CHAPTER 513

FORMERLY

SENATE BILL NO. 259

AS AMENDED BY SENATE AMENDMENTS NOS.

1 AND 3

AND HOUSE AMENDMENTS NOS. 1, 5,

6, 7, 8, 9, 10, 11 AND 12

AN ACT TO AMEND CHAPTERS 9 AND 19 THROUGH 27 OF TITLE 7, DELAWARE CODE, RELATING TO THE RULES AND REGULATIONS CONCERNING SHELLFISH.

Be it enacted by the General Assembly of the State of Delaware (two-thirds of the members elected to each House thereof concurring therein):

Section 1. Amend §916, Chapter 9, Title 7,Delaware Code, by striking same in its entirety.

Section 2. Amend Chapters 19 through 27, Title 7,Delaware Code, by striking the same in their entirety and substituting in lieu thereof revised Chapters 19 through 25 which shall read as follows:

"CHAPTER 19. GENERAL PROVISIONS.

§1901. Definitions.

The following definitions shall apply to Chapter 19 through Chapter 25 inclusive of this Title:

(a) "Commercial purpose" - a person's intent to sell shellfisheries to another.

(b) "Culled" - separated live shellfish from all other material and ogranisms.

(c) "Cultivation" - the process of preparing and/or improving shellfish grounds to foster the growth and survival of shellfish.

(d) "Department" - Department of Natural Resources and Environmental Control.

(e) "East line" - a political division of the Delaware Bay along a line running due east from the Port Mahon light to Elbow Cross light.

(f) "Hand tongs" - any grasping device consisting of two pieces joined at one end of a pivot and manipulated by physical exertion of a person.

(g) "Market oysters" - oysters harvested for sale to another for consumption.

(h) "Mean high water" - the level of the water surface which is an average of the highest daily tides over a period of at least 29 days.

(i) "Mechanical device" - an apparatus operated by a machine used to take shellfish.

(j) "Natural oyster beds" - those shellfish grounds designated to be "natural oyster beds" by the Department.

(k) "Nonresident" - any person not an alien who has not continously resided for one year within this state.

(1) "Patent tongs" - any grasping device consisting of two pieces joined at one end by a pivot and raised with a rope, cable, or other hoisting device used to take shellfish.

(m) "Person" - a human being.

designated by the Department to be used for the tonging of oysters according to the provisions of Chapter 19 through 25, Title 7, Delaware Code.

(o) "Resident" - any person not an alien who has continuously resided one year or more within this state.

(p) "Secretary" - the Secretary of the Department of Natural Resources and Environmental Control or his duly authorized designee provided any such delegation of authority is consistent with the provisions of Chapter 10, Title 29, Delaware Code.

(q) "Shellfish" - Any mulluska or crustacea including oysters, clams, lobsters, mussels, whelks, crabs and shrimp.

() "Shellfishing" - to attempt to take, catch, kill or reduce to possession any shellfish by any means whatsoever.

() "Shellfish grounds" - the submerged lands of the rivers, bays and oceans sustaining or capable of sustaining shellfish under the jurisdiction of the State.

() "Spat" - immature oysters.

§1902. Duties, powers, making and enforcing regulations.

(a) The Department shall have control and direction of the shellfish industry and of the protection of shellfish resources throughout this State. The Department may adopt, promulgate, amend and repeal regulations consistent with the law, which shall be enforced by the Department or any peace officers for the following purposes:

(2) To regulate, inspect and approve any vessel or equipment used in the shellfish industry in this State;

(3) To provide for the issuance of licenses to persons engaged in the shellfish industry in this State and for the revocation for cause of such licenses.

(4) To provide for the preservation and improvement of the shellfish resources of this State, when deemed necessary.

(b) The regulations of the Department shall have the force and effect of law and shall supersede all local ordinances and regulations enacted or adopted which are inconsistent therewith.

(c) For the purpose of enforcing the marine fisheries laws on the waters under the jurisdiction of the State of Delaware, the Division shall keep and maintain suitable vessels to patrol these waters. The patrol vessel shall be subject to call at all times to enforce the marine fisheries laws of the State. On board the patrol boats shall be kept log books in which shall be recorded the daily activities of all the functions performed on any work day.

