An Act To Improve the Method of Classifying Shellfish Harvesting Areas and Providing Notification of Changes
Maine Legislature, Session 125, LD 1721
Committee: Marine Resources
Sponsors: LANGLEY
Amends: 12 MRSA §6076, 12 MRSA §6172, 12 MRSA §6191, 12 MRSA §6192, 12 MRSA §6193, 12 MRSA §6194, 12 MRSA §6621

Legislative Document 
No. 1721 
S.P. 586 
In Senate, December 29, 2011 
An Act To Improve the Method of Classifying Shellfish Harvesting 
Areas and Providing Notification of Changes 
Submitted by the Department of Marine Resources pursuant to Joint Rule 204. 
Received by the Secretary of the Senate on December 23, 2011.  Referred to the Committee 
on Marine Resources pursuant to Joint Rule 308.2 and ordered printed. 
JOSEPH G. CARLETON, JR. 
Secretary of the Senate 
Presented by Senator LANGLEY of Hancock. 
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. 
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. 
SUMMARY 
The method currently used by the Department of Marine Resources to manage 
contaminated or polluted shellfish resource areas to protect public health is through the 
adoption of emergency rules.  This bill changes the management method to a 
classification by the Commissioner of Marine Resources of areas as open or closed 
through text descriptions and maps provided on the department's website and to affected 
municipalities and the Bureau of Marine Patrol.