DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL

Division of Fish and Wildlife

Statutory Authority: 7 Delaware Code, Section 903(e)(2)a.1 (7 Del.C. §903(e)(2)a.1)

7 DE Admin. Code 3503

FINAL

Secretary's Order No.: 2023-F-0015

RE: Approving Final Regulation, pursuant to 7 Del. C. §903(e)(2)a.1, to Amend 7 DE Admin. Code 3503 - Striped Bass Recreational Fishing Seasons; Methods of Take; Creel Limit; Possession Limit.

Date of Issuance: June 30, 2023

Effective Date of the Amendment: 48 hours following publication of this Secretary's Order and regulation on the Department's website: https://de.gov/dnrecorders

3503 Striped Bass Recreational Fishing Seasons; Methods of Take; Creel Limit; Possession Limit.

Under the authority vested in the Secretary of the Department of Natural Resources and Environmental Control ("Department" or "DNREC"), pursuant to 7 Del. C. §903(e)(2)a.1, and all other relevant statutory authority, 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 amendment.

Notwithstanding 29 Del.C. Ch. 101 (which sets forth the standardized procedures whereby a state agency shall promulgate regulations), the Department also has the statutory authority under 7 Del. C. §903(e)(2)a.1 to promulgate certain regulations in order to adopt a specified management measure for finfish, subject to 7 Del.C. Ch. 9, Finfishing in Tidal Waters, by the issuance of a Secretary's Order. The Department is allowed to follow this abbreviated regulatory promulgation process only in instances where the management measures are specified by, and ensures compliance or maintains consistency with, a fisheries management plan or rule established by the Atlantic States Marine Fisheries Commission ("ASMFC"), the Atlantic Coastal Fisheries Cooperative Management Act, the Mid-Atlantic Fishery Management Council, or the National Marine Fisheries Service.

Whenever the Department promulgates a regulation pursuant to 7 Del. C. §903(e)(2)a.1, it shall also (1) publish on its website a public notice with a copy of the Secretary's Order and final regulation that implements the specific management measure; and (2) file the Secretary's Order and regulation that implements the specified management measure in the next available issue of the Delaware Register of Regulations. The final regulation becomes effective 48 hours after the Department has published the aforementioned public notice on its website, as mandated by 7 Del. C. §903(e)(2)a.2.

Background, Procedural History and Findings of Fact

This order amends 7 DE Admin. Code 3503 - Striped Bass Recreational Fishing Seasons; Methods of Take; Creel Limit; Possession Limit as part of an effort to reduce striped bass mortality in the recreational fishery by adopting a specified management measure required by the ASMFC's Amendment 7 to the Interstate Fisheries Management Plan for Atlantic Striped Bass ("FMP"). Specifically, this amendment prohibits the use of a gaff, which is a hook, with or without a handle, used for holding or lifting striped bass by recreational anglers. This order is required for Delaware to remain compliant with the ASMFC FMP, which was approved in 2022.

The 2018 benchmark Striped Bass stock assessment and peer review conducted by the Northeast Regional Stock Assessment Workshop found that striped bass were overfished and overfishing was occurring. Approximately 90% of striped bass removals were attributed to the recreational fishery and recreational removals attributed to catch and release mortality were estimated to be as high as 50% of total recreational removals in recent years. This proposed regulatory action will reduce release mortality of recreationally caught striped bass by prohibiting the use of gaffs, which can critically injure striped bass when used to remove striped bass from the water.

The Department has the statutory basis and legal authority to act with regard to the promulgation of the proposed amendments to 7 DE Admin. Code 3503 - Striped Bass Recreational Fishing Seasons; Methods of Take; Creel Limit; Possession Limit, pursuant to 7 Del. C. §§901 (c), (d) and 903(e)(2)a.1.

ORDER

In accordance with 7 Del. C. §903(e)(2)a.1, it is hereby ordered, this 30th day of June, 2023, that the above referenced amendments to 7 DE Admin. Code 3503 - Striped Bass Recreational Fishing Seasons; Methods of Take; Creel Limit; Possession Limit, a copy of which is hereby attached, are supported by the evidence contained herein and are hereby adopted. The above referenced amendment shall take effect 48 hours following publication of this Secretary's Order and regulation on the Department's website in accordance with 7 Del. C. §903(e)(2)a.2.

Lisa Borin Ogden for

Shawn M. Garvin

Secretary

3503 Striped Bass Recreational Fishing Seasons; Methods of Take; Creel Limit; Possession Limit.

(Penalty Section 7 Del.C. §936(b)(2))

1.0 Definitions

The following words and terms, when used in this regulation, have the following meanings unless the context clearly indicates otherwise:

“Bait” means any marine or aquatic organism live or dead, whole or parts thereof.

“Circle hook” means a hook where the point is pointed perpendicularly back towards the shank.

"Gaff" means a hook, with or without a handle, used for holding or lifting fish.

“Non-offset” means the hook point and barb being in the same plane as the hook shank.

2.0 It is lawful for any person to take and reduce to possession striped bass from the tidal waters of this State at any time except as otherwise set forth in this regulation or in Tidal Finfish Regulations 3502 and 3504.

3.0 It is unlawful for any recreational fisherman to take or attempt to take any striped bass from the tidal waters of this State with any fishing equipment other than a hook and line or a spear while said recreational fisherman using the spear is underwater. Recreational gill net permittees are not authorized to take and reduce to possession any striped bass in gill nets.

4.0 Unless otherwise authorized, it is unlawful for any recreational fisherman to take and reduce to possession more than one striped bass per day (a day being 24 hours) from the tidal waters of this State. Any striped bass taken from the tidal waters of this State that is not immediately returned, without unnecessary injury, to the same waters from which it was taken, is deemed taken and reduced to possession for purposes of this subsection.

5.0 Unless otherwise authorized, it is unlawful for any recreational fisherman to have in possession more than one striped bass at or between the place said striped bass was taken and said fisherman's personal abode or temporary or transient place of lodging.

6.0 Notwithstanding 7 Del.C. §943, which only relates to commercial fishermen, it is lawful for a recreational fisherman to possess striped bass that have not been tagged, unless otherwise prohibited.

7.0 It is unlawful for any recreational fisherman to fish for striped bass with bait using any hook other than a non-offset circle hook. This shall not apply to any artificial lure with bait attached.

8.0 It is unlawful for a recreational fisherman to use a gaff on a striped bass.

7 DE Reg. 1205 (03/01/04)

18 DE Reg. 889 (05/01/15)

20 DE Reg. 467 (12/01/16)

24 DE Reg. 175 (08/01/20)

24 DE Reg. 803 (02/01/21)

25 DE Reg. 103 (07/01/21)

27 DE Reg. 115 (08/01/23) (Final)