§1903. Filing of regulations.

A copy of the regulations adopted pursuant to this Chapter and any amendments thereto shall be filed in the Office of the Secretary of State. The regulations of the Department shall be published by the Department in convenient form and distributed to or made available to all persons shellfishing in Delaware who request this information.

§ 1904. Taking of shellfish.

(a) It shall be unlawful to take any shellfish from any waters or shellfish grounds of this State unless specifically authorized by statute or regulation.

(b) It is unlawful to take or attempt to take shellfish for commercial purposes on Sundays.

(c) It shall be unlawful to take shellfish for commercial purposes between sunset and sunrise.

§ 1905. Leases.

(a) Authorized Lease of Shellfish Grounds

The Department is hereby authorized to lease, in the name of the State of Delaware, tracts or parcels of shellfish grounds to be used for protecting, planting and harvesting shellfish beneath the waters of this State, subject to the provisions, limitations and restrictions set forth herein.

(b) Shellfish grounds not Leasable

No lease, other than a scientific lease, shall be granted for any of the following shellfish grounds of this State, nor shall any person acquire by lease, assignment, appropriation or otherwise any of the following shellfish grounds:

(1) Shellfish grounds within one thousand (1000) feet of the natural shoreline (mean high water) or any waters under the jurisdiction of the State of Delaware.

(2) Natural oyster beds.

(3) Shellfish grounds within the confines of Indian River, Indian River Bay, or Rehoboth Bay until the completion of the following:

(i) The current shellfish survey being conducted by the Department of Natural Resources and Environmental Control is completed, and

ment plan for Indian River, Indian River Bay and Rehoboth Bay, have been held at the City of Rehoboth Beach, and

(iii) The General Assembly, by concurrent resolution, approves the shellfish management plan submitted by the Department of Natural Resources and Environmental Control for the commercial harvesting and recreational harvesting of shellfish within Indian River, Indian River Bay and Rehoboth Bay.

(c) Scientific Use of Shellfish Grounds

The Secretary is hereby authorized to issue a permit in the name of the State of Delaware for tracts or parcels of shellfish grounds to be used for scientific and/or management purposes determined by the Secretary to be in the best interests of shellfisheries management, to educational and/or scientific insitutions; such permit shall contain at least the following information and criteria: seasonal dates, seasonal harvest, size limits and the reason for the issuance of the permit. The cost of processing shall be paid by the applicant.

§ 1906. Size and Advertising of Shellfish Grounds.

(a) No new shellfish grounds shall be leased to any person in tracts consisting of less than 50 or more than 100 acres. All new leases will be in a general rectangular shape. The restriction contained in this paragraph shall not apply to those leases granted for scientific purposes as described in Section 1905(c).

(b) The Department shall annually advertise the general locations of shellfish grounds which may be leased and are not currently subject to a valid lease. Such advertisements shall be in one daily newspaper of state-wide distribution and shall be published on two separate occasions at least thirty (30) days apart between the 1st of January and the 1st of March of each calendar year. Upon specific request, the

Department shall furnish a more detailed description of the specific shell-lands available for lease.

(c) Any person wishing to lease shellfish grounds in accordance with the provisions of this section shall make application to the Department prior to March 15 on the form which shall be provided by the Department. Each application must be complete. The Department may require additional and/or supplemental information if deemed necessary.

(d) In the event that more than one application is received for the same grounds, the grounds will be leased on a competitive sealed bid over and above the base fee for the first year.

§ 1907. Fees for Lease.

(a) The Department shall charge seventy-five cents ($.75) per acre annually for shellfish grounds leased pursuant to this Chapter to a resident of the State of Delaware.

(b) The Department shall charge ten dollars ($10.00) per acre annually for new shellfish grounds leased pursuant to this Chapter to nonresidents.

(c) The Department shall charge one dollar and fifty cents ($1.50) per acre annually for shellfish grounds to nonresidents who hold valid leases at the time of adoption of this chapter.

