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An Act To Make Technical Changes to Maine's Marine Resources Laws
Be it enacted by the People of the State of Maine as follows:
Sec. 1. 12 MRSA §6001, sub-§1-A, as enacted by PL 1981, c. 63, is repealed.
Sec. 2.  12 MRSA §6001, sub-§37-B  is enacted to read:
 
37-B.  River herring.     "River herring" means the species Alosa pseudoharengus, commonly called alewife, and Alosa aestivalis, commonly called blueback herring.
Sec. 3. 12 MRSA §6022, sub-§17, as enacted by PL 2011, c. 10, §1, is amended to read:
 
17. Permit banking program.   The commissioner may administer a permit banking program in which the department holds federal limited access fishing permits and distributes the rights associated with those permits to eligible residents of the State with the goal of restoring and preserving access to federally managed fisheries. The commissioner may lease fisheries allocations, as required, to fund the costs associated with the permit banking program and may use funds in excess of those needed to administer the program to provide assistance to groundfish sectors consistent with the goals of the program.
Sec. 4. 12 MRSA §6030, sub-§2, as amended by PL 2003, c. 520, §1, is repealed.
Sec. 5.  12 MRSA §6032-A  is enacted to read:
§ 6032-A. Marine Recreation Fishing Conservation and Management Fund
 
1.  Fund established.     The Marine Recreation Fishing Conservation and Management Fund, referred to in this section as "the fund," is established within the department. The commissioner may receive on behalf of the fund funds from any source. All money received into the fund must be used for the purposes of the fund under subsection 2. Unexpended balances in the fund at the end of the fiscal year do not lapse but must be carried forward to the next fiscal year to be used for the purposes of the fund. Any interest earned on the money in the fund must be credited to the fund.
 
2.  Uses of fund.     The commissioner may authorize the expenditure of money from the fund for research and conservation efforts related to the saltwater recreational fishery.
Sec. 6. 12 MRSA §6072-D, sub-§5, as enacted by PL 2003, c. 660, Pt. A, §16, is repealed.
Sec. 7. 12 MRSA §6078-A, sub-§5, as enacted by PL 2003, c. 247, §19, is repealed.
Sec. 8. 12 MRSA §6121, sub-§1, as repealed and replaced by PL 1983, c. 388, §1, is amended to read:
 
1. Commissioner's authority.   In order to conserve, develop or restore anadromous fish resources, the commissioner may require a fishway to be erected, maintained, repaired or altered by the owners, lessors or other persons in control of any dam or other artificial obstruction within coastal waters frequented by alewivesriver herring, shad, salmon, sturgeon or other anadromous fish species.
Sec. 9. 12 MRSA §6131, as amended by PL 2009, c. 17, §§1 to 4, is further amended to read:
§ 6131.River herring fishing rights
The commissioner is authorized to develop, manage or lease alewiferiver herring fishing rights as follows.
 
1. River herring rights.   The commissioner shall grant the right, exclusive or otherwise, to take alewivesriver herring to any municipality entitled to those rights on January 1, 1974 and may grant the right to take alewivesriver herring to any other municipality provided:
 
A. Any municipality that has had the right to take alewivesriver herring, exclusive or otherwise, or is granted that right by the commissioner, shall take action through its legislative body and file a copy of this action with the commissioner prior to April 20th or lose that right for the remaining part of that year;
 
B.  Municipal rights that are not exercised for 3 consecutive years lapse;
 
C. At its annual meeting the municipality may determine by vote:
 
(1) Whether alewiferiver herring fishing will be operated by the municipality through the municipal officers or a committee; and
 
(2) Whether the municipal rights to take alewivesriver herring will be sold by the municipal officers or committee; and
 
D. Harvesting plans shallmust be developed as follows.
 
(1) Any municipality engaged in harvesting alewivesriver herring shall submit a written harvesting plan to the commissioner prior to April 20th of each calendar year. All harvesting plans shallmust set forth in detail the exact conditions under which alewivesriver herring may be taken, all in accordance with good conservation practices.
 
