DMR Advisory Council Meeting Minutes
June 21, 2006
A meeting of the Department of Marine Resources’ (DMR) Advisory Council (AC) was held on this date at the Department of Human Services Central Offices Conference Room, 442 Civic Center Drive, Augusta. AC members attending this meeting included Dana Rice, Sr. - Chair, Bob Baines, David Pecci, Bill Sutter, Dana Temple, Susan Farady, Scott Tilton, Glenn Libby, David Turner and Al West. Council members Timothy Kief, Vincent Balzano, Mike Danforth and Rod Mitchell were unable to attend. Department staff included Commissioner George Lapointe, Colonel Joe Fessenden, Sarah Cotnoir, Amy Fitzpatrick and L. Churchill. Other attendees included Tim Harper - Southwest Harbor, Charles Gray – Scarborough, Bill Doane – South Portland, Zack Klyver – Bar Harbor Whale Watch Company
1. Welcome
Chair Dana Rice called the meeting to order and welcomed everyone. Tim Harper was introduced and will be sworn in by the next meeting.
2. Approval of minutes (see handout)
Motion: (D. Pecci, A. West) Motion to approve the minutes of the meeting held March 15, 2006; Discussion: None
Motion continued: Unanimous to approve
3. Regulations - Action (see handouts)
Chapter 36.01(A) Herring Regulations, Area 1, 2 & 3 definitions
Commissioner Lapointe gave a brief review. This provides consistency with the line changes in the ASMFC plan.
Motion: (D. Turner, A. West) Motion to approve the rulemaking in Chapter 36.01(A) as written.
Discussion: Does this impact the TAC? Answer from D. Rice was no. B. Sutter asked if the lines make Area 1B larger. Answer: smaller. A. West explained that the line change incorporated Franklin Ledge with Georges Bank where it belongs.
Motion continued: Unanimous to approve
Chapter 36.01(D)(1) Herring Regulations, Spawning Area Restrictions
Comm. Lapointe reviewed the development of these regulations. The ASMFC [Herring Board?] is taking a much more conservative interpretation of this plan, meaning total closure to fishing on all stages of herring during the spawning closures not just stages 4 & 5 or what is written in the plan. If this is passed we plan to contest. The decision to close spawning areas entirely appears punitive as the mortality rate on juvenile herring is extremely low. Yet the ASMFC is supposed to try to be flexible. Maine has enforced the spawning tolerance in the past without problems.
These regulations are consistent with the ASMFC Herring Plan Amendment 2. Massachusetts feels that it should be closed but the public hearing document voted on says otherwise. These are consistent with Amendment 2. The rules do not change for the areas Downeast.
B. Sutter: What is the impact on lobster bait prices?
D. Rice: Given the 0% tolerance there will be less bait available.
D. Turner: This makes it like last year.
T. Harper: How is this enforced?
Col. Fessenden: With the 20% tolerance we take 5-6 totes and count out the fish stages and take a percentage on it. With a zero % tolerance we would use the exact same procedures.
A. West: The spawning closures are usually in differing areas but it is conceivable that we could have all areas closed and no fishing. Comm. Lapointe has worked out a way to hold this off this summer and support it.
B. Sutter: What are the closures?
Comm. Lapointe: Described the default procedures in the existing regulations. If this is not adopted the ASMFC may find us out of compliance in August.
B. Baines: Does this hold things off a year?
Comm. Lapointe: It depends on how quickly they want to act.
D. Rice: The Commissioner is trying hard to work through this.
B. Baines: When others have been found out of compliance it takes a long time to take effect.
Comm. Lapointe: Passing this gives us more time to work on it whether we are successful challenging it or not. If they want to act quickly they can. The objections are a result of the inability of other states to enforce spawning tolerance.
Motion: (A. West, D. Turner) Motion to approve the rulemaking in Chapter 36.10(D) as written.
Discussion: none
Motion continued: Unanimous to approve
Comm. Lapointe: The challenge will be about the technical addendum used, which is not a correct use of procedure; will keep you posted.