(d) In addition to the above application fee for a shellfish ground lease, there will be an additional charge of fifteen dollars ($15.00) per corner within sixty (60) days of the approval and acceptance of a lease. The Department will inspect all corners for said leased grounds and where necessary will assist in the relocation of buoys to their correct location. All corners will be located in accordance with the lease as filed with the Department.

§ 1908. Term of Leases.

(a) All shellfish leases shall begin on May 1 and end April 30 of the following year. In no case shall a shellfish lease be transferred or subleased, except to a person eligible according to the provision of this chapter.

(b) Upon Department approval, a lease will be drawn up and executed by the Secretary of the Department and the applicant.

Said lease shall be recorded with the Department and shall grant the exclusive shellfishing rights of those shellfish grounds to the leasee.

§1909. Actions subsequent to the Granting of a Lease.

(a) Upon approval of the application, the successful applicant will, within thirty (30) days after location of the corners by the Department, mark all corners of the area leased with buoys or stakes approved by the Department, such buoys or stakes shall, in addition to other requirements of the Department, extend vertically at least six (6) feet above mean high water.

(b) Any buoys or stakes removed, destroyed or broken in such a manner that said buoys or stakes are less than six (6) feet above mean high water shall be replaced with a positive flotation buoy within five (5) days and subsequently a buoy or stake extending six (6) feet above mean high water within thirty (30) days.

§ 1910. Annual report.

(a) An annual report shall be made to the Department by all holders of shellfish leases, commercial shellfish licenses and scientific or educational permits prior to the renewal of such leases, licenses or permits. This report shall be made on a form provided by the Department and shall include all information requested by the Department.

(b) Failure to submit or falsification of the reports required by the Department shall result in the automatic revocation of the lease, license or permit and fine of no less than $100.00 nor more than $2500.00 to be determined on the estimated amount of fees owed the Department by that person for the previous years shellfish harvests.

§1911. Removal of shellfish.

(a) It shall be unlawful for any person to take, carry away or remove shellfish or equipment from shellfish grounds leased, pursuant to this Chapter, to a person other then himself. If convicted, said person shall be guilty of grand or petty larceny according to the value of shellfish or equipment in question.

() For the purpose of determining the value of shellfish unlawfully removed, all shellfish found on board a vessel utilized in the removal of shellfish from grounds leased to another shall be presumed to have been unlawfully removed from those leased grounds.

(a) Any vessel on or over grounds leased to another shall be presumed to be removing shellfish from those grounds if that vessel has overboard at that time any device used for the taking of shellfish.

§1912. Penalties.

(a) Any person who violates any of the provisions of Chapters 19 through 25, except §1910, §1911, §2102, §2306, §2506, §2509, or any rules or regulations adopted pursuant thereto, shall be fined twenty-five dollars ($25.00) for the first offense and one-hundred dollars ($100.00) for each offense thereafter. Magistrates shall have jurisdiction over all offenses under this section.

(b) Any person convicted of violating any of the provisions of Chapters 19 through 25, or any rules or regulations adopted pursuant thereto, may have, upon the recommendations to the Secretary by the majority of the Council on Shellfisheries and/or at the discretion of the Secretary, any licenses or permits issued to him revoked for a term to be determined by the Department.

§ 1913. Inspection and seizure.

(a) Any employee authorized by the Department at a reasonable time may board any boat, inspect equipment, materials or shellfish, or lands associated with or used in the taking or cultivation of shellfish.

(b) The Department may seize any shellfish or equipment as evidence which is believed to be in violation of or is being used by a violator of the provisions of Chapters 19 through 25 of the regulations promulgaCed pursuant thereto. Seized equipment at the discretion of the Department may be released upon the posting of a bond, the value of which shall be determined by the magistrate.

§1914. Disposition of evidence.

In the event that any shellfish are seized as evidence as a result of an investigation or an arrest for any violation of the statutes or regulations governing shellfish in the State of Delaware, said shellfish shall be disposed of as deemed appropriate by the Department.

§ 1916. Current leases.

