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Delaware General AssemblyDelaware RegulationsMonthly Register of RegulationsAugust 2013

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7 DE Admin. Code 3900
Delaware Regulations Governing Wildlife: Sections 2.0 (Method of Take);
This Order considers proposed regulations to amend 7 DE Admin. Code 3900, Delaware Regulations Governing Wildlife. The Department’s Division of Fish and Wildlife commenced the regulatory development process with Start Action Notice 2012-19. The Department published its initial proposed regulation Amendments in the January 1, 2013 Delaware Register of Regulations, and held a public hearing on February 6, 2013.
The Department is proposing revisions to 7 DE Admin. Code 3900, Delaware Regulations Governing Wildlife, to wit: Section 2.0 (Method of Take); 5.0 (Wild Turkeys); 10.0 (Nuisance Game Animals); 14.0 (Falconry); and 16.0 (Endangered Species) to enable the Department to (1) allow trappers the option of marking their turtle traps with a tag bearing the tapper’s name and address, or the current year’s trapping license, under Section 3902; (2) establish the minimum age at 13 for taking the mandatory turkey hunting education class, and to clarify what constitutes written authorization from the Division of Fish & Wildlife to hunt turkeys, under Section 3905; (3) require a training and certification program for those persons/businesses that provide nuisance wildlife control services to the public under Section 3910, and to change the name of Section 3910 from “Nuisance Game Animals” to “Nuisance Wildlife”; (4) comply with the changes in federal regulation with regard to Falconry, under Section 3914; and (5) better define the phrase “seriously threatened with extinction”, and provide the Division of Fish & Wildlife with the authority to remove species from the State of Delaware’s endangered species list, under Section 3916.
The Department has the statutory basis and legal authority to act with regard to the proposed amendments to 7 DE Admin. Code 3900, Delaware Regulations Governing Wildlife, pursuant to 7 Del.C. §§102-103, 7 Del.C. §903(e)(2)(a), and 7 Del.C., Chapter 60. Comment was received by the Department regarding this proposed promulgation, and the same was thoroughly addressed and responded to by the Division of Fish and Wildlife in its final revised Technical Response Memorandum dated July 3, 2013. Proper notice of the hearing was provided as required by law.
I find that the revised 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 revised Amendments. Throughout the regulatory development process regarding this promulgation, the Department received public comment, as noted in the Report, and the same were fully addressed by Department staff in a thorough and balanced manner, accurately reflecting the information as contained in the public hearing record which was developed in this matter.
I find that the Department’s experts in the Division of Fish and Wildlife fully developed the record to support adoption of these revised Amendments. With the adoption of this Order, Delaware will (1) allow trappers the option of marking their turtle traps with a tag bearing the tapper’s name and address, or the current year’s trapping license, under Section 3902; (2) establish the minimum age at 13 for taking the mandatory turkey hunting education class, and to clarify what constitutes written authorization from the Division of Fish and Wildlife to hunt turkeys, under Section 3905; (3) require a training and certification program for those persons/businesses that provide nuisance wildlife control services to the public under Section 3910, and to change the name of Section 3910 from “Nuisance Game Animals” to “Nuisance Wildlife”; (4) comply with the changes in federal regulation with regard to Falconry, under Section 3914; (5) better define the phrase “seriously threatened with extinction”, and provide the Division of Fish and Wildlife with the authority to remove species from the State of Delaware’s endangered species list, under Section 3916; and (6) provide additional clarifying language to aid in the public’s overall understanding of the existing regulatory language.
4.) The Department’s Hearing Officer’s Report, including its recommended record and the recommended revised Amendments as set forth in Appendix A, are adopted to provide additional reasons and findings for this Order;
5.) The recommended revised Amendments should be adopted as final regulation Amendments because Delaware will be able to (1) allow trappers the option of marking their turtle traps with a tag bearing the tapper’s name and address, or the current year’s trapping license, under Section 3902; (2) establish the minimum age at 13 for taking the mandatory turkey hunting education class, and to clarify what constitutes written authorization from the Division of Fish and Wildlife to hunt turkeys, under Section 3905; (3) require a training and certification program for those persons/businesses that provide nuisance wildlife control services to the public under Section 3910, and to change the name of Section 3910 from “Nuisance Game Animals” to “Nuisance Wildlife”; (4) comply with the changes in federal regulation with regard to Falconry, under Section 3914; (5) better define the phrase “seriously threatened with extinction”, and provide the Division of Fish and Wildlife with the authority to remove species from the State of Delaware’s endangered species list, under Section 3916; and lastly, because (6) 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.
