§12551-A. Dealing in live smelts and baitfish

1.  Definition.  For purposes of this section, "business facility" means a fixed place of business and does not include a motor vehicle or trailer. Live smelts or baitfish that are held in or on a motor vehicle or trailer by a person licensed under this section are considered in transport even if the motor vehicle or trailer may be temporarily placed at a specific location by the licensee, or the licensee's designee, for the purpose of selling live smelts or baitfish to anglers.

[PL 2003, c. 655, Pt. B, §259 (NEW); PL 2003, c. 655, Pt. B, §422 (AFF).]

2.  License required.  A person may not:

A. Possess for resale, sell or offer to sell live smelts, Osmerus mordax, or live baitfish, as defined in section 10001, subsection 6, without an appropriate and valid license issued under subsection 3;   [PL 2003, c. 655, Pt. B, §259 (NEW); PL 2003, c. 655, Pt. B, §422 (AFF).]

B. Engage in taking or assist in taking live baitfish for resale from inland waters without a valid baitfish wholesaler's license;   [PL 2003, c. 655, Pt. B, §259 (NEW); PL 2003, c. 655, Pt. B, §422 (AFF).]

C. Engage in taking or assist in taking live smelts for resale from inland waters without a smelt wholesaler's license;   [PL 2017, c. 164, §19 (AMD).]

D. Sell live smelts or baitfish from more than one facility without an appropriate and valid license for each facility; or   [PL 2017, c. 164, §19 (AMD).]

E. When licensed under this section, receive, possess for resale, sell or offer to sell gift baitfish or gift smelts without an appropriate and valid license issued under subsection 3.   [PL 2017, c. 164, §20 (NEW).]

Each day a person violates this subsection, that person commits a Class E crime for which a minimum fine of $50 and an amount equal to twice the applicable license fee must be imposed.

[PL 2017, c. 164, §§19, 20 (AMD).]

2-A.  License required.

[PL 2017, c. 164, §21 (RP).]

3.  Issuance; eligibility.  The commissioner may issue to a resident or nonresident upon payment of the appropriate fee:

A. A live bait retailer's license that permits a person to possess for resale, sell or offer to sell live smelts and baitfish;   [PL 2003, c. 655, Pt. B, §259 (NEW); PL 2003, c. 655, Pt. B, §422 (AFF).]

B. A baitfish wholesaler's license that permits a person to take and possess for resale, sell or offer to sell live baitfish; and   [PL 2003, c. 655, Pt. B, §259 (NEW); PL 2003, c. 655, Pt. B, §422 (AFF).]

C. A smelt wholesaler's license that permits a person to take and possess for resale, sell or offer to sell live smelts.   [PL 2003, c. 655, Pt. B, §259 (NEW); PL 2003, c. 655, Pt. B, §422 (AFF).]

[PL 2003, c. 655, Pt. B, §259 (NEW); PL 2003, c. 655, Pt. B, §422 (AFF).]

4.  Schedule of fees.  The fees for licenses under this section are:

A. For a live bait retailer's license, $16;   [PL 2005, c. 12, Pt. III, §29 (AMD).]

B. For a baitfish wholesaler's license, $26; and   [PL 2005, c. 12, Pt. III, §29 (AMD).]

C. For a smelt wholesaler's license, $71.   [PL 2005, c. 12, Pt. III, §29 (AMD).]

[PL 2005, c. 12, Pt. III, §29 (AMD).]

5.  Live bait retailer's license authorizations and restrictions.  The provisions of this subsection apply to the selling of live smelts and baitfish under a live bait retailer's license.

A. The holder of a live bait retailer's license may:

(1) Sell live baitfish or smelts acquired from a person licensed under this section to deal in live baitfish or smelts;

(2) Designate others to assist in selling live smelts and baitfish at the license holder's business facility;

(3) Transport live smelts and baitfish or designate another to transport live smelts and baitfish on the license holder's behalf; and

(4) Possess more than the daily bag limit of smelts, provided that the smelts were acquired from a person licensed under this section to deal in live smelts.   [PL 2003, c. 655, Pt. B, §259 (NEW); PL 2003, c. 655, Pt. B, §422 (AFF).]

B. The holder of a live bait retailer's license:

(1) May not take or possess for the purposes of retail sale live baitfish or smelts from the inland waters of the State or private ponds;

(2) Shall present a receipted invoice, bill of lading, bill of sale or other satisfactory evidence of the lawful possession of live baitfish or smelts for retail sale to any agent of the commissioner upon request; or

(3) May not possess at that person's place of business any species of fish that may not legally be sold as bait.

