PUBLIC Law, Chapter 527, An Act To Improve the Method of Classifying Shellfish Harvesting Areas and Providing Notification of Changes

An Act To Improve the Method of Classifying Shellfish Harvesting Areas and Providing Notification of Changes

Emergency preamble. Whereas, acts and resolves of the Legislature do not become effective until 90 days after adjournment unless enacted as emergencies; and

Whereas, this legislation addresses emergency rules, which are used by the Commissioner of Marine Resources to manage the status of shellfish resource areas for public health, as this rulemaking is considered cumbersome, time-consuming and often confusing to the public; and

Whereas, this legislation creates a more efficient and easily understood method by which openings and closings of shellfish resource areas are made, which will save considerable staff time; and

Whereas, this legislation will increase the speed at which some closed areas are opened; and

Whereas, this legislation will put shellfish harvesters back to work more quickly after closures; and

Whereas, in the judgment of the Legislature, these facts create an emergency within the meaning of the Constitution of Maine and require the following legislation as immediately necessary for the preservation of the public peace, health and safety; now, therefore,

Be it enacted by the People of the State of Maine as follows:

Sec. 1. 12 MRSA §6076, sub-§2, as enacted by PL 1985, c. 784, §1, is amended to read:

2. Responsibilities. The department shall be is the state agency responsible for implementing the program. The department may adopt rules under section 6172 as may be warranted to provide for adequate protection of the public health.

Sec. 2. 12 MRSA §6172, as amended by PL 2009, c. 528, §3, is further amended to read:

§ 6172. Contaminated or polluted flats

1. Commissioner's powers. The commissioner may examine the coastal waters and the intertidal zone and adopt rules to close classify coastal waters or intertidal zone areas as closed if the commissioner determines that any marine organisms are or may become contaminated or polluted and may classify coastal waters or intertidal areas as open if the commissioner determines that the marine organisms no longer present a risk to public health. The commissioner may adopt or amend rules classify areas through text descriptions and maps as the commissioner determines necessary, setting forth standards for closure of contaminated or polluted areas and for opening areas determined to no longer present a risk to public health, giving consideration to established state water quality standards, the most recently adopted federal sanitation standards , or other state or federal public health standards, the most recent generally accepted research data and known sources of pollution in any area, in a manner to protect the public health and safety while allowing reasonable use of the State's marine organisms.

1-A. Federal waters. The commissioner may adopt rules establishing standards for closing classify an area through text descriptions and maps to close waters under the jurisdiction of the Federal Government to the harvesting of a marine organism that the commissioner determines is or may become contaminated or polluted and to open waters under the jurisdiction of the Federal Government to the harvesting of marine organisms that the commissioner determines no longer present a risk to public health. The commissioner may, in accordance with standards adopted under this subsection, by rule close waters under the jurisdiction of the Federal Government to the harvesting of a marine organism when the commissioner determines the organism is or may become contaminated or polluted. Rules adopted pursuant to this subsection must be in conformance with applicable federal law and regulations. Rules adopted under this subsection are routine technical rules pursuant to Title 5, chapter 375, subchapter II-A.

1-B. Advisory council. Notwithstanding section 6171-A, the advice and consent of the Marine Resources Advisory Council is not required prior to adoption of a rule under this section.

2. Emergency rules. The commissioner may adopt or amend rules under the emergency procedures, if immediate action is necessary to prevent the taking of polluted or contaminated marine organisms.

3. Repeal. The commissioner shall repeal a rule closing an area or waters when the marine organisms are no longer contaminated or polluted or when the waters meet the sanitary standards set forth in any department rules. The commissioner may use emergency regulatory procedures to open areas or waters that have been closed under emergency procedures of this section.

4. Procedure. The procedures of subchapter II shall be used in adopting or amending rules authorized by this section.

5. Private property; right of entry. The commissioner's authority to enter privately owned land or buildings to carry out the purposes of this section is prescribed as follows:

A. The commissioner, upon presentation of credentials, may enter privately owned land at reasonable times with the owner's permission. If entry to the land is denied by the owner, the commissioner may seek a search warrant to inspect the land for sources of pollution under this section. A warrant may not be issued to search a domicile or residential building or ancillary structures; and

B. The commissioner may enter a privately owned domicile, building or structure only with the owner's permission and only in the presence of the owner or the owner's agent.

For the purposes of this subsection, "commissioner" means the Commissioner of Marine Resources or an employee of the department authorized by the commissioner to inspect coastal waters and intertidal zones for sources of pollution.

6. Effective immediately upon signature. The classification of an area as open or closed under this section is effective immediately upon signature by the commissioner or the commissioner's authorized designee.