D. Turner: There used to be three areas and over the years it has been adjusted.
Chapter 50.02(B) Spiny Dogfish and Coastal Sharks – Spiny Dogfish, Trip Limit
Comm. Lapointe explained that these rules were for consistency with the ASMFC Plan for dogfish.
B. Sutter: What are the goals for the management for dogfish?
Comm. Lapointe: Even though the biomass appears high there are two critical stock components that are low: 1) reduced numbers of large/mature females and 2) absence of pups and therefore the stock is determined to be overfished. The conclusion at the federal level is that the fishery needs rebuilding. Massachusetts and North Carolina have the largest fisheries and therefore why there are two separate time periods in the rules.
B. Sutter: There is a huge population out there, and understand the absence of female, but…
Comm. Lapointe: The dogfish abundance issue has to meet the Magnuson-Stevens targets and the management decisions debate one fish versus another.
B. Sutter: I can’t see rebuilding when there are plenty now.
D. Rice: The numbers may change by the next assessment.
B. Sutter: Why are we doing this?
Comm. Lapointe: This is for compliance with the Commission Plan. We don’t have the fishery here that is in the other member states.
D. Turner: This could be a regulated by catch issue down the road.
Motion: (A. West, T. Turner) Motion to approve the rulemaking in Chapter 50.02(B) as written.
Discussion: none
Motion continued: Unanimous to approve
Chapter 50.01 and 50.10 Spiny Dogfish and Coastal Sharks - “Finning” Prohibited and definitions
Motion: (D. Turner, A. West) Motion to approve the rulemaking in Chapter 50.01&10 as written.
Discussion: none
Motion continued: Unanimous to approve
4. Special License
Captain Jeffrey Black, Bar Harbor Whale Watch Company (BHWWCo), Sunday hauling on Demonstration License
The BHWWCo special license application was presented by Zack Klyver.
Comm. Lapointe: Explained that this is the same type of request requested at the last meeting to allow Sunday hauling for the harvest demonstration license holders. We have two other requests pending.
B. Baines: Are the 10 names listed licensed?
Z. Klyver: 6 currently hold the demonstration license and 4 are in the process to obtain the license.
B. Baines: What is a harvest demonstration license?
Z. Klyver: The listed is regulated by Chapter 110 and persons must initially take the same test as lobster apprentices.
Comm. Lapointe: A few years back persons used to come here for a special license, they did not keep lobsters.
B. Sutter: Some were using their commercial lobster license.
Comm. Lapointe: We can report on the numbers of these licenses at the end of the year.
B. Sutter: What distinguishes these buoys from commercial lobster trap buoys?
Col. Fessenden: Their license has their buoy color the same as the commercial license.
B. Baines: Is there a trap limit? Answer: yes, 20. If there are 10-15 of per harbor on Sunday’s maybe there should be a limit.
Comm. Lapointe to Z. Klyver: How many vessels do you operate?
Z. Klyver: One vessel.
B. Sutter: Can see 10 boats in Portland or Rockland but not Bucks Harbor. Their catch is onboard before they leave the dock.
D. Temple: Why not? What is too many per harbor per day?
B. Baines: For example if this were done in Spruce Head or in a true commercial harbor the 20 traps would get in the way. This is a feel good thing for the lobster industry.
Comm. Lapointe: I would be surprised if any one area could support that many demonstration vessels.
D. Pecci: There are only 117 guides and Captains license in the state. This shouldn’t be a big issue.
Motion: (D. Turner, S. Farady) Motion to approve the Special License for Captain Jeffery Black/Bar Harbor Whale Watch Company.
Discussion: none
Motion continued: Unanimous to approve
Charles Gray, fish traps (See handouts – 4)
Col Fessenden explained that the 2004 groundfish rulemaking changes had an unintended consequence that no longer permitted the use of fish traps as a permissible gear to fish groundfish. This was only realized recently.
Charles Gray presented his request to use fish traps for cod. He would fish only within the 3-mile limit and has obtained his commercial fishing license with crew. He is on a waiting list for his lobster license that could be several years wait. He does not expect to make big money but wants to experiment. He will comply with the whale/gear requirements, groundfish rules, escape vents, bycatch etc.