Each day a person violates this paragraph that person commits a class E crime.   [PL 2003, c. 655, Pt. B, §259 (NEW); PL 2003, c. 655, Pt. B, §422 (AFF).]

[PL 2003, c. 655, Pt. B, §259 (NEW); PL 2003, c. 655, Pt. B, §422 (AFF).]

6.  Baitfish wholesaler's license authorizations and restrictions.  The provisions of this subsection apply to the taking and selling of baitfish under the baitfish wholesaler's license.

A. The holder of a baitfish wholesaler's license may:

(1) Take for the purpose of sale live baitfish from the inland waters of the State or from private ponds;

(2) Use particles of food for the purpose of luring baitfish to a baitfish trap, a dip net, a drop net, a lift net or a bag net;

(3) Designate others to assist the holder in selling live baitfish at the holder's business facility; and

(4) Transport live baitfish or designate another to transport live baitfish on the license holder's behalf.   [PL 2003, c. 655, Pt. B, §259 (NEW); PL 2003, c. 655, Pt. B, §422 (AFF).]

B. The holder of a baitfish wholesaler's license may not:

(1) When engaged in taking, or assisting in taking, live baitfish for resale from inland waters, fail to exhibit a baitfish wholesaler's license to any agent of the commissioner upon request;

(2) Take baitfish other than by use of a seine as defined in section 10001, subsection 55; a baitfish trap as defined in section 10001, subsection 7; a dip net, a drop net, a lift net or a bag net; or by hook and line;

(3) Attempt to take live bait for resale from the inland waters of the State by fishing through the ice using drop nets unless the holder marks all holes made in the ice by the holder for that purpose. The holes must be marked by suspending at least one strand of fluorescent biodegradable tape at least 3 feet above the ice around the entire perimeter of the hole so that the tape is visible from all sides;

(4) Take eels;

(5) Take or sell suckers, Genus Catostomus, greater than 10 inches in length between April 1st and September 30th of each year; or

(6) Possess at that person's place of business any species of fish that may not legally be sold as bait.

Each day a person violates this paragraph that person commits a class E crime.   [PL 2003, c. 655, Pt. B, §259 (NEW); PL 2003, c. 655, Pt. B, §422 (AFF).]

[PL 2003, c. 655, Pt. B, §259 (NEW); PL 2003, c. 655, Pt. B, §422 (AFF).]

7.  Smelt wholesaler's license authorizations and restrictions.  The provisions of this subsection apply to the taking and selling of live smelts under the smelt wholesaler's license.

A. The holder of a smelt wholesale dealer's license may:

(1) Take live smelts for resale from inland waters or private ponds. The taking of live smelts from inland waters must be in accordance with general rules adopted by the commissioner in regard to the taking of smelts. Except as provided in paragraph B, the holder of a smelt wholesaler's license shall comply with the same daily bag limit and the same tackle restrictions that apply to all other anglers and is subject to the same penalties for violations of those limits and restrictions. This subparagraph does not apply to a holder of a fish cultivator license as provided under section 12507;

(2) Beginning on the date the body of water on which the smelts are taken is open to ice fishing and ending March 31st annually, use a drop net, a lift net or hook and line to take up to 8 quarts of smelts through man-made openings in the ice while fishing on the ice from specific inland waters designated by the commissioner. A dip net may be used in conjunction with the above methods to assist with the handling and transporting of smelts. A licensee may keep the daily bag limit alive. The daily bag limit established under this subparagraph is for a 24-hour period, beginning at noon on a given day and ending at 11:59 a.m. the following day;

(2-A) In waters naturally free of ice, take smelts from noon to 2:00 a.m. by the use of a dip net in the usual and ordinary way. The commissioner may establish the daily bag limit by rule and a licensee may keep the daily bag limit of smelts alive. The daily bag limit established under this subparagraph is for a 24-hour period, beginning at noon on a given day and ending at 11:59 a.m. the following day. The commissioner may shorten the noon to 2:00 a.m. smelt fishing time frame by rule for enforcement or conservation purposes;

(3) Use artificial light for the purpose of luring smelts to a drop net or a lift net;

(4) Transport or possess at the holder's business facility more than the daily bag limit of smelts provided that the smelts were taken by the license holder in accordance with this section or acquired from a person licensed under this section to deal in live smelts;

(5) Designate others to assist in selling live smelts at the holder's business facility; and

(6) Transport or designate others to transport on the license holder's behalf live smelts in accordance with this subsection.   [PL 2015, c. 301, §36 (AMD).]