(2) The commissioner, after consultation with the appropriate municipal officers, shall approve or modify the harvesting plan as he deemsthe commissioner determines necessary for the conservation of alewivesriver herring and other anadromous fish, and shall file a copy of the approved plan with the clerk of the municipality.
 
2. Limitations.   The following limitations apply to any grant.
 
A.  It is unlawful to take alewivesriver herring from 6 a.m. each Thursday morning until 6 a.m. Sunday morning. Municipalities that make other provisions for escape of spawning alewives, whichriver herring that are approved by the commissioner, are exempt from this limit.
 
B.  It shall beis unlawful for any municipality or purchaser or lessee of the municipal right to take alewivesriver herring in any manner except as provided in the approved alewiferiver herring harvesting plan.
 
3. Closed period in rivers and streams not under lease agreement.   In any river or stream not managed under a lease agreement, there is a 72-hour closed period on the taking of alewivesriver herring and obstruction of the watercourse to allow the free passage of fish from 6 a.m. on Thursday to 6 a.m. the following Sunday.
 
4. Violation of harvesting plan.   If the commissioner determines after investigation that the municipality is not following its alewiferiver herring harvesting plan, hethe commissioner shall notify the municipality. Any municipality whichthat fails to take corrective action within 48 hours of notification shall loseloses its alewiferiver herring fishing privilege for that calendar year. Upon further notification by the commissioner of loss of alewiferiver herring fishing privileges, the municipality or its agents shall cease all fishing activity and immediately remove all traps, weirs, seines or other alewiferiver herring fishing gear from their alewiferiver herring waters.
 
5. Leasing of rights.   The commissioner:
 
A. When the commissioner decides to manage or lease any alewiferiver herring fishing rights wherewhen a municipality has had those rights and has failed to act as provided in subsection 1, shall so notify the clerk of the municipality in writing. After the notice, the commissioner may lease any of those rights to any person, as the commissioner determines is in the best interest of the State. All leases must be in writing and signed by the commissioner and the lessee and must set forth in detail the exact conditions under which the alewivesriver herring may be taken, all in accordance with good conservation practices; and
 
B. May manage or lease alewiferiver herring fishing rights in any river or stream where a municipality does not have those rights. The commissioner may lease any of those rights to any person, as the commissioner determines is in the best interest of the State. All leases must be in writing and approved and signed by the commissioner and the lessee and must set forth in detail the exact conditions under which the alewivesriver herring may be taken, all in accordance with good conservation practices.
 
6. Violation of terms.   It shall beis unlawful for any person holding such a lease to violate any of its terms or to cause the same to be done.
 
7. Molesting equipment.   It shall beis unlawful to molest the fishing equipment of any lease holder or to interfere with the fishing rights granted by the lease.
 
8. Migratory Fish Fund.   All fees received by the commissioner from alewiferiver herring leasing rights are allocated to the Migratory Fish Fund, as established. Expenditures from the Migratory Fish Fund must be made:
 
A.  To build fishways for alewivesriver herring and other migratory fish;
 
B.  For construction of other facilities for improving the environment of alewivesriver herring and other migratory fish;
 
C.  For general propagation and conservation of alewivesriver herring and other migratory fish;
 
D.  For research to enhance the fishing industry based on alewivesriver herring and other migratory fish; and
 
E. For management measures required to maintain or enhance alewiferiver herring populations or populations of other migratory fish.
 
The Migratory Fish Fund does not lapse.
Sec. 10. 12 MRSA §6134, as repealed and replaced by PL 2007, c. 587, §1, is amended to read:
§ 6134.River herring passage; fishways on the St. Croix River
This section governs the passage of alewivesriver herring on the Woodland Dam and the Grand Falls Dam located on the St. Croix River.
 
