherwise forgotten by the hunter or trapper if several weeks or months have passed since the harvest, or, if an individual harvested multiple gray foxes throughout the allowable timeframe. Thus, no additional changes to the Department's revised proposed Amendments to 7 DE Admin. Code §3900: Section 4.0, Seasons, and Section 23.0, Non-native/Invasive Wildlife, as published in the January 1, 2016 Delaware Register of Regulations, are recommended by the Division at this time.
Based on the record developed by the Department's experts and established by the Hearing Officer's Report, I find that the proposed revised regulatory Amendments to 7 DE Admin. Code §3900, as follows, to wit: Section 4.0, Seasons; and Section 23.0, Non-native/Invasive Wildlife, are well-supported. Therefore, the recommendations of the Hearing Officer are hereby adopted, and I direct that the proposed revised regulatory Amendments be promulgated as final.
I find that the Department's experts in the Division of Fish and Wildlife fully developed the record to support adoption of these revised regulatory Amendments. The adoption of these revised regulatory Amendments will allow Delaware to establish reporting requirements for gray fox taken, killed or captured (i.e., harvested), and to clarify and standardize the timeframe and methodology for reporting coyote and nutria harvests;
1. The Department has the statutory basis and legal authority to act with regard to the proposed revised Amendments to 7 DE Admin. Code §3900, Section 4.0, Seasons; and Section 23.0, Non-native/Invasive Wildlife, pursuant to 7 Del.C. §§788, 796, and 801;
2. The Department has jurisdiction under its statutory authority, pursuant to 7 Del.C. Ch. 60, to issue an Order adopting these proposed revised regulatory Amendments as final;
4. Due to substantive changes made to the proposed regulatory language, the Department caused the revised proposed regulatory amendments to be re-published in the State of Delaware Register of Regulations on January 1, 2016, provided the public with an additional 30 days to comment on the same, and held the record open through close of business on February 1, 2016, in order to consider all public comment on these proposed revised regulatory amendments before making any final decision;
5. The Department's Hearing Officer's Report, including its established record and the recommended proposed revised regulatory Amendments as set forth in its Appendix "B", are hereby adopted to provide additional reasons and findings for this Order;
6. The adoption of these proposed revised regulatory Amendments will allow Delaware to (1) establish reporting requirements for gray fox taken, killed or captured (i.e., harvested); and (2) clarify and standardize the timeframe and methodology for reporting coyote and nutria harvests;
7. The Department has reviewed these proposed revised regulatory Amendments in the light of the Regulatory Flexibility Act, consistent with 29 Del.C. Ch. 104 (version applicable to all proposed regulations initially submitted to the Delaware Register of Regulations on or before December 31, 2015), and believes the same to be lawful, feasible and desirable, and that the recommendations as proposed should be applicable to all Delaware citizens equally;
8. The Department's proposed revised regulatory Amendments, as re-published in the January 1, 2016 Delaware Register of Regulations, are adequately supported, are not arbitrary or capricious, and are consistent with the applicable laws and regulations. Consequently, they are approved as final revised regulatory amendments, which shall go into effect ten days after their publication in the next available issue of the Delaware Register of Regulations; and
9. The Department shall submit this Order approving as final the proposed revised Amendments to 7 DE Admin. Code §3900, Section 4.0, Seasons; and Section 23.0, Non-native/Invasive Wildlife, 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.
Administered by the Division shall mean owned, leased or licensed by the Division.
Antlered Deer shall mean any deer with one or more antlers three inches long or longer, measured from the base of the antler where it joins the skull to the tip of the antler following any curve of the antler.
Antlerless Deer shall mean any deer that has no antlers or antlers less than three inches in length.
Bait shall mean any nontoxic food material, compound or mixture of ingredients which wildlife is able to consume.
Baited Field shall include any farm field, woodland, marsh, water body or other tract of land where minerals, grain, fruit, crop or other nontoxic compounds have been placed to attract wildlife to be hunted.
Black Powder shall mean a manufacturer’s approved muzzleloading propellant.