B. The holder of a smelt wholesale dealer's license may not:

(1) When engaged in taking, or assisting in taking, live smelts for resale from inland waters, fail to exhibit the license to any agent of the commissioner upon request;

(2) Take multiple bag limits from waters governed by general rules regulating the taking of smelts in order to attain the 8-quart limit of smelts described in paragraph A, subparagraph (2);

(3) Use a seine to take smelts;

(4) Transport or possess at the holder's business facility more than the daily bag limit of smelts at any time unless the smelts were acquired in accordance with paragraph A, subparagraph (4). If the smelts were purchased from another person, the license holder must present a receipted invoice, bill of lading or bill of sale to any agent of the commissioner upon request;

(5) Transport from an inland water source to the licensee's place of business more than 8 quarts of live smelts;

(6) Permit any person to transport live smelts on the license holder's behalf directly from an inland water source;

(7) Attempt to take from the inland waters of the State live smelts for resale using drop nets through the ice unless the license holder marks all holes made in the ice by that license holder for that purpose. The holes must be marked either by evergreen boughs placed around the hole or by suspending at least one strand of fluorescent biodegradable tape at least 3 feet above the ice around the entire perimeter of the hole so that the tape is visible from all sides;

(8) Take smelts unless the holder uses an operable commercially manufactured number 14 fish grader to sort smelts by size during the taking of smelts. The holder shall liberate immediately all undersized smelts alive into the waters from which they were taken. For the purpose of this subparagraph, a commercially manufactured number 14 grader is a grader having a minimum grate size of 14/64 inches and that allows smelts to pass through at least 2 sides and the bottom of the grader. The commissioner may adopt rules to amend the grate size restrictions under this subparagraph if the commissioner determines such rules are necessary for conservation or enforcement purposes;

(9) Possess at that person's place of business any species of fish that may not legally be sold as bait;

(10) Use particles of food or any other type of bait or lure except light to lure smelts to a drop net or a lift net; or

(11) Use a dip net to take smelts unless that dip net meets the requirements under section 10001, subsection 12-A.

Each day a person violates this paragraph that person commits a Class E crime.   [PL 2005, c. 237, §3 (AMD).]

For purposes of this subsection, live smelts are considered in possession of the licensee once the smelts have been removed from the inland waters and placed in a container.

[PL 2015, c. 301, §36 (AMD).]

8.  Effect of revoked or suspended license.  A person whose license to deal in live smelts and baitfish has been revoked or suspended pursuant to section 10902 may not assist another dealer in selling or transporting live smelts and baitfish.

A person who violates this subsection commits a class E crime.

[PL 2003, c. 655, Pt. B, §259 (NEW); PL 2003, c. 655, Pt. B, §422 (AFF).]

9.  Inspection of live smelts and baitfish.  A person licensed under this section who possesses live smelts or baitfish at a fixed place of business shall make those fish available for inspection by a warden or a department fisheries biologist during normal business hours. A person licensed under this section who possesses live smelts or baitfish at a location other than the licensee's fixed place of business shall make those fish available for inspection by a warden or a department fisheries biologist at any time, upon request.

[PL 2003, c. 655, Pt. B, §259 (NEW); PL 2003, c. 655, Pt. B, §422 (AFF).]

9-A.  Record inspection.  Records retained as required in this section must be open for inspection by the commissioner or the commissioner's agent.

[PL 2011, c. 253, §30 (NEW).]

10.  Reports required.  A person licensed under this section must submit a report on forms provided by the department with the following information: name and location, including the town and county of waters fished; date fished; total catch; gear type; and number of nets used. The report must be submitted by May 31st of each year. A person who has not submitted this report may be prohibited from obtaining a license under this section. A person who is prohibited from obtaining a license under this section may submit an appeal to the commissioner.

All data submitted as part of the report are for scientific purposes only and are confidential and not a public record within the meaning of Title 1, chapter 13, subchapter 1, except that the commissioner may disclose data collected under this subsection if that data are released in a form that is statistical or general in nature.

[PL 2005, c. 237, §4 (NEW).]

SECTION HISTORY

PL 2003, c. 655, §B259 (NEW). PL 2003, c. 655, §B422 (AFF). PL 2005, c. 12, §III29 (AMD). PL 2005, c. 237, §§3,4 (AMD). PL 2009, c. 340, §16 (AMD). PL 2011, c. 253, §30 (AMD). PL 2015, c. 298, §9 (AMD). PL 2015, c. 301, §36 (AMD). PL 2017, c. 164, §§19-21 (AMD).