L. Churchill: Copies of 3 reports on cod/fish traps available in the handouts today. Conditions were described.
G. Libby: What are the federal rules?
Col. Fessenden: Not permissible; the federal permits are limited
Comm. Lapointe: Persons have considered this as a way to save on fuel.
B. Sutter: Isn’t the federal multispecies permit required to fish in state waters?
Col. Fessenden: No. There are gear restrictions; a few have tried this and now more are interested but with the 3 month closure it is limited.
Comm. Lapointe: The Special License allows the exemption from Chapter 34. If this moves forward we would need to change the rules.
D. Turner: No problems with the DMR?
Comm. Lapointe: No.
Motion: (D. Turner, A. West) Motion to approve the Special License for Charles Gray.
Discussion:
B. Sutter: Why does he need a special license?
Col Fessenden explained that the 2004 groundfish rulemaking changes had an unintended consequence that no longer permitted the use of fish traps as a permissible gear to fish groundfish. This was only realized recently.
Charles Gray: Will use lobster buoy colors plus add his commercial license number on an acorn buoy too.
D. Turner: Duration? Answer: July 1 – December 31 and if renewed January 1 – March 31, 2007.
S. Faraday: Support the innovation and note the other reports. Is the logbook information sufficient? The logbook should be compiled into a useful file and made available.
D. Pecci: Why have the fed’s excluded traps?
Comm. Lapointe: They are used in the mid-Atlantic.
Col. Fessenden: Probably just not authorized.
Motion continued: Unanimous to approve
3. Regulations - Action continued (see handouts)
Chapter 25.08(A)(3) Double Tagging in Zone G and Zone F
Comm. Lapointe: We were approached the first of the year about persons fishing more than 49% of their traps in Zone G. We proposed the double tag previously and it was turned down and again we were approached in January. Col. Fessenden, myself and staff concluded that this is the best way to enforce it. IT was controversial before and it is now as you see in the extensive body of comments and issues before us.
Col Fessenden: One major change form the first round of rulemaking is that this has more flexibility by allowing use of a transferable tag.
Comm. Lapointe: Before, if you were moving gear around you would have to bring it ashore first.
B. Sutter: Has the Lobster Advisory Council taken this up?
B. Baines: Yes. AT the March meeting and over the past few years it has been discussed with no consensus. The March meeting was just before the public hearing so we didn’t go through it.
B. Sutter: All zones?
B. Baines: That is one opinion. It wasn’t discussed around the table. There was a briefing by Col. Fessenden and small discussions. All zones would be a different issue. I have much respect for the fishermen. Personally I believe it is the right way to go because there is no other way to enforce the 51/49% law. Otherwise the cost is approximately $40 but if you are going to have 51/49 there is no other way to enforce this. It should be statewide.
S. Tilton: In the summary of comments Zone F opposed and Zone G supported. Reasoning?
Comm. Lapointe: The tendency is with Zone F to go to the southwest and is why you get the splits you see. Regarding statewide, we may come back to this but we’re addressing here the problem have been this year. A similar issue in Zone A and Zone B has resolved itself. This is kind of a pilot project.
B. Baines: There is disagreement coastwide about inshore versus offshore and the LAC is discussing at length the issue of effort reduction. Fishermen have moved offshore in recent years and with more fishermen now there are also more traps. This won’t help that issue. Folks will go fishing down in Zone G and there are plenty more coming. With respect to effort reduction it may not help. But there are discussions coming from the LAC on effort reduction.
Comm. Lapointe: This is about those alleged to not be law abiding. There has been lots of discussion about this. This allows us to better chase those allegations and is the primary issue.
B. Sutter: The gist of the comments is that they are taking ‘our’ lobster or folks are shifting traps. I think there are few who are cheating when Shaftmaster can fish there too so why have a rule for 4-5 people? This should be coastwide and the last time the LAC voted against it.