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.
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.
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.
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.
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;
2.2 Archery and Crossbow.
2.9.2 Each trap shall be marked with a metallic tag bearing the trapper’s name and address or current year’s trapping license number. The tag shall be attached to the trap in a manner that allows it to remain visible, at all times.
(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.
3.6.1 Waterfowl may be hunted on a special days established annually by the Division for disabled (non-ambulatory) hunters using a wheelchair for mobility and hunters 10 years of age or older but less than 16 years of age (10-15 years inclusive). Hunters 13-15 years of age must have completed an approved course in hunter training and possess a Delaware Resident or Non-Resident Junior Hunting License. Young hunters must be accompanied by a licensed non-hunting adult who is 21 years of age or older. Young hunters must be of sufficient size, physical strength and emotional maturity to safely handle a shotgun.
(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.
(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.
5.2.1 It shall be unlawful for any person 13 years of age or older to hunt wild turkeys in Delaware before passing a Division approved course of instruction in turkey hunting. In addition to official Delaware Division of Fish and Wildlife sponsored courses, official NRA Wild Turkey Hunting Clinics, official NWF Turkey Hunting Courses and out-of-state Turkey Hunting Courses (minimum of 4 hours) officially sponsored and sanctioned by other state or provincial Hunter Education Programs shall be recognized as being Division approved courses of instruction in turkey hunting. This includes Division approved internet courses.
5.4.1 The Division may establish a season for hunting bearded wild turkeys. The Division will determine the season length and bag limit. Except for persons 12 years of age or younger, it shall be unlawful for any person to hunt wild turkey except as permitted by the written authorization of the Division. without the written authorization of the Division in their possession. Proof of course completion referenced in 5.2 of this section shall serve as written authorization for private land hunters. Public land hunters must have both an annual permit from the Division as well as proof of course completion in their possession while turkey hunting.
(Penalty Section 7 Del.C. §103(d))
(Penalty Section 7 Del.C. §103(d))
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.
7.6.1 Importation. It shall be unlawful to import or possess any carcass or part of a carcass of any member of the family Cervidae (deer) originating from a state or Canadian province, country or any portion of the aforementioned jurisdictions thereof as determined by the Division, in which Chronic Wasting Disease has been found in free-ranging or captive Cervids. Notwithstanding the foregoing, the following parts may be imported into the state:
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))
10.0 Nuisance Game Animals Wildlife
(Penalty Section 7 Del.C. §103(d))
10.2 Pest Commercial Nuisance Wildlife Control Operators. The Division may designate licensed pest certify and permit commercial nuisance wildlife control operators as cooperators to control nuisance wild animals resolve human/wildlife conflicts. Said cooperators must agree to follow guidelines for control as determined by the Division and notify potential clients of their fees.
(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))
It shall be unlawful for any person to practice the sport of falconry, except in such a manner as prescribed by regulations promulgated under provisions of 50 CFR (Code of Federal Regulations) §§ 21.28, 21.29 and 21.30. Such The Federal regulations are hereby made part of the regulations of the Department as prescribed in § 725 of Title 7. Notwithstanding the foregoing, the federal regulations governing falconry shall be superseded by more stringent restrictions prescribed by law or regulation of the Department.
14.2.1 A Residents resident wishing to practice falconry shall apply to the Division for a falconry permit. To be issued a falconry permit, the person shall successfully pass a written test and have their facilities and equipment inspected by Division staff or an appointed Master Falconer to ensure that they meet the standards as prescribed by the federal regulations.
14.2.2 A Nonresidents nonresident falconer must purchase a nonresident hunting license and be properly permitted to practice falconry in the state in which he or she resides. who possesses a valid falconry permit issued by any other state listed in 50CFR21.29 may possess, import, export, or transport migratory birds of the orders Accipitriformes, Falconiformes, and/or Strigiformes held under the authority of such a permit in Delaware.