1. Woodland Dam.   By May 1, 2008, the commissioner and the Commissioner of Inland Fisheries and Wildlife shall ensure that the fishway on the Woodland Dam is configured or operated in a manner that allows the passage of alewivesriver herring.
 
2. Grand Falls Dam.   The commissioner and the Commissioner of Inland Fisheries and Wildlife shall ensure that the fishway on the Grand Falls Dam is configured or operated in a manner that prevents the passage of alewivesriver herring.
Sec. 11. 12 MRSA §6136, sub-§5, as enacted by PL 2005, c. 641, §1, is amended to read:
 
5. Amendment and termination of trust.   The department shall file a reportmake recommendations as follows.
 
A.   The department shall report to the Legislature on a biennial basis concerning the activities of the trust.
 
B.  In the event the department determines that the provisions of the trust should be amended, the department shall make appropriate recommendations to the Legislature in its biennial report.
 
C.  The department may recommend in its biennial report that the trust be terminated if termination is determined to be appropriate. In the event that the Legislature terminates the trust, the principal and operating funds must be disbursed in a manner consistent with the purpose of the trust.
Sec. 12. 12 MRSA §6141, sub-§5, as amended by PL 1987, c. 694, §2, is repealed.
Sec. 13. 12 MRSA §6171, sub-§5, ¶B, as enacted by PL 2007, c. 574, §1, is amended to read:
 
B. If the commissioner determines that for biological reasons a rule adopted under this section must take effect prior to final adoption under paragraph A, the commissioner may adopt the rule as a routine technical rule pursuant to Title 5, chapter 375, subchapter 2-A. A rule adopted under this paragraph is effective until 90 days after the adjournment of the next regular session of the Legislature. Rules adopted pursuant to this paragraph must also be submitted to the Legislature under paragraph A. The commissioner may not adopt rules under Title 5, section 8054 pursuant to this paragraph.
 
This paragraph is repealed July 31, 2012.
Sec. 14. 12 MRSA §6302-A, sub-§1, as amended by PL 2011, c. 266, Pt. A, §2, is further amended to read:
 
1. Tribal exemption; commercial harvesting licenses.   A member of the Passamaquoddy Tribe or Penobscot Nation who is a resident of the State is not required to hold a state license or permit issued under section 6421, 6501, 6502-A, 6505-A, 6505-C, 6535, 6601, 6602, 6701, 6702, 6703, 6731, 6745, 6746, 6748, 6748-A, 6748-D, 6751, 6803 or, 6804 or 6808 to conduct activities authorized under the state license or permit if that member holds a valid license issued by the tribe or nation to conduct the activities authorized under the state license or permit. A member of the Passamaquoddy Tribe or Penobscot Nation issued a tribal license pursuant to this subsection to conduct activities is subject to all laws and rules applicable to a person who holds a state license or permit to conduct those activities and to all the provisions of chapter 625, except that the member of the tribe or nation:
 
A. May utilize lobster traps tagged with trap tags issued by the tribe or nation in a manner consistent with trap tags issued pursuant to section 6431-B. A member of the tribe or nation is not required to pay trap tag fees under section 6431-B if the tribe or nation issues that member trap tags;
 
B. May utilize elver fishing gear tagged with elver gear tags issued by the tribe or nation in a manner consistent with tags issued pursuant to section 6505-B. A member of the tribe or nation is not required to pay elver fishing gear fees under section 6505-B if the tribe or nation issues that member elver fishing gear tags; and
 
C. Is not required to hold a state shellfish license issued under section 6601 to obtain a municipal shellfish license pursuant to section 6671.
Sec. 15. 12 MRSA §6374, sub-§2, as enacted by PL 2011, c. 311, §4, is amended to read:
 
2. Hearing.   A hearing requested under subsection 1 must be held within 1030 business days after receipt by the commissioner of a request for hearing except that a hearing may be held more than 1030 business days after the request if the delay is requested by the person requesting the hearing. The hearing must be held in accordance with the Maine Administrative Procedure Act, except that:
 