Cable Restraintformerly referred to as “snare”, shall be considered a trapping device made of stranded steel cable with a minimum diameter of 5/64 inches. Cable restraints must be equipped with a relaxing-type lock. The cable may not exceed 7 feet in length from the anchor point to the relaxing lock and must be equipped with at least one swivel device, which allows for 360° rotation, between the loop and the anchor. The cable restraint must have stops affixed to the cable to ensure that the cable that makes up the loop may not have a circumference greater than 38 inches when fully open, or a circumference less than 6 ¼ inches when fully closed. Cable restraints with a maximum loop circumference of 12 ½ inches do not require cable stops. Cable restraints must be maintained in good condition so that all components operate properly.
Deer” shall mean white-tailed deer (Odocoileus virginianus) and/or Sika deer (Cervus nippon).
Director shall mean the Director or Acting Director of the Division.
Division shall mean the Division of Fish and Wildlife of the Department.
Established Blind shall mean a structure or pit constructed for the purpose of hunting migratory waterfowl by a landowner on his or her property or by another person with the permission of the landowner or the landowner’s duly authorized agent.
Established Road shall mean a road maintained for vehicular use by the Division and designated for such use by the Division on current wildlife area maps.
Foothold Trap” formerly referred to as “leghold trap”, shall refer to a type of trap with a mechanism that is designed to catch and hold a mammal by one of its feet or legs.
Jaw Spread” shall mean the distance between the inside of both jaws, when measured across the trap jaws on a line perpendicular to a line drawn through the jaw pivot points when the trap is in the set position.
Liberated Game shall mean cottontail rabbits and game birds, including bobwhite quail, mallard duck, chukar and pheasant released pursuant to § 568 of Title 7.
Loaded Muzzle-Loading Rifle shall mean the powder and ball, bullet or shot is loaded in the bore. A muzzle-loading rifle shall not be considered loaded if the cap, primer, or priming powder (in a flintlock) is removed and:
Lure shall mean any mixture of ingredients, element or compound that attract wildlife, but the wildlife is unlikely to consume.
Longbow shall mean a straight limb, reflex, recurve or compound bow. All crossbows or variations thereof and mechanical holding and releasing devices are expressly excluded from the definition.
Nongame Wildlife shall mean any native wildlife, including rare and endangered species, which are not commonly trapped, killed, captured or consumed, either for sport or profit.
Possession shall mean either actual or constructive possession of or any control over the object referred to.
Quality Buck shall mean an antlered deer with an outside antler spread of at least 15 inches. This measurement is taken across the outside of the main beams at their widest point; this measurement’s path must be perpendicular to the center line of the skull and parallel to the top of the skull plate.
Refuge shall mean an area of land, whether in public or private ownership, designated by the Department as a refuge. Land shall only be designated with the permission of the landowner and if such designation is thought to be in the best interest of the conservation of wildlife. Refuges shall normally be closed at all times to all forms of hunting, except as permitted by the Director in writing for wildlife management purposes.
Relaxing Lock” shall mean a device installed on a cable restraint that allows the loop to release constriction pressure on the captured animal when the cable is not taut and the animal stops pulling.
Roadway shall mean any road, lane or street, including associated right-of-ways, maintained by this State or any political subdivision of this State.
Season shall mean that period of time during which a designated species of wildlife may be lawfully hunted or a designated species of fish may be lawfully fished.
Vehicle shall include any means in or by which someone travels or something is carried or conveyed or a means of conveyance or transport, whether or not propelled by its own power.
Waterline” shall refer to beneath the surface of the water or below the mean high tide line in an area ordinarily subject to the rise and fall of the tide.
Wildlife shall mean any member of the animal kingdom, including without limitation, any amphibian, arthropod, bird, mammal or reptile.
(Penalty Section 7 Del.C. §103(d))
2.1.1 Crossbows may be used during all deer seasons;
2.4.1 Notwithstanding statutes § 703 and 788 of Title 7, it shall be unlawful for any person to set a foothold trap at any time in this State, except from December 1 through March 20. The use of toothed or serrated jawed traps is prohibited. All foothold traps set above the waterline must have padded, laminated or offset jaws, with the exception being that coil-spring traps with a jaw spread of 4 inches or less and long-spring traps with a jaw spread of 4 ½ inches or less do not need to be padded, laminated or have offset jaws.