7. Notification. Notification of the classification of a shellfish area as open or closed and any information concerning the opening or closing of a shellfish area under this section must be placed on the department’s publicly accessible website and must be provided to the municipal office of each municipality in the affected area and to the Bureau of Marine Patrol.

8. Enforcement. Upon notification as described in subsection 7, marine patrol officers shall take action to prevent the taking of shellfish from a closed area, including the embargo of contaminated shellfish under section 6856, subsection 6 and the arrest or summons of any person taking or attempting to take shellfish from an area classified as closed unless that person holds a valid depuration certificate pursuant to section 6856, subsection 3.

Sec. 3. 12 MRSA §6191, sub-§1, as amended by PL 2007, c. 692, §1, is further amended to read:

1. Procedures. In adopting or amending any rule, except as provided in section 6194, the commissioner shall use the procedures required for rulemaking under the Maine Administrative Procedure Act , Title 5, chapter 375, and the additional requirements of this subchapter.

Sec. 4. 12 MRSA §6191, sub-§2, ¶C, as amended by PL 2003, c. 248, §4, is further amended to read:

C. A rule , except a rule authorized under section 6172, may not be adopted or amended without the advice and consent of the advisory council, except as provided in section 6192, subsection 2.

Sec. 5. 12 MRSA §6192, sub-§1, ¶A, as amended by PL 2009, c. 528, §4, is further amended to read:

A. In an emergency adoption of a rule or amendment to a rule relating to the public health and safety, including rules authorized under sections section 6171-A and 6172, prior public notice and hearing is not required.

Sec. 6. 12 MRSA §6192, sub-§3, as amended by PL 2003, c. 248, §5, is further amended to read:

3. Effective period. Any emergency rule is effective only for 90 days, or any lesser period of time specified in the rule. After the expiration of the emergency period, the rule may only be adopted only as provided by section 6191. This subsection does not apply to emergency rules authorized under section 6172, which are effective until repealed.

Sec. 7. 12 MRSA §6192, sub-§4, as amended by PL 2003, c. 248, §5, is further amended to read:

4. Effective date. Except as provided in this subsection, emergency rules become effective immediately upon publication in a newspaper of general circulation in the area of the State affected, provided as long as those rules are submitted to the Attorney General and filed with the Secretary of State as required under the Maine Administrative Procedure Act , Title 5, chapter 375, within the next business day following publication.

Notwithstanding any provisions of the Maine Administrative Procedure Act, an emergency rule authorized by section 6172, subsection 2 or 3 is effective immediately upon signature by the commissioner or the commissioner's authorized designee. Upon signing an emergency rule that closes or opens an area or waters to the taking of marine organisms, the commissioner or the commissioner's authorized designee shall give oral notice of that action to local governmental authorities and shall publish notice of a closure as soon as possible in a newspaper of general circulation in the area of the State affected. Marine patrol officers shall take action to prevent taking of shellfish from a closed area, including the embargo of contaminated shellfish under section 6856, subsection 6 and the arrest of any person violating the emergency rule.

Sec. 8. 12 MRSA §6193, as amended by PL 1999, c. 790, Pt. A, §11, is repealed.

Sec. 9. 12 MRSA §6194, as enacted by PL 2007, c. 692, §2, is repealed.

Sec. 10. 12 MRSA §6621, sub-§§1 and 2, as repealed and replaced by PL 2003, c. 452, Pt. F, §16 and affected by Pt. X, §2, are amended to read:

1. Taking from closed areas. A person may not:

A. Fish for or take shellfish from any area closed by regulation pursuant to section 6172;

B. Fish for or take shellfish from any area closed by regulation pursuant to section 6172 when the person has one or more prior convictions for violating paragraph A;

C. Possess, ship, transport or sell shellfish taken from any area closed by regulation pursuant to section 6172; or

D. Possess, ship, transport or sell shellfish taken from any area closed by regulation pursuant to section 6172 when the person has one or more prior convictions for violating paragraph C.

2. Washing or holding in closed areas. A person may not:

A. Wash, hold or keep shellfish in any area closed by regulation pursuant to section 6172;

B. Wash, hold or keep shellfish in any area closed by regulation pursuant to section 6172 when the person has one or more convictions for violating paragraph A;

C. Possess, ship, transport or sell shellfish washed, held or kept in any area closed by regulation pursuant to section 6172; or

D. Possess, ship, transport or sell shellfish washed, held or kept in any area closed by regulation pursuant to section 6172 when the person has one or more convictions for violating paragraph C.

Emergency clause. In view of the emergency cited in the preamble, this legislation takes effect when approved.

Effective 90 days following adjournment of the 125th Legislature, Second Regular Session, unless otherwise indicated.

SP0586 LD 1721	PUBLIC Law, Chapter 527 Emergency Signed on 2012-03-19 00:00:00.0 - Second Regular Session - 125th Maine Legislature
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