CHAPTER 31

FORMERLY

HOUSE BILL NO. 155

AS AMENDED BY HOUSE AMENDMENT NOS. 1 AND 2

AND SENATE AMENDMENT NOS. 4 AND 5

AN ACT TO AMEND CHAPTER 9, TITLE 7, DELAWARE CODE TO IMPLEMENT RESOLUTIONS OF THE DELAWARE BAY WEAKFISH COMMISSION FOR THE CALENDAR YEAR 1991.

WHEREAS, the Delaware Bay is generally divided in the middle by the boundary between Delaware and New Jersey; and

WHEREAS, Both Delaware and New Jersey independently manage the harvest of weakfish by widely different laws and regulations within their portion of the Delaware Bay; and

WHEREAS, the weakfish has been the most significant recreational and commercial fish of the last two decades in Delaware Bay; and

WHEREAS, the weakfish harvest in the Delaware Bay has dramatically declined and there are similar indications for 1991; and

WHEREAS, there is a concern that over-harvesting within the Delaware Bay is another potential cause of the declining weakfish population; and

WHEREAS, the Delaware Bay is recognized as a prime spawning area for weakfish; and

WHEREAS, there is a concern that the lack of uniform management of the harvest of weakfish within the Delaware Bay is another potential cause of the declining weakfish population; and

WHEREAS, a large by-catch mortality of juvenile weakfish in the North Carolina inshore shrimp trawl fishery is another potential cause of the declining weakfish populations; and

WHEREAS, the very large ocean harvest of weakfish off the North Carolina Coast winter trawl fishery is another potential cause of the declining weakfish population; and

WHEREAS, recent evidence indicates the winter trawl fishery for weakfish is harvesting the same stocks of weakfish that migrate into Delaware Bay during the spring and summer; and

WHEREAS, the decline of weakfish in the Delaware Bay is causing significant negative economic impact for Delaware and New Jersey businesses that support recreational and commercial fishing; and

WHEREAS, it is imperative that legislation be implemented before the beginning of the 1991 spawning season (recognized to start approximately April 1st) to ensure for the conservation of the weakfish's existence; and

WHEREAS, this is a major bi-state concern; and

WHEREAS, the Delaware Bay Weakfish Commission has been created and evaluated the problems with the decline of weakfish in the Delaware Bay.

NOW THEREFORE:

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. The provisions in this Act relative to reducing the landings of weakfish shall become effective on the date substantially similar or identical provisions become effective in the State of New Jersey. The Secretary of the Department of Natural Resources and Environmental Control (herein after the Department) shall determine if substantially similar or identical provisions take effect in the State of New Jersey. The provisions in this Act shall remain in effect only until March 31, 1992.

Section 2.

(a) Unless otherwise authorized and notwithstanding any of the provisions in Chapter 9, Title 7, Delaware Code, it shall be unlawful for any commercial finfisherman to land in Delaware more than seventy five percent of his average reported landings in pounds of weakfish for the previous three years (1988, 1989, and 1990). The Department shall inform each commercial finfisherman the pounds of weakfish he or she shall be permitted to land in the State during 1991, based upon landing reports submitted through January 31, 1991. The Department may authorize five additional commercial finfishermen to each land up to but not exceed 7500 pounds of weakfish in 1991 provided he/she submits to the Department notarized affidavits along with canceled checks, receipts or other documented evidence within 10 calendar days of the effective date of this Section that verify that he/she fished commercially at least 10 days with another commercial finfisherman during a fishing year and that all weakfish that were landed when fishing with other said commercial finfisherman were reported to the Department by said other commercial finfisherman. A notarized affidavit shall include the dates fished with other said commercial finfisherman when weakfish were reported as landings to the Department and the amount of weakfish in pounds that were reported on those dates to the Department. The affidavit shall be signed by the said other commercial fisherman and the commercial finfisherman requesting

authorization to land weakfish in 1991. Canceled checks, receipts and other documents should verify information in the affidavit. The Department shall determine the additional five commercial finfishermen to be authorized to land weakfish in 1991 based upon the order in which qualified requests are received by the Department. The amount of weakfish authorized to be landed by each additional commercial finfisherman shall be calculated by the Department to equal 75% of the average yearly landings claimed in the affidavit during the years 1988, 1989, and 1990, but in no event, greater than 7500 pounds.