All valid leases currently in effect upon adoption of this Chapter by the General Assembly will continue in full force and effect according to the provisions of this Chapter until April 30 of the year following the adoption of this Chapter at which time said leases will be renewable pursuant to the provisions, standards, guidelines, rules and regulations set forth in this Chapter and Chapters 21 through 25 or adopted pursuant thereto.

§ 1917. Expiration of licenses and permits.

All licenses and permits issued pursuant to Chapters 21 through 25 of this Title shall automatically expire on April 30 of each calendar year.

§ 1918. Reciprocity for Commercial Non-Resident Licenses.

(a) The provisions of this section applies to Title 7 of the Delaware Code.

(b) When by or pursuant to the laws of any other state should any other state impose any tax, other fee, or restrictions on non-residents for the privilege of commercial shellfishing or leasing of shellfish grounds within its boundaries, which tax, or other fee is in the aggregate greater or restriction is greater, to include but limited to the non-availability of license or leasing for non-residents, the same taxes, other fees, license requirements, and restrictions shall be imposed by the Delaware Division of Wildlife of the Department of Natural Resources and Environmental Control upon the residents of the State who seek to apply for a license to commercially shellfish or lease shellfish or lease shellfish grounds within the boundaries of this State.

CHAPTER 21. OYSTERS.

§2101. Leased and other grounds.

Shellfish grounds other than those specifically leased by the Department shall be closed to the taking of oysters at all times except those specific areas specified by the Department which shall be open during those times and days which the Department shall designate. The method, quantity and times of take in those specified areas will be governed by the rules and regulations of the Department and any specific conditions which the Department may place on any specific area.

§2102. Natural oyster beds.

It shall be unlawful for any person to dredge, take or harvest in any manner whatsoever seed oysters or any oysters from the natural oyster beds unless specifically authorized by the Department.

Any person who violates the provisions of this section shall be fined a minimum of $2,000.00.

§2103. Public tonging areas.

(a) The marking, working and planting of seed oysters on public tonging areas may be performed by the Department.

(b) It shall be unlawful to harvest oysters from the public tonging areas except as specifically authorized by the Department.

(c) It shall be unlawful to harvest oysters from the tributaries of the Delaware River and Bay except as authorized by the Department.

§2104. Method of take.

(a) It shall be unlawful for any person to use any hydraulic dredge or mechanical device which employs a vacuum or suction method for the taking, catching or harvesting of oysters from any natural oyster ground or public tonging area without the prior written consent of the Department.

(b) It shall be unlawful for any person to use catching devices other than patent tongs or hand tongs for the catching of oysters from any public tonging area. No more than two hydraulic patent tongs may be used per boat for the catching of oysters in any public tonging area.

(c) All oysters, oyster shells and other material, dredged, or in any manner raised or taken from the State-owned oyster beds north of the East Line shall be culled as soon as the same are emptied out of the dredges on the deck of the boat or vessel employed for that purpose and before the same are shoveled back from that portion of the deck used for emptying the dredges. All shells and other material, except oysters shall be immediately thrown back upon the beds or ground from which they have been taken. All such oysters, oyster shells and other materials shall be culled as aforesaid so closely than five (5) bushels thereof taken from any portion of a deckload of oysters, after they have been shoveled back from the part of the deck used for emptying the dredges aforesaid, shall not contain more than 20 percent of shells and other material.

() No oysters, which measure less than three (3) inches from hinge to mouth, shall at any time be taken from the public tonging areas or be in the possession of any person after being so taken; except that this prohibition shall not apply to seed oysters harvested under supervision of the Department or to spat adhering so closely as to be impossible to remove without destruction. All oysters, oyster shells and other material, tonged or in any manner raised or taken from the public tonging grounds within the jurisdiction of this State shall be culled before the same are removed from that portion of the deck used for emptying the tongs. All shells and other material, except oysters, shall be immediately thrown back upon the beds or ground from whch they have been taken. All such oysters, oyster shells and other materials shall be culled as aforesaid so closely that two (2) bushels thereof taken from any portion of a load of oysters, after they have been removed from that part of the deck used for emptying the tongs aforesaid, shall not contain more than 5 percent of shells and other material. The daily take of market oysters from the public tonging areas in the Delaware Bay shall be established by regulation.

