DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL
Division of Fish and Wildlife
FINAL
Secretary's Order No.: 2022-F-0007
RE: Approving Final Regulation, pursuant to 7 Del. C. §903(e)(2)a.1, to Amend 7 DE Admin. Code 3526: Scup
Date of Issuance: April 29, 2022
Effective Date of the Amendment: 48 hours following publication of this Secretary's Order and regulation on the Department's website
3526 Scup Size 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 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€(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 3526: Scup as part of an effort to reduce Scup mortality in the recreational fishery by adopting specified management measures approved by the ASMFC's Summer Flounder, Scup, and Black Sea Bass Board ("Board") at its December 14, 2021 meeting. Specifically, this amendment increases the recreational minimum size limit for Scup by one inch, from 8 to 9 inches.
The estimated 2021 recreational Scup harvest exceeded the Recreational Harvest Limit (RHL) by 56%, thus the Board was required to take action to constrain the 2022 recreational Scup harvest to the 2022 RHL. The action taken by the Board and the Mid-Atlantic Fishery Management Council, requires all states in the management unit to increase their recreational minimum size limit by one inch. To meet the federal waters recreational size limit increase, the size limit is increased from 8 to 9 inches. This action is expected to reduce 2022 recreational harvest by at least 33% and constrain harvest to the RHL.
The Department has the statutory basis and legal authority to act with regard to promulgation of the proposed amendments to 7 DE Admin. Code 3526: Scup pursuant to 7 Del. C. §§901 (c & d) and 903(e)(2)a.1. This specific management measure is required by the ASMFC Summer Flounder, Scup, and Black Sea Bass Board to keep Delaware compliant with the ASMFC Fishery Management Plan and Addendum I for Scup.
ORDER
In accordance with 7 Del. C. §903(e)(2)a.1, it is hereby ordered, this 29th day of April, 2022 that the above referenced amendments to 7 DE Admin. Code 3526: Scup, 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.
Shawn M. Garvin
Secretary
3526 Scup Size Limit
(Penalty Section 7 Del.C. §936(b)(2))
1.0 It shall be unlawful for any recreational fisherman to have in possession any scup, Stenotomus chrysops, that measures less than eight (8) nine inches, total length
2.0 It shall be unlawful for any person who has been issued a commercial food fishing license by the Department to possess any scup that measures less than nine (9) inches, total length.
3.0 It shall be unlawful for any commercial finfisherman to sell, trade or barter or attempt to sell, trade or barter any scup or part thereof that is landed in this State by said commercial finfisherman after a date when the de minimis amount of commercial landings of scup is determined to have been landed in this State by the Department. The de minimis amount of scup shall be 0.1% of the coastwide commercial quota as set forth in the Scup Fishery Management Plan approved by the Atlantic State Marine Fisheries Commission.
4.0 It shall be unlawful for any recreational fisherman to have in possession more than 50 scup at or between the place where said scup were caught and said recreational fisherman's personal abode or temporary or transient place of lodging.