A. Notwithstanding Title 5, section 9057, issues of the hearing are limited to whether the person requesting the hearing had a license and whether that person committed a violation of marine resources law; and
 
B. Notwithstanding Title 5, section 9061, the decision of the presiding officer under Title 5, section 9062 must be made not more than 10 business days after completion of the hearing.
Sec. 16. 12 MRSA §6501, sub-§6, as amended by PL 2011, c. 266, Pt. A, §16, is further amended to read:
 
6. Definition.   For the purposes of this chapter, "fish" means all marine finfish except Atlantic herring, Atlantic menhaden, whiting, spiny dogfish, alewiferiver herring, Atlantic mackerel, blueback herring, squid, butterfish, scup, black sea bass, smelt and shad. For the purposes of this chapter, "fish" also means all other marine organisms, except lobsters, crabs, sea urchins, shellfish, scallops, marine worms, elvers, sea cucumbers, eels, shrimp or seaweed.
Sec. 17. 12 MRSA §6502-A, sub-§1, as enacted by PL 2009, c. 527, §2, is amended to read:
 
1. Definition.   As used in this section, "pelagic or anadromous fish" means Atlantic herring, Atlantic menhaden, whiting, spiny dogfish, alewiferiver herring, Atlantic mackerel, blueback herring, squid, butterfish, scup, black sea bass, smelt and shad.
Sec. 18. 12 MRSA §6502-A, sub-§4, as enacted by PL 2009, c. 527, §2, is amended to read:
 
4. Exemption.   The licensing requirement under subsection 2 does not apply to a person who fishes for, takes, possesses or transports any pelagic or anadromous fish that have been taken by speargun, harpoon, minnow trap, hand dip net or hook and line and are only for personal use.
Sec. 19. 12 MRSA §6553-A, as enacted by PL 1983, c. 830, is amended to read:
§ 6553-A.Implements and devices in Washington County waters
Between May 1st and December 1st of each year, it shall beis unlawful to set or use any device, such as fish spawn, grapnel, spear, trawl, weir, gaff, seine, gill net, trap or set line on the waters of the Pleasant River and its tributaries in Columbia Falls and Addison, in Washington County, above Maine River Bridge, so-called, in Addison, and during that closed period noa person may not have in histhat person's possession any grapnel, trawl, weir, seine, gill net, trap or set line on the waters of the Pleasant River or its tributaries within those boundaries. This section does not apply to the taking of eels by spear from those waters during the month of November annually. This section does not apply to the taking of alewivesriver herring from those waters as authorized by the general law or by vote of the Town of Columbia Falls. Any equipment used in violation of this section shallmust be confiscated by the commissioner, after final adjudication of any charge brought under this section.
Sec. 20. 12 MRSA §6575-C, sub-§2, as amended by PL 2003, c. 452, Pt. F, §13 and affected by Pt. X, §2, is further amended to read:
 
2. River herring traps.   A person may not fish for or take elvers within 50 feet of a licensed alewiferiver herring trap.
Sec. 21. 12 MRSA §6672, as enacted by PL 1977, c. 661, §5, is repealed.
Sec. 22. 12 MRSA §6731-A, sub-§6, as enacted by PL 2003, c. 593, §2, is amended to read:
 
6. Stock assessment.   The department shall conduct stock assessments of the mahogany quahog resource beginning no later than January 1, 2005. The department shall report biennially to the joint standing committee of the Legislature having jurisdiction over marine resources matters on the progress of the stock assessment and the status of the Mahogany Quahog Monitoring Fund starting on January 1, 2006.
Sec. 23. 12 MRSA §6749-N, last ¶, as amended by PL 2001, c. 327, §10, is repealed.
Sec. 24. 12 MRSA §6851, sub-§2, ¶A, as amended by PL 1999, c. 491, §6 and affected by §9, is further amended to read:
 