§2105. Resident fees.

all market oysters previously removed from areas specified as natural oyster beds will be paid to the Department by April 30 of the next ensuing year.

(b) A fee of fifty cents ($.50) per bushel of oysters removed from the public tonging areas in Delaware Bay shall be paid to the Department by May 1 of the next ensuing year.

§2106. Nonresident fees.

(a) A harvest fee of one dollar ($1.00) to ten dollars ($10.00) per bushel for all market oysters previously removed from areas specified as natural oyster beds will be paid to the Department by April 30 of the next ensuing year.

(b) A fee of two dollars ($2.00) to twenty dollars ($20.00) per bushel of oysters removed from the public tonging areas in Delaware Bay shall be paid to the Department by April 30 of the next ensuring year based on the costs to the State for the public tonging program.

§2107. Vessel licensing.

(a) It shall be unlawful for any vessel to harvest and/or transplant oysters from the natural oyster beds or from leased grounds within the jurisdiction of the State of Delaware without possessing a valid current oyster harvesting license. Oyster harvesting licenses shall expire each year on April 30.

(b) Application shall be made on the forms provided by the Department and shall be issued only after approval of the contents of the application and upon the conditions set forth by the Department including the advance consent for a Departmental inspection of said vessel at any time.

(c) The fee for an oyster harvesting license shall be fifty dollars ($50.00) for residents and five hundred dollars ($500.00) for nonresidents.

§2108. Public tonging area license requirements.

It shall be unlawful for any person to harvest oysters from any public tonging areas unless said person has applied for and secured from the Department and has in his possession a valid public oyster tongers license. The fee for a public oyster tongers license shall be fifty dollars ($50.00) for residents and five hundred dollars ($500.00) for nonresidents. All public oyster tongers licenses shall expire on April 30 of each calendar year.

§2109. Natural oyster grounds reports.

It shall be unlawful for any person authorized by the Department to work on and remove oysters from the natural oyster grounds to not report his catches daily to the captain of the nearest available vessel of the Department.

§2110. Seed oysters; sources, inspection.

It shall be unlawful for any person to bring oysters from outside the State of Delaware to be placed in the waters of the State of Delaware without prior written permission from the Department.

§2111. Unloading locations.

It shall be unlawful for any person to unload oysters taken from the waters of shellfish grounds within the jurisdiction of the State of Delaware at any port or unloading facilities located outside the geographic boundaries of the State of Delaware.

§2112. Disposition of oysters removed from natural oyster beds.

grounds leased from the Department or on public tonging areas.

CHAPTER 23. BLUE CRABS (CALLINECTES SAPIDUS).

§2301. Minimum size.

It shall be unlawful for any person to take from any waters within the jurisdiction of the State of Delaware or have in his possession at any time any hard shell blue crab measuring less than five inches from tip to tip, nor any soft shell blue crab measuring less than three and one-half (31/2) inches from tip to tip, nor any peeler blue crab measuring less than three (3) inches from tip to tip. Any commercial measure of blue crabs shall not contain more than five percent (5010) crabs that are less than the respective minimum size.

§2302. Female blue crabs bearing eggs.

It shall be unlawful for any person to take or have in his possession or offer for sale at any time any female blue crab bearing eggs visible thereon (sponge crabs), or any female blue crab from which the egg pouch or bunion has been removed.

§2303. Commercial Crab Pot License.

(a) It shall be unlawful for any person to catch or land crabs for commercial purposes in this State unless said person has applied for and secured from the Department and has in his possession a valid commercial crab pot license. The fee for a resident commercial crab pot license shall be twenty-five dollars ($25) for up to fifty (50) pots; fifty dollars ($50) for up to one hundred (100) pots; seventy-five dollars ($75) for up to one hundred fifty (150) pots; and one hundred dollars ($100) for up to two hundred (200) pots. The fee for non-resident commercial crab pot licenses shall be

two hundred and fifty dollars ($250) for up to fifty (50) pots, five hundred dollars ($500) for up to one hundred (100) pots, seven hundred and fifty dollars ($750) for up to one hundred fifty (150) pots, and one thousand dollars ($1000) for up to two hundred (200) pots. Said license shall be valid only for commercial taking of crabs from one vessel owned and operated by the applicant or designees approved in the license. Designees for a holder of a Resident Commecial Crabpot license must be residents of the State of Delaware.