2.8.1 Red foxes may be killed or trapped in accordance with § 788 of Title 7 and the regulations found within this Section with the following: longbow and crossbow, shotgun, rimfire rifle or centerfire rifle up to .25 caliber, or a muzzle-loading rifle, foothold trap, cable restraint, or box trap.
(Penalty Section 7 Del.C. §103(d))
3.5 Mute Swans (Cygnus olor)
3.5.2 It shall be unlawful to possess, buy, sell, barter, trade, or transfer any live mute swan or their eggs to or from another person unless permitted by the Director of the Division of Fish and Wildlife.
(Penalty Section 7 Del.C. §103(d))
4.9.3 Male Pheasant Limit. It shall be unlawful for any person to hunt or possess more than two (2) male pheasants in any one day during the pheasant season, except as permitted by law.
4.11.2 Limit. It shall be unlawful for any person to take more than four (4) rabbits in any one day.
4.13 Red Fox and Gray Fox.
4.13.1 Red Fox Hunting Harvest Season. Red fox may be killed in accordance with the statutes and regulations of the State of Delaware governing the hunting of red fox: from November 1 through the last day of February, excluding Sundays. Notwithstanding the foregoing, red foxes may be killed in accordance with Section 2.8 of WR-2.0 and §788 of Title 7.
4.13.2 Red Fox Trapping Season. Red fox may be trapped with foothold, cable restraint, or cage/box traps from December 1 through March 10.
(Penalty Section 7 Del.C. §103(d))
It shall be unlawful for any person, other than authorized representatives of the Division, to release or possess Meleagris gallopavo (wild turkey) in Delaware without a permit from the Division. The prohibition to possess and/or release Meleagris gallopavo shall include both birds taken from the wild and birds bred in captivity.
(Penalty Section 7 Del.C. §103(d))
(Penalty Section 7 Del.C. §103(d))
7.2 Tagging, Deer Harvest Report Cards, and Registering Harvested Deer.
7.5.5 Crossbow Seasons. Deer may be hunted with crossbows in accordance with statutes and regulations of the State of Delaware governing the hunting of deer: from September 1 (September 2, if September 1 is a Sunday) through the last day of January, provided hunter orange is displayed in accordance with 718 of Title 7 when it also lawful to hunt deer with a gun.
8.1.3 Speed Limit. It shall be unlawful for any person to drive or operate a vehicle in excess of twenty (20) miles per hour when on lands administered by the Division, unless otherwise authorized by the Director.
8.8.1 It shall be unlawful to place caches or letterboxes on Division of Fish and Wildlife property without a permit from the Division. Permits may be obtained by submitting a completed permit application to the appropriate Fish and Wildlife Regional Office. The proposed caching location will be specified in the application. The Regional Fish and Wildlife Manager will review and approve or deny the permit request. A permit will be valid for a maximum of one year from the date of issue at which time the geocache or letterbox must be removed or re-permitted. The permitted time frame will be determined by the area manager and be based on the local wildlife species present and the management activities planned for the area. The area manager will be provided the location of the cache or letterbox and may remove it at his or her discretion, with notice to the permit holder, should circumstances warrant. Online geocache and letterbox descriptions, such as those on geocaching.com or letterboxing.org must include information about access during hunting seasons and provide a link to Delaware Division of Fish and Wildlife Hunting Information.Geocache and letterbox contents must be suitable for all ages. Food, alcohol, tobacco, weapons or other dangerous items, prescription or illegal drugs and adult items are prohibited. From September 1st. through February 15th. of each year and during the spring turkey hunting season, the placement of or searching for geocaches and letterboxes may only occur on Sundays from sunrise to sunset. During the remainder of the year, geocaching and letterbox activities may occur 7 days per week from sunrise to sunset.