B. Baines: Correction, Shaftmaster’s boats fish Area 3, not Area 1. Other Area 1 permits may fish.
G. Libby: Where they are crossing over, is it new or traditional areas?
Comm. Lapointe: My sense is that it is traditional.
G. Libby: The Zones made it more difficult?
D. Rice: There are limits as to how much gear they can put there.
Comm. Lapointe: When we testified before the Legislature on the 51/49% law we said it would make big changes.
Motion: (D. Turner, A. Baines) Motion to approve the rulemaking in Chapter 25.08(A)(3) as written.
Discussion:
S. Farady to Comm. Lapointe: Support the Department and enforcement positions and hear B. Baines statewide personal opinion. This has come up and been shot down more than once. This body has discussed that the lobster industry is headed for a new look, for example exit ratios, effort changes and this is a symptom of a larger problem. However this appears piecemeal.
Comm. Lapointe: Yes, this has come up before; as we advance changes in policy through legislation and regulations they tend to down play the parts we haven’t figured out yet. B. Baines and I have discussed this and feel we should think issues through longer and through the ramifications first to better avoid secondary consequences. If there is a wholesale change then we need to do something. Thinking about the broader scale is a good reminder for us all.
B. Baines: Could we attaché a sunset such as one year to test?
Comm. Lapointe: That would be a substantive change, no. If it works well then we should apply this to the other zones and if not then we can remove it.
We will commit to adding this as an agenda item to the December or January Advisory Council meet to review.
D. Rice: If this were to be applied to all zones shouldn’t they have a conversation about this?
B. Baines: Yes
B. Sutter: How long do we have to act?
Col. Fessenden: We need as decision so that if passed we can order the tags and get the word out to be ready by September 1; that is the reason for getting this on the agenda today. It is important to resolve this.
G. Libby: Is 49/51% everywhere and are there cheaters?
Comm. Lapointe: Yes to both questions.
D. Pecci: The difference from the last time this came up is that the tags are now transferable, correct? Answer: Yes
Motion continued:
Affirmative votes: Dana Rice, David Pecci, Bob Baines, Dana Temple, Susan Farady, Scott Tilton, Glenn Libby, David Turner, A. West
Negative votes: Bill Sutter
The motion passed by a majority of affirmative votes.
Chapter 9 HARVESTER: SHELLSTOCK HARVESTING, HANDLING AND SANITATION – Compliance Updates
L. Churchill reviewed the rationale for the added text.
Col Fessenden explained that enforcement tried to be practical, particularly with the mussel practices. The original rule had handling issues adding extra time whereas the industry practice better accommodated the shellfish handling. Enforcement wanted to make sure when persons are on a boat that they are using the harvester rules and when off the boat which rules apply. From a law enforcement perspective this is more practical and there were not a lot of negative issues that came back to us. When Skip Greenlaw was in the business we changed the requirements about taking the shellfish back to the shop before shipping. This will be easier for us and for Amy’s office.
Now, when on a boat they go by harvester rules and before they could use dealer tags on the boat.
B. Sutter: Aquaculturists versus wild harvesters?
S. Tilton: One word in Table 9.07(A) affected the entire industry meaning they were restricted to selling only form their residence unless they were also certified.
A. Fitzpatrick: We acknowledge that this was not intention.
S. Tilton: So now this reads OK. There is no need for someone like me to have a processing plant.
Comm. Lapointe: This was confusing but all parties worked together to fix.
B. Baines: to S. Tilton, re: Sebastian Belle’s comments about harvesters selling to restaurants?
S. Tilton: It was confusing until the changes were made.
Motion: (S. Tilton, A. West) Motion to approve the rulemaking in Chapter 9 as written.
Discussion: none
Motion continued: Unanimous to approve
(A. West had to depart)
Chapter 15 GENERAL SHELLFISH SANITATION REQUIREMENTS
Col. Fessenden: This is mostly clean ups and consistency with the new law changes that went into effect last year to not allow harvesters to sell or shuck. They must sell through a wholesale shop or only from their residence. This was a legislative change about which you may hear complaints.