(b) The license issued pursuant to this section shall automatically expire on April 30.

() In the event that a licensee is unable to tend his crab pots from the vessel specified in his license application, said licensee shall apply to the Department within 48 hours after the boat or vessel has been disabled for a written permit to be carried on his person to tend his pots from another specified vessel for a period to be specified by the Department.

§2304. Area Permitted.

It shall be unlawful for any commercial crabber to catch or take, or attempt to catch or take for commercial purposes any hard shell, soft shell or peeler crabs from any waters of the rivers and bays of this State and the tributaries thereof nor sell, offer for sale or buy any hard shell crabs taken from said waters, except the Delaware Bay and the Delaware River.

§2305. Seasons and Limits.

No person shall catch and take or attempt to catch and take crabs in any of the waters under the jurisidiction of this State with any commercial crab pot between the first day of December of each year and the last day of February immediately following.

which may be set by any one licensee when, in its discretion, the Department determines from biological evidence that emergency restrictions are necessary to protect crabs or other shellfish resources of the State of Delaware, they may do so with such advance notice as it deems necessary.

No person shall catch and take or attempt to catch and take crabs by dredge in any of the waters under the jurisdiction of this State between March 31 of each year and December 15 thence next ensuing of any year.

§2306. Marking of Commercial Crab Pots and Vessels; Penalties.

(a) The buoys of all crab pots placed for commercial purposes shall be colored a specific color combination as assigned to each commercial crab pot licensee. The crabbing vessel specified on the license shall display the same color code assigned to the licensee on a panel measuring at least two feet (2') by two feet (2'). Said panel must be fully visible from either side of the vessel.

(b) It shall be unlawful for any person to lift any commercial crab pot from a vessel other than the one corresponding with the color code on that crab pot buoy. Any commercial crab pot which is not marked as specified in this section may be confiscated by the Department. Any person guilty of taking crabs from a commercial crab pot from a vessel other than the one corresponding with the color code of that pot buoy shall be fined one hundred dolars ($100).

§2307. Winter Dredge Crab License.

It shall be unlawful for any person to dredge for blue crabs in this State unless said person has applied for and secured from the Department and has in his possession a valid crab dredgers license. The fee for a resident crab dredgers license shall be fifty dollars ($50). The fee for a non-resident crab dredgers license shall be five hundred dollars ($500).

§2308. Area Permitted and Method of Take.

(a) Dredging for blue crabs is permitted only on unleased shellfish grounds in Delaware Bay. Under no circumstances, shall any person operate a dredge for the purpose of taking crabs over leased shellfish grounds, natural oyster beds, public tonging areas, or other areas declared off limits to potting or dredging for crabs by the Secretary, pursuant to the provisions of Chapters 19 through 25 of Title 7, Delaware Code.

() It shall be unlawful for any person to use any hydraulic dredge or mechanical device which employs a vacuum or suction method for the taking or catching or harvesting of crabs from any of the waters under the jurisdiction of this State without the prior written consent of the Department which may be granted for research purposes.

() Those crabs of legal size and condition taken by oysterman with a valid oyster harvesting license or by a clammer with a valid commercial dredge clam license while engaged in . legal dredging operations may be retained for non-commercial purpose.

§2309. Unloading Locations.

It shall be unlawful for any person to unload blue crabs taken from the waters or shellfish grounds within the jurisdiction of the State of Delaware at any port or unloading facilities located outside the geographic boundaries of the State of Delaware.

§2310. Noncommercial Crabbing.

(a) Noncommercial crabbing is permitted in any of the waters under the jurisdiction of the State of Delaware unless otherwise posted by the Department of Natural Resources and Environmental Control.

(b) It is unlawful for any person actively engaged in noncommercial crabbing to sell any crabs.