A. Within or beyond the state limits, buy, sell, process, ship or transport any marine species or their parts, except lobsters,and sea urchins and shrimp purchased directly from harvesters;
Sec. 25. 12 MRSA §6851, sub-§2-D, as amended by PL 2009, c. 561, §31, is further amended to read:
 
2-D. Wholesale seafood license with shrimp permit.   At the request of the applicant, the commissioner shall issue a wholesale seafood license with a shrimp permit. A person holding a wholesale seafood license with a shrimp permit may engage in all of the activities in subsection 2 and, may buy,shrimp from harvesters and may sell, process, ship or transport shrimp.
Sec. 26. 12 MRSA §6851, sub-§3, as amended by PL 1991, c. 523, §3, is further amended to read:
 
3. Exceptions.   This section does not apply to smoked herring or alewivesriver herring.
Sec. 27. 12 MRSA §6955, as enacted by PL 1985, c. 211, is amended to read:
§ 6955.Fishing in waters of Union River Bay and the lower Union River
It is unlawful to fish with any type of net, fish trap or weir from April 15th to August 1st in the tidal waters of Union River Bay and the lower Union River north of a line drawn from the southernmost tip of Newbury Neck in the Town of Surry and extended eastward to the southernmost tip of Oak Point in the Town of Trenton. The closed area shall extendextends northward to the downstream side of the Bangor Hydropower Company dam in the City of Ellsworth. Fishing for eels or smelts by means of hand dip nets, fyke nets or baited eel traps shall beis exempt from this section. The taking of alewivesriver herring under the provisions of section 6131, subsection 5, shall beis exempt from this section.
Sec. 28. 12 MRSA §6977, as enacted by PL 2003, c. 573, §1, is repealed.
 
SUMMARY
This bill eliminates the definition of "alewives," which included both alewives and blueback herring, in the marine resources laws and provides instead a definition of "river herring," which includes both alewives and blueback herring. It replaces the term "alewife" with "river herring" throughout the marine resources laws.
It expands the allowable uses of the funds collected through the leasing of fisheries allocations held in the permit banking program beyond the administration of the program to include providing assistance to the groundfishing industry, consistent with the goals of the program.
It eliminates a number of reports to the Legislature, including:
1. A financial report on the Department of Marine Resources Educational Fund;
2. A financial report on the Aquaculture Management Fund;
3. A financial report on the Aquaculture Monitoring, Research and Development Fund;
4. A report on the activities of the Maine Coast Environmental Trust Fund;
5. A report on the lobster research program within the Department of Marine Resources, Bureau of Resource Management;
6. A report on the stock status of mahogany quahogs and a financial report on the status of the Mahogany Quahog Monitoring Fund;
7. A report on the quantity and type of sea urchin licenses sold in each zone in each year; and
8. A report on the status of all current and planned programs, activities and rules of the department pertaining to the conservation or management of state endangered or state threatened marine species.
It eliminates the repeal of a provision that allows the Department of Marine Resources to adopt certain rules as routine technical rules, rather than as major substantive rules.
It provides that a member of the Passamaquoddy Tribe or Penobscot Nation who is a resident of this State is not required to hold a state license to use a boat for dragging for the harvesting of surf clams or fish for or take green crabs or possess, ship or sell green crabs if that member holds a valid license issued by the tribe or nation to conduct those activities.
It lengthens the time frame by which a hearing requested under the administrative suspension process must be provided from 10 days to 30 days.
It adds taking by hand dip net to the allowable methods of taking for which an individual does not need to obtain a commercial pelagic and anadromous fish license, as long as the fish taken are for personal use.
It eliminates the green crab fencing program.
It establishes the Marine Recreation Fishing Conservation and Management Fund to be used for research and conservation efforts related to the saltwater recreational fishery.
Currently, the holder of a wholesale seafood license is not allowed to buy, sell, ship or transport shrimp unless that person also holds a shrimp permit. This bill allows a holder of a wholesale seafood license to buy, sell, ship or transport shrimp, except for shrimp purchased directly from a harvester, unless the person also holds a shrimp permit.