B. Sutter: Does everything meet the Model Ordinance now?
A. Fitzpatrick: Yes, until the next National Shellfish Sanitation Program Conference next year which meets every other year.
Motion: (D. Turner, B. Sutter) Motion to approve the rulemaking in Chapter 15 as written.
Discussion: none
Motion continued: Unanimous to approve
Chapter 55.04(D) Maine Gillnet Bait Fishing Regulations, New Meadows River restrictions
Col. Fessenden explained that the Department was approached about bait gill nets catching stripers and found 40-50 dead on a number of occasions, and in more than one place. Folks bait gill net for mackerel, pogies and other fish for lobster bait. Enforcement held meetings with industry and came up with proposals to address this issue. There was some controversy. If the nets are hauled every 4 hours to release the stripers they have a much higher survival rate. The area named was used as there are more fishermen in that area.
S. Farady: Sunset?
Col. Fessenden: There was some reluctance to move forward in case the fish didn’t show up.
D. Pecci: The 10-12- inch stripers are showing up early this year. The sunset was for fairness in case they didn’t show up and in a very localized situation.
G. Libby: Who’s going with the stop watch?
Col. Fessenden: We’ll have to check, do a lot of surveillance work, as we can’t afford to put officers in the bushes now. The 4 hours is effective from the enforcement perspective.
B. Baines: the last few year there has been an abundance of striped bass, what is driving this or where’s the problem?
G. Libby: As a conservation issue this is wasteful and bad practice in the industry.
Motion: (D. Turner, D. Pecci) Motion to approve the rulemaking in Chapter 55.04 as written.
Discussion: none
Motion continued:
Affirmative votes: Dana Rice, David Pecci, Bill Sutter, Dana Temple, Susan Farady, Scott Tilton, Glenn Libby, David Turner
Negative votes: Bob Baines
The motion passed by a majority of affirmative votes.
5. Other Business - Councils / Fisheries Issues
Magnuson Stevens Act: Comm. Lapointe explained that his has passed in the US Senate and understands that it is the intention in the House to also pass. Sen. Snowe is a co-sponsor in the Senate. This has been lingering for years but will likely come out as written.
Groundfish: There was a meeting May 30, the first public meeting held to talk about the need for changes. T. Stockwell was in Port Clyde last night and will meet with Portland folks next.
NEFMC: The GARM impacts the 2008 groundfish assessment report. WE got 42 amendments and look how unsuccessful this has been. They meet next in September. We may only have 3 weeks to respond when the next report comes out so we need to discuss options now. At the next meeting they will vote whether to do an amendment that in my opinion needs a top to bottom look of this fishery; want everything on the table. The Council will discuss prioritization. There is a window this summer without any deadlines.
Scallops: NEFMC was on 400 lb permit restrictions but stopped to work on general category issues with the number of participants skyrocketing. The fishermen in Maine sho fish with scallops are around do not want to lose their permits. Some feel all fisheries should got to an ITQ system for the general category and a number of council members are concerned about the lack of flexibility and sent it back for a better make up. Continue to watch this like hawks.
B. Sutter: Is a control date still in place? Answer: Yes
G. Libby: this is the right way to go for us, if and when we have scallops to fish again.
Comm. Lapointe: Need to look at this again with T. Stockwell. Folks are asking about a wide open fishery and we said no, but need provisions to keep it from going out of control.
D. Rice: Few folks were happy with the general category but one thing that bothered me was qualification dates, using 02-04. Many from Maine may not have landings in that time frame but the issue discussed was only whether to vote on it going out for public hearing.
G. Libby: Back to groundfish, we only reached a bout ½ the TAC.
Comm. Lapointe: We would have had 1:4 counting if the data had been out sooner. The entire range versus the Western Gulf of Maine; then the illustration would have been more up to date with the newer data.
G. Libby: …we weren’t at the TAC; and it does not indicate where the fish are…
B. Sutter: On Grand Manan they said the urchin fishery could only sustain 13 fishermen so they put their names in a hat and settled it that way.
