CHAPTER 284

FORMERLY

HOUSE BILL NO. 315

AS AMENDED BY HOUSE AMENDMENT NOS. 1 AND 2

AN ACT TO AMEND CHAPTER 19, PART II, TITLE 7, DELAWARE CODE AND ADD A NEW CHAPTER 28 TO PART II, TITLE 7, DELAWARE CODE RELATING TO FISHING, POTTING, OR DREDGING FOR CONCHS.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Two—thirds of all members elected to each House thereof concurring therein):

SECTION 1. Amend Subsections 1901, 1912(a) and (b), 1913(b) and 1916,

Chapter 19, Part II, Title 7 of the Delaware Code by striking the words "through 25" as they appear therein and substitute in lieu thereof the words "through 28".

Section 2. Amend Subsection 1904(b), Chapter 19, Part II, Title 7 of the Delaware Code by adding the words "conchs (whelks)" between the words "crabs" and "and".

Section 3. Amend Subsection 1904(c), Chapter 19, Part II, Title 7 of the Delaware Code by adding the words or a commercial conch pot licensee" between the words "licensee" and may and also by adding the words or conchs respectively" between the words "crabs" and "1 hour".

Section 4. Amend Part II, Title 7, Delaware Code by adding thereto a new Chapter 28 to read as follows:

"CHAPTER 28. CONCHS (WHELKS) Busygon canaliculatum and D. carica. Subsection 2801. Definitions.

(a) "Conch Pot" means any pot, basket, box, cage, container or other similar catching device that has at least one escape vent measuring at least 5" x 10" in the top or parlor section of said pot, basket, box, cage or container or other similar catching device.

(b) "Bullrake" means any rake with a width of more than fourteen (14) inches measured perpendicular to the tines or any rake with a handle of more than seven (7) feet.

Subsection 2802. Commercial Conch Pot License; Fees; Exemptions.

(a) It shall be unlawful for any person to catch, take or harvest conchs while fishing more than two (2) conch pots in the waters of this State unless said person has in possession a valid commercial conch pot license.

(b) It shall be unlawful for any person to attempt to catch, take or harvest conchs whi le fishing more than two (2) conch pots in the waters of this State unless said person has in possession a valid commercial conch pot license.

(c) It shall be unlawful for the operator of any vessel not equipped with a dredge, to have on board said vessel more than five (5) bushels of conchs unless said operator has in possession a valid commercial conch pot license.

(d) It shall be unlawful for a commercial conch pot licensee to place, use, set or tend more than two (2) conch pots from any vessel other than a vessel owned and operated by said licensee. Said vessel shall be listed by the Department on the licensee's commercial conch pot license.

(e) It shall be unlawful for more than one (1) commercial conch pot licensee to place, use, set or tend conch pots from the same vessel.

(f) The Department is authorized to issue a commercial conch pot license to a person who applies for same on forms to be supplied by the Department. To be eligible for a commercial conch pot license, an

applicant shall comply with one of the following conditions:

(1) produce receipts, personal income tax records or affidavits from a certified public accountant that indicates said applicant previously harvested conchs in Delaware for commercial purposes; or

(2) be eligible for a commercial crab pot license in Delaware pursuant to the provisions of 7 Del. C. §1918.

An applicant who is eligible for a commercial conch pot license shall apply and pay all applicable fees to the Department within 90 days of the effective date of this Act. An applicant who is not eligible or an applicant who does not obtain a commercial conch pot license within 90 days of the effective date of this Act or a commercial conch pot licensee who fails to renew his license as provided in the provisions of paragraph (g) in this subsection may register with the Department on a form provided by the Department for a commercial conch pot license that may become valid after a five-year waiting period.

(g) A commercial conch pot licensee shall renew his or her license for at least one year in every three consecutive years. Any person who does not renew his or her commercial conch pot license for at least one year in every three consecutive years shall be deemed not eligible for a commercial conch pot license.

(h) The annual fee for a commercial conch pot license shall be $57.50 for residents and $575.00 for non-residents.

(I) A commercial conch pot licensee may designate no more than two persons who are residents of this State on his or her license as designee(s). A commercial conch pot licensee's designee is authorized to place, use, set, tend or remove the licensee's conch pots while operating a vessel listed on the licensee's commercial conch pot license without the licensee being on board the vessel.

Subsection 2803. Commercial Conch Dredge License; Fees; Exceptions.

(a) It shall be unlawful for any person, while operating a vessel equipped with a dredge or a vessel with a bullrake on board, to possess more than fifteen (15) bushels of conchs unless said person has in possession a valid commercial conch dredge license.

(b) It shall be unlawful for a commercial conch dredge licensee to dredge conchs from any vessel other than a vessel owned and operated by said licensee. Said vessel shall be listed by the Department on the licensee's commercial conch dredge license.