(b) It shall be unlawful for any commercial finfishermen to land, transport or sell any weakfish in this State unless the Department has received a report of his/her landings of weakfish that were sold during the previous week. Said week is to be known as the report week. The report week shall begin at 12:01 A.M. on Saturday and end at 12:00 midnight on Friday, next ensuing. Each report shall be delivered to the Department
before 4:30 P.M. on the Friday following the report week or postmarked for delivery to the Department no later than midnight on the Tuesday following the report week. If a commercial finfisherman has not delivered a required report to the Department by the deadline specified, he/she shall not land, transport or sell any weakfish until he/she has delivered the required report to the Department. Each report shall include the pounds of finfish landed on each day of the report week on forms supplied by the Department. Each weekly report shall be signed by the commercial finfishermen and acknowledge that the report includes the total landings of weakfish sold during the report week. It shall be required that receipts for all
weakfish sold be attached to the report. Each receipt for weakfish sold shall contain the buyer's business name, the signature of the buyer, the commercial finfisherman's name or commercial foodfishing license number and the date and, pounds of weakfish purchased on that date by the buyer. These reports and receipts shall substitute for the monthly reports, required under Subsection 914(6), Chapter 9, Title 7 of the Delaware Code for only those commercial finfishermen who are eligible to commercially fish for weakfish under this Act.

(a) The Department may, only after the effective date of substantially similar or identical legislation in the State of New Jersey, adopt emergency regulations to implement the provisions of this section. Such regulations shall be deemed to be necessary to deal with an eminent danger to the weakfish fishery as authorized pursuant to Subsection 903(h), Chapter 9, Title 7 of the Delaware Code.

(a) Any commercial finfishermen convicted of a violation of the provisions of this section shall have his commercial foodfishing license and any foodfishing equipment permits suspended for a period of one year starting on the date of the conviction."

(a) The Department shall notify a commercial finfisherman when his individual quota of weakfish has been landed in Delaware as determined from

 the summation of receipts for weighed weakfish. These landings of weakfish may be used in the calculation of any future individual quotas of weakfish.

(f) It shall be unlawful for a commercial finfisherman to land any weakfish in this State for the remainder of the calendar year 1991 after he or she has been notified by the Department that his or her individual quota of weakfish has been landed. Any amount of weakfish landed by a commercial finfisherman in excess of his or her quota shall be subtracted from quotas for that individual in future years.

Section 3.

(a) Notwithstanding the provisions of Subsection 929(b)(3), Chapter 9, Title 7, Delaware Code, it shall be unlawful for any person, except as provided for recreational finfishermen in paragraph (b) of this section to possess any weakfish in the State unless said weakfish has a minimum total length of no less than twelve (12) inches measured from the tip of the snout to the tip of the tail.

(b) Notwithstanding the provisions of Subsection 929(b)(3), Chapter 9, Title 7, Delaware Code. it shall be unlawful for any recreational finfisherman while fishing in or being on the tidal waters of this State of Delaware to possess more than ten (10) weakfish, any of which shall not be less than thirteen (13) inches in total length measured from the tip of the snout to the tip of the tail.

Section 4.

Notwithstanding the provisions of Subsections 915(g), 923(a)(b) and (f), Chapter 9, Title 7, Delaware Code. it shall be unlawful for any recreational finfisherman to fish in the tidal waters of this State, when it is authorized lawful to do so, with a fixed gill net that exceeds 100 feet in length.

Section 5.

Notwithstanding the provisions of Subsection 933, Chapter 9, Title 7, Delaware Code, any enforcement agents of the Department after determining a person is or has been engaged in fishing, transporting finfish and/or offering finfish for sale may do the following without obtaining a warrant beforehand:

(1) Search, examine and/or inspect any person and/or any person's vehicle, vessel and/or any container or other receptacle in and/or on any vehicle or vessel that is under the control or possession of said person for the purpose of determining said person's compliance with this chapter or any regulation promulgated by the Department or permit issued by the Division of Fish and Wildlife pertaining to the size, limits, sale, purchase and possession of finfish and/or the method of taking finfish;

(2) Detain any person and/or person's vehicle or vessel for a reasonable length of time to conduct any search, examination and/or inspection thereof, as described in subdivision (1) of this section; and

Section 6.

Whenever the Weakfish Fishery Management Plan, approved by the Atlantic States Marine Fisheries Commission in 1985 is amended and approved by the Atlantic States Marine Fisheries Commission designated Weakfish Management Board, the provisions or parts thereof of this Act shall become null and void on the effective date the Department promulgates regulations adopting the provisions or parts of such a management plan when said provisions or parts thereof are contrary to any provisions of this Act.

Section 7.

Section 2 of this Act shall become effective on the date the State of New Jersey enacts and implements substantially similar or identical provisions as determined by the Department to effectively reduce the commercial landings of weakfish for individual commercial finfishermen in

New Jersey by seventy-five percent of their previous three years average landings and a license is required for all fishermen who sell fish in New Jersey.

Section 3 of this Act shall become effective on the date the State of New Jersey enacts and implements substantially similar or identical provisions as determined by the Department to:

(a) restrict the possession size of weakfish for recreational finfishermen to no less than 13 inches and a possession creel limit to no more than 10 weakfish per day, and

(b) restrict the possession size of weakfish for all other persons to no less than 12 inches.

Sections 1, 4, 5 and 6 of this Act shall become effective upon the date signed by ihe Governor.

Approved May 15, 1991.