(Penalty Section 7 Del.C. §103(d))
(Penalty Section 7 Del.C. §103(d))
(Penalty Section 7 Del.C. §103(d))
(Penalty Section 7 Del.C. §103(d))
(Penalty Section 7 Del.C. §103(d))
(Penalty Section 7 Del.C. §103(d))
14.3.2 In 2012, and each year thereafter until changed, the Division may allow the taking of a total of 12 birds of prey from the wild in Delaware. Upon request, the Director shall propose a revised annual limit on the number of raptors which may be taken from the wild and shall appear before the Council on Wildlife and Freshwater Fish to receive input on such limit before its revision or adoption.
(Penalty Section 7 Del.C. §103(d))
Lizard, Northern Fence (Sceloporus undulatus hyacinthinus)
Racer, Northern Black (Coluber constrictor constrictor)
Skink, Five-lined (Eumeces fasciatus)
Snake, Black Rat (Elaphe obsoleta obsoleta)
Snake, Eastern Garter (Thamnophis sirtalis sirtalis)
Snake, Eastern Hognose (Heterodon platirhinos)
Snake, Eastern Worm (Carphophis amoenus amoenus)
Snake, Northern Water (Nerodia sipedon sipedon)
Snake, Ringneck (Diadophis punctatus)
Terrapin, Diamondback (Malaclemys terrapin)
Turtle, Common Musk (Sternotherus odoratus)
Turtle, Eastern Box (Terrapene carolina carolina)
Turtle, Eastern Mud (Kinosternon subrubrum subrubrum)
Turtle, Painted (Chrysemys picta)
Turtle, Redbelly (Pseudemys rubriventris)
Turtle, Snapping (Chelydra serpentina)
Bullfrog (Rana catesbeiana)
Frog, Green (Rana clamitans melanota)
Frog, New Jersey Chorus (Pseudacris triseriata kalmi)
Frog, Northern Cricket (Acris crepitans crepitans)
Frog, Pickerel (Rana palustris)
Frog, Southern Leopard (Rana utricularia)
Newt, Red-spotted (Notophthalmus viridescens viridescens)
Peeper, Northern Spring (Pseudacris crucifer crucifer)
Salamander, Northern Dusky(Desmognathus fuscus fuscus)
Salamander, Redback (Plethodon cinereus)
Spadefoot, Eastern (Scaphiopus holbrookii holbrookii)
Toad, American (Bufo americanus)
Treefrog, Gray (Hyla versicolor and Hyla chrysoscelis)
(Penalty Section 7 Del.C. §103(d))
16.1.1 Pursuant to §601 of Title 7, the importation, transportation, possession or sale of any endangered species of fish or wildlife, or hides or other parts thereof, or the sale or possession with the intent to sell of any article made in whole or in part from the skin, hide or other parts of endangered species of fish or wildlife is prohibited, except under license or permit from the Division.
Grebe, Pied-billedBR (Podilymbus podiceps)
Harrier, NorthernBR (Circus cyaneus)
Hawk, Broad-wingedBR (Buteo platypterus)
BR Breeding population only
(Penalty Section 7 Del.C. §103(d))
Penalty Section 7 Del.C. §103(d))
(Penalty Section 7 Del.C. §103(d))
(Penalty Section 7 Del.C. §103(d))
21.4.1 All persons possessing a Delaware Guide License are required to complete and submit an annual report to the Division within seven days after the close of the season to include the following information which must be readily available for inspection by enforcement officers: full name of each hunter, address of each hunter in the party, hunting license number for each hunter, date, number and species of each animal harvested, location of hunts and the name and license number of the guide.
(Penalty Section 7 Del.C. §103(d))
(Penalty Section 7 Del.C. §103(d))
23.1.1.5 Reporting Harvest. After harvesting a coyote, a hunter and/or trapper must report the harvest via to the Division of Fish and Wildlife’s by the end of the next business day using its established reporting system(s).
23.2.1 Nutria (Myocastor coypus)
23.2.1.3 Anyone capturing harvesting a nutria must notify the Division of Fish & Wildlife within 24 hours of the capture by the end of the next business day using its established reporting system(s).
Last Updated: December 31 1969 19:00:00.
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