(c) A crab pot placed by a person for noncommercial purposes shall be marked with all white buoys and black lettering for the initials "N.C." followed by a dash and then followed by the owner's initials (i.e. John Smith would mark his pots as follows: "N.C. - J.S."). The use of more than two (2) crab pots by any individual shall consitute prima facie evidence of commercial intent and shall be unlawful.

CHAPTER 24. HARD CLAMS (MERCENARIA MERCENARIA).

§2401. Minimum Size.

It shall be unlawful for any person to possess hard clams taken from the waters under the jurisdiction of the State of Delaware which measure less than one and one-half (1 1/2) inches. Any commercial measure of hard clams shall not contain more than five percent (5%) clams that are less than one and one-half (1 1/2) inches.

§2402. Commercial Clam Tong/Rake License.

It shall be unlawful for any person to tong or to rake clams for commercial purposes in this State unless said person has applied for and secured from the Department and has in his possession a valid clam tong/rake license. The fee for a commercial clam tong/rake license shall be fifty dollars ($50) for residents and five hundred dollars ($500) for nonresidents. A commercial clam tong/rake license will entitle the holder to harvest a maximum number set by Department regulations.

§2403. Area Permitted; Method of Take with Clam Tong/Rake License.

shellfish grounds or contaminated area as determined by the Department in Delaware Bay, Indian River and Bay, Rehoboth Bay, Little and Big Assawoman Bays and the tributaries thereof, except a person may take clams from his own leased shellfish grounds.

(b) It shall be unlawful to take or attempt to take clams under a clam tong/rake license with any device from a vessel powered by sail or mechanical means.

§2404. Commercial Dredge Clam License.

It shall be unlawful for any person to dredge for hard clams in this State unless said person has applied for, secured from the Department and has in his possession a valid clam dredgers license. The fee for a resident clam dredgers license shall be fifty dollars ($50). The fee for a nonresident clam dredgers license shall be five hundred dollars ($500).

§2405. Area Permitted and Method of Take with Commercial Dredge Clam License.

(a) It shall be unlawful to dredge for hard clams with a commercial dredge clam license or leased shellfish grounds, except that a person may dredge hard clams from his own leased shellfish grounds.

(b) It shall be unlawful to dredge hard clams in any waters designated as contaminated by the Department of Health and Social Services.

(c) It shall be unlawful for any person to use any hydraulic dredge or mechanical device which employs a vacuum or suction method for the taking or catching or harvesting of clams from any of the waters under the jurisdiction of this State without the prior written consent of the Department.

§2406. Seasons and Limits.

The Department will establish by regulation the seasons for the taking of clams and/or limit the number of clams which may be harvested commercially by any one licensee. If, in its discretion, the Department determines from biological evidence that emergency restrictions are necessary to protect clams or other shellfish resources of the State of Delaware, they may do so with advance notice as it deems necessary.

§2407. Unloading Locations.

It shall be unlawful for any person to unload hard clams taken from the waters or shellfish grounds within the jurisdiction of the State of Delaware at any port or unloading facilities located outside the geographic boundaries of the State of Delaware.

§2408. Non-Commercial Clamming Permit.

(a) It shall be unlawful for any person to harvest, in any one day, hard clams for non-commercial purposes in excess of the daily recreational clam limit unless said person has applied for and received from the Department of Natural Resources and Environmental Control, and has in his possession a valid non-commercial clamming permit. The fee for a resident non-commercial clam permit will be five dollars ($5.00). The fee for a non-resident non-commercial clamming permits will be fifty dollars ($50.00).

(b) The Department will establish, by regulation, the seasons for taking clams and/or limit the number of clams that may be harvested in any one day for non-commercial clamming permit holders.

§2409. Recreational Clamming.

(a) Any person may harvest hard clams for recreational purposes without a license or permit. Designees of a resident commercial lobster license shall be residents of the State of Delaware.

(b) The Department will establish, by regulation, the seasons for the taking of clams and/or limit the number of clams which may be taken for recreational purposes.