14.2.3 Falconry permits shall be effective, unless revoked, for a period of up to three years and coincide with the license period for the hunting license. The Division shall participate in any joint state/federal permit system available. No additional falconry permit shall be required for a non-resident falconry permit holder to practice falconry in Delaware.
14.2.4 The issuance of Apprentice Class permits shall be limited to persons 15 years of age or older. Falconers who take up residence in Delaware shall have 60 days to obtain a Delaware falconry permit. During this interim period, a current falconry permit issued by the previous state of residence shall be recognized for the purposes of legally practicing falconry in Delaware.
14.3.1 It shall be unlawful for any person to take any birds of prey from the wild without a permit from the Division. [The Director shall establish a an annual limit on the number of raptors which may be taken each year from the wild and shall appear before the Council on Game Wildlife and Freshwater Fish to receive input on such limit before its adoption or revision. Each capture permit will be limited to the taking of one bird of prey.]
14.3.2 In [2000 2012], and each year thereafter until changed, the Division may issue up to twelve (12) permits for the taking of twelve (12) birds of prey from the wild in Delaware, except that no more than three (3) permits shall be issued for the taking of three (3) nestling red-tailed hawks or three (3) nestling great horned owls, or any combination thereof. Nonresident falconers may apply for available permits to take nestling raptors, provided the state in which the nonresident resides allows Delaware residents the reciprocal opportunity to remove nestling raptors. allow the taking of a total of 12 birds of prey from the wild in Delaware. [Each capture permit will be limited to the taking of one bird of prey. 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.]
14.3.3 The taking of nestling (eyas) birds shall be limited to red-tailed hawks and great horned owls on Thursdays, Fridays and Saturdays from March 18 through June 30. Falconers may possess wild caught raptors identified as state threatened or endangered under Regulation 16.0 and §602 of Title 7, provided they were acquired in Delaware prior to the species being listed, or if they were acquired from a state in which their take was legal.
14.3.5 Apprentices may only possess wild caught red-tailed hawks[, and] red shouldered hawks[, and wild captured American kestrels legally obtained from another state]. Apprentices may not possess captive reared birds or hybrids.
14.3.57 It shall be unlawful to remove raptors from private property without the express consent of the landowner. It shall also be unlawful for any person to remove raptors from State parks, State forests, State wildlife areas, State owned wetland mitigation sites, national wildlife refuges, nature preserves, natural areas, and county or local parks without the advance written approval of the agency administering the property. The permit to remove a raptor from the wild must be in possession of the falconer when attempting to capture a raptor. Apprentice falconers must be under the direct supervision of their the Apprentice’s sponsor or a Master or General class falconer when removing raptors from the wild.
(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 intent to sell [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.
16.2 Designation and Removal from Designation of Species by Division.
16.2.1 Pursuant to §601 of Title 7, the Division may designate species of fish and wildlife that are seriously threatened with extinction as endangered species. The Division may also remove the designation of endangered from species of fish and wildlife that are no longer seriously threatened with extinction, The Division will review the state list of endangered species and add including species as suggested by the public that have with sufficient documentation for listing.
16.2.2.1 Appears on the federal list of endangered, threatened, or candidate species; or
16.2.2.2 Ranked as “globally rare” (G1, G2, or G3, T1, T2, or T3), which means 100 or fewer populations worldwide; or
16.2.2.3 Is rare or declining within the mid-Atlantic coastal plain State and rare or declining in the region; or.
Grebe, Pied-billedBR (Podilymbus podiceps)
Harrier, NorthernBR (Circus cyaneus)
Hawk, Broad-wingedBR (Buteo platypterus)
Hawk, Cooper'sBR (Accipiter cooperii)
Parula, NorthernBR (Parula americana)
Warbler, Cerulean (Dendroica Setophaga cerulea)
Warbler, Hooded BR (Wilsonia Setophaga citrina)
BR Breeding population only
Firefly, Bethany Beach (Photuris bethaniensis)
Wing, Chermock's Mulberry (Poanes massasoit chermocki)
Sea Turtle, Leatherback (Dermochelys coriacea)
Sea Turtle, Atlantic Kemp's Ridley (Lepidochelys kempii)
Sea Turtle, Green (Chelonia mydas)
Sea Turtle, Loggerhead (Caretta caretta)
(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))
Last Updated: December 31 1969 19:00:00.
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