(c) The Department is authorized to issue a commercial conch dredge license to a person who applies for same on forms to be supplied by the Department. To be eligible for a commercial conch dredge license, an applicant shall meet one of the following conditions:

(1) produce receipts, personal income tax records or affidavits from a certified public accountant the applicant previously harvested conchs in Delaware for commercial purposes; or

(2) be eligible for a commercial crab dredger's license in Delaware according to the provisions of 7 Del.C. §1918.

An applicant who is eligible for a commercial conch dredge license shall apply and pay all applicable fees to the Department within 90 days of the effective date of this Act. An applicant who is not eligible or an applicant who does not obtain a commercial conch dredge license within 90 days of the effective date of this Act or a commercial conch dredge licensee who fails to renew his license as provided in the provisions of paragraph (d) in this subsection may register with the Department on a form provided by the Department for a commercial conch dredge license that may become valid after a five-year waiting period.

(d) A commercial conch dredge licensee shall renew his or her license for at least one year in every three consecutive years. Any person who does not renew his or her commercial conch pot license for at least one year in every three consecutive years shall be deemed not eligible for a commercial conch dredge license.

(e) The fee for a resident commercial conch dredge license shall be $57.50 for residents and $575.00 for non-residents.

Subsection 2804. Minimum Size.

It shall be unlawful for any person to possess any conch which measures less than a minimum possession size limit specified in regulations promulgated by the Department. The Department is authorized to promulgate regulations to establish the minimum possession size limit of conchs.

Subsection 2805. Areas Closed For Commercial Conch Potting or Dredging.

(a) It shall be unlawful for any person to operate a dredge for the purpose of catching, taking or harvesting conchs over leased shellfish grounds, natural oyster beds or other areas declared closed to dredging for conchs by the Department by regulation. Provided, however, that those conchs of legal size taken by a person on a vessel with a valid oyster harvesting license or a person with a valid commercial clam dredge license while engaged in lawful dredging operations, whether or not over leased shellfish grounds, natural oyster beds, or other areas declared closed to dredging for conchs by the Department, may be retained for non-commercial purposes. The Department is authorized to promulgate regulations that close areas to either dredging or potting for conchs.

Subsection 2806. Seasons Closed For Commercial Conch Potting or Dredging.

The Department is authorized to promulgate regulations that close seasons to either dredging or potting for conchs.

Subsection 2807. Marking of Conch Pots.

(a) It shall be unlawful for any commercial conch pot licensee to catch, take or harvest conchs with any conch pot or attempt to catch, take or harvest conchs with any conch pot unless said conch pot is attached to a floating buoy(s). The buoy(s) for commercial conch pots shall be a
specific color combination as assigned to each commercial conch pot licensee by the Department. Any person who has a valid commercial crab pot license shall be assigned the same color code for his or her commercial conch pot buoys as assigned to his or her commercial crab pots. An additional buoy shall be attached at the farthest position from the conch pot which shall be colored one half white and one half black. The Department shall assign a commercial conch pot number to each commercial conch pot licensee. Inscribed on the one half white and one half black buoy the farthest from the conch pot shall be a capital letter "C" followed by said person's commercial conch pot number. The letter "C" and conch pot number shall be at least two inches tall, and a contrasting color to be legible at all times.

(b) It shall be unlawful for any person other than a commercial conch pot licensee to catch, take or harvest conchs with any conch pot or attempt to catch, take or harvest conchs with any conch pot unless said conch pot is attached to an all white buoy with said persons full name and permanent mailing address inscribed either on the white buoy or on a waterproof tag attached to said buoy. The person's name and address shall be legible at all times.

Subsection 2808. Conch Pot Attendance; Abandonment; Confiscation;

Forfeiture.

(a) It shall be unlawful for any person who places, uses or sets a conch pot in the tidal waters of this State to fail to tend and remove conchs from said conch pot at least once every 72 hours.

(b) Failure to tend and remove conchs from a conch pot in the tidal waters of this State at least 72 hours after said pot is tagged by the Department shall constitute abandonment of said conch pot.

(c) Any employee of the Department authorized to enforce this Chapter shall be authorized to seize and confiscate any conch pot which has been determined to have been abandoned pursuant to paragraph (b) of this Subsection.

(d) Upon a determination that a conch pot has been abandoned and seized by the Department, ownership in said conch pot shall be forfeited to the Department.

(e) Notwithstanding, the provisions set forth in subsections (a), (b), and (c) of this subsection, any employee of the Department authorized to enforce this Chapter shall be authorized to seize any conch pot which fails to be placed, used or set in compliance with the provisions of this Chapter.

(f) Title to a conch pot seized by the Department and not claimed by the lawful owner after proper notification from the Department within 90 days of said notification shall be forfeited to the Department.

Section 5. Effective Date.

This Act shall become effective 60 days after being signed by the Governor.

Approved June 27, 1994.