CHAPTER 25. AMERICAN LOBSTERS (HOMARUS AMERICANUS).

§2501. Minimum Size.

It shall be unlawful for any person to take from any waters within the jurisdiction of the State of Delaware or have in his possession at any time any American lobster measuring less than three and three-sixteenths inches (3 3/16") in length measured from the rear end of the eye socket along a line parallel to the center line of the body shell (Carapace) to the posterior end of the body shell.

§2502. Female Lobsters Bearing Eggs.

It shall be unlawful for a person to take, offer for sale or have in his possession at any time any female lobster bearing eggs visible thereon (berried lobsters) or any female lobster from which the eggs have been removed.

§2503. Landing of Dismembered Lobsters.

It shall be unlawful for any person, firm or corporation to bring to shore in Delaware or have in possession on the waters of this State any dismembered lobsters, detached tails or claws, picked or cooked lobster meat.

§2504. Commercial Lobster Pot License.

(a) It shall be unlawful for any person to catch or land lobsters for commercial purposes in this State unless said person has applied for, secured for the Department and has in his possession a valid commercial lobster pot license. The fee for a resident commercial lobster license shall be fifty dollars ($50). The fee for a nonresident commercial lobster license shall be five hundred dollars ($500). Said license shall be valid only for the commercial taking of lobsters from one vessel operated by the applicant or designee as specified in the license.

(b) In the event that a licensee is unable to tend his lobster pots from the vessel specified in his license applications, said licensee shall apply to the Secretary for a written permit to be carried on his person to tend his pots from another specified vessel for a period to be specified by the Department.

§2505. Area Permitted and Method of Take.

(a) Potting for lobsters is permitted in any waters under jurisdiction of the State of Delaware.

(b) It shall be unlawful to take or attempt to take lobsters for commercial purposes by any method other than a lobster pot, the number of and design of said pots will be established by regulation.

(c) It shall be unlawful to take or attempt to take lobsters by dragging, dredging, trawling, and spearing.

§2506. Marking of Commercial Lobster Pots and Vessels.

The buoys of all lobster pots placed for commercial purposes shall be marked with the color code and number that is assigned to each commercial lobster pot licensee. All buoys must be of a positive flotation material. The lobstering vessel specified on the license shall display the color code assigned to the licensee on a panel measuring at least two feet (2') by two feet (2'). Said panel must be fully visible from either side of said vessel. It shall be unlawful for any person to lift any commercial lobster pot from a vessel other than the one corresponding to the color code on that pot buoy. Any pot attached to a buoy, which is not marked as specified in the regulation, may be confiscated by the Department. Any person guilty of removing lobsters from any commercial lobster pot from a vessel other than the one corresponding to the color code on that pot buoy shall be fined one hundred dollars ($100).

§2507. Seasons and Limits.

The Department will establish by regulation the seasons for the taking of lobsters and will determine the number of lobster pots which may be set by any one licensee. If, in its discretion, the Department determines from biological evidence that emergency restrictions are necessary to protect lobsters or other shellfish resources of the State of Delaware, they may do so with advance notice as it deems necessary.

§2508. Noncommercial Lobstering.

(a) A lobster pot placed by a person for noncommercial purposes shall be marked with a buoy painted white and have black lettering and be marked with the initials "N.C." followed by a dash and then followed by the owner's initials (i.e. John Smith would mark his lobster pot buoys as follows: "N.C. - J.S."). The use of more than two (2) lobster pots by any individual or his agents shall constitute prima facie evidence of commercial intent and shall be unlawful.

(b) Noncommercial potting for lobster is permitted in any waters under the jurisdiction of the State of Delaware.

() It shall be unlawful for any person who is engaged in noncommercial lobstering to sell any lobsters.

(a) Any individual diver may catch, by hand up to two lobsters a day.

§2509. Unloading Locations.

It shall be unlawful for any person to unload lobsters taken from the waters or shellfish grounds within the jurisdiction of the State of Delaware at any port or unloading facilities located outside the geographic boundaries of the State of Delaware."

Section 3. This Act shall become effective 30 days

after signature by the Governor.

Approved July 7, 1976