Comm. Lapointe: On this side of the border it will take a concerted effort with discussions that include a regional component. T. Stockwell and C. Smith have already started meeting with other regional groups. The legal system of the NEFMC must also respond to this.
B. Sutter: Meetings at the Fishermen’s Forum or the Downeast Plan is about what to accomplish for only 140-160 license holders?
G. Libby: Now there is a Mid-Coast Plan…
Comm. Lapointe: There are many plans out there; the Downeast folks have developed a plan that works for them but have not engaged others. The Downeast plan talks about acquiring permits as currency they need to have. There is the inshore versus offshore issue, such as in Craig Pendleton’s plan that ignored the offshore and it didn’t work. We need to look at the elements of all the various plans to see if there are common elements. Robin Alden asked the Governor how can mills get attention and we can’t? The fisheries have revolving doors versus agreements between folks to gain the attention.
B. Sutter; In Alaska the fed’s take care of the fisheries; not long before Washington deals with Maine the same way.
G. Libby: We need to keep after them.
D. Rice: The Downeast group got involved as if it is not fished we will lose. Persons who bought 30-40 days for $100K lost out.
G. Libby: After the meeting last night with T. Stockwell we agreed to travel to discuss with others in order to gain common ground because that is the only way NMFS will listen.
B. Sutter: The Alaskan crab industry happened because of politics.
T. Harper: Lawsuits…
D. Rice: We need common ground and by having that then we can do something. For example the scallop amendment; the thrust was to narrow it up and rationalize it. If there are a lot who want to get it done it is up to us to make it better.
G. Lapointe: There was an emergency spending bill that awarded 5 million for red tide relief from last years closures. Of that amount, 2 million comes to Maine, and 2 will go to Massachusetts. This is fast tracked with a deadline of how this will be distributed by July 7th. My thoughts are 1) 2/3 of the amount go to folks for compensation for their losses last year in the industry; examples: clam, quahog, aquaculture, dealers and processors; and 2) 1/3 towards work on the infrastructure and programs for when this happens in the future. Use it as a means to bolster the inshore and offshore component of the fishery. Such as, determining if we can depurate for red tide; work that can be done in-house to reduce the impact of future red tide events.
This is similar to the groundfish emergency funds from a few years as ago. How to do this for shellfish is unclear. It must be a logical, fair process. For groundfish we had public meetings and tightened the process after; we had applications and an appeal time. We welcome input on what criteria to use now for shellfish. Due to the Katrina funds fiasco this will be understandably watched like a hawk. It has to be fair and withstand scrutiny.
B. Sutter: Spread the funds based on the landings reports.
G. Libby: What reporting?
Comm. Lapointe: If product is sold to a dealer we have records; if not then there are not records.
G. Libby: We ran into this with limited-entry.
S. Tilton: There were 2 sources for relief for the shellfish harvesters 1) SBA loans and 2) National disaster crop insurance, which was turned down because they claimed that red tide was not weather related…Diggers are hurting and most won’t go after a loan. This was the wrong vehicle. CEI has low interest loans available too.
B. Sutter: What about the funding to run the shellfish program from about 6 months ago?
Comm. Lapointe: That state funding was to fill gaps in seasonal conservation aid positions in the Water Quality and Red Tide Division of the DMR Public Health Program impacted by previous budget cuts.
D. Pecci: Are the feds initiating a federal salt water recreational permit; with fees available?
Comm.Lapointe: Have lost track of what is happening on that at the federal level. The basis for that permit was regional and not designed for the state level. We still need an estimate of catch as required by the Magnuson–Stevens Act and if implemented they will likely have to charge a fee to support the program.
Pending rulemaking noted on the back side of the agenda was reviewed.
B. Baines explained about the new chapter for the vessel safety rules. If it is supported by the US Coast Guard then they need to have an amendment passed by Congress, which won’t happen quickly. Maine is trying to set up its own regulations but the ‘boundary’ line interfered; however, we found that the boundary line can be changed by petition. To be continued.
The next meeting will be on July 19, 2006.
Motion: (D. Turner, D. Pecci), the Council voted to adjourn.
Motion continued: Unanimous to approve
