Sometimes something as small as a single word in a law can affect one person’s livelihood. Such is the case for Maine native J. Coburn Drisko, owner of Drisko Lobsters, Inc. in Lincolnville. This past July, the United States Coast Guard informed Drisko that he was in violation of federal regulations by using a foreign-built vessel to transport lobsters in Penobscot Bay. While the Coast Guard’s intervention should have been a simple process of following federal procedures, it has sparked a debate over the definition of fisheries and the role of lobster smacks in the lobstering industry.
The case has reached Washington, D.C., where Maine Sens. Olympia Snowe and Susan Collins have been negotiating on Drisko’s behalf with the United States Customs and Border Protection Agency (CBP). For a lobster smack owner in Maine, this case has grown quickly into a national issue. And at the core of the debate: how to interpret the use of the word `or’ in a federal law.
Drisko first got into trouble in mid-July, when the Coast Guard received a tip that Drisko was using Canadian boats to run his lobster business. According to a federal law, the Jones Act, foreign-built vessels are not allowed to be used for coastwise trade in the United States.
Merchants who use such vessels face a series of harsh penalties, ranging from seizure of the merchandise on the boat to impounding the vessels. In an era of heightened responsibilities for the Coast Guard, the Jones Act is not frequently enforced. Case in point: while Drisko is not the only lobster smack owner in Maine who uses foreign-built boats, he is the only one who is being prosecuted.
“[The Coast Guard] told me I’m in jeopardy of them seizing the boats if I continue to do just what I’m doing,” Drisko said to the press. With no immediate options for recourse, Drisko halted his operations that served the island communities of Vinalhaven, North Haven, Islesboro, Isle au Haut and Matinicus. Every day that Drisko Lobster Inc. was closed, the business stood to lose $10,000 a day. The lobstermen Drisko served were likewise affected by the ruling as Drisko had to stop operating his lobster smack in Penobscot Bay.
While not used by all lobstermen, lobster smacks like Drisko’s are an important part of the island fishing industry. The smack owner travels to a set location, where lobstermen can sell their catch and buy bait or other supplies. This reduces the number of expensive and lengthy trips an island lobsterman would otherwise need to take to the mainland.
Stuart Norman, owner of Three Sons Fishing in Portland, explains how his lobster smack off Cliff Island works. “They sell lobster to me, and I resell them. The lobsters are fresher and have greater value, and the lobstermen don’t have to come to town to get bait and supplies. I bring stuff to them and they bring stuff to me and everybody is happy.”
Following the closure of Drisko’s operations, neither his lobsterman suppliers not his retailers were happy. Shutting down his lobster operations in the peak season was quickly pushing Drisko towards bankruptcy. Then Senators Snowe and Collins learned of his plight. Both Senators worked with CBP, and on July 21, the agency told Drisko that it could file for a reconsideration of the case, meaning a higher level in the CBP will take a look at the case, and evaluate the legality of Drisko’s position. “We would withhold enforcement on the ruling until after the reconsideration,” said Customs and Border Protection spokesman Sue Challis.
Sen. Snowe, Chair of the Senate Commerce Subcommittee on Oceans, Fisheries and the Coast Guard, responded “while I am pleased that Drisko Lobster can, once again, return to operations, I remain concerned that the underlying authority of the Customs and Border Protection Agency to restrict the lawful operations of Maine’s fishermen without clear statutory support will weigh heavy on Maine’s fishing industry.”
The lack of clear statutory support Snowe referred to is the justification for halting Drisko’s operation in the first place. CBP claims Drisko was in violation of the Jones Act by using a foreign-built vessel for coastwise trade. In the legislation, foreign-built vessels can be used in the fishing industry if they are less than five gross tons. This is mainly because only vessels over five gross tons are documented when brought into the United States as a new purchase. The Coast Guard then issues an endorsement for fisheries, coastwise trade or pleasure. Vessels under five gross tons cannot be documented, and therefore does not need to receive an endorsement. “You can’t put an endorsement on a vessel that can’t be documented,” said William Welte.
Cost Difference
Many lobstermen and smack owners have assumed that the tonnage limit permits anyone in the lobstering industry to use a foreign-built boat. It is therefore common to see Canadian-built boats lobstering off the Maine Coast. Most common are Novys, named for Nova Scotia, where they are built. These boats have a high bow and forward wheelhouse which provide more space on the deck and greater protection and durability in rough weather. Some fishermen also prefer Novys and other Canadian boats because they are significantly cheaper and easier to get than American vessels.
“One of the big differences is Canada subsidizes the workers,” said Randy Young of Young Brothers and Co., Inc., a boatbuilding shop in Corea, Maine. “All we get is money sucked outÖ We have to carve $30,000 off the top of every boat built just to pay worker’s comp. That’s before we make a dime.” Those differences add up, creating a significant cost difference between Canadian and American built boats.
“A lot of guys can’t afford to buy boats here,” said Stuart Norman. “They can go to Canada, get a used boat, get a good price, and get it right now.”
Fishermen who do buy Canadian-built boats do so understanding the limitations of the Jones Act. According to regulations, if the foreign-built boat is less than 5 tons, and is used for fisheries, it is legal. Thus Drisko, like other smack owners in Maine, bought and used Canadian vessels to run his smack operation, fully believing he was doing so lawfully.
United States Customs and Border Protection officials disagree. In the case of Drisko, they contend lobster smacks are not part of the fishing industry because merchandise is being transported between ports. Instead, transporting lobsters falls under coastwise trade. The Jones Act does not permit the use of foreign-built vessels to engage in coastwise trade. Phillip Riherd of the Customs Service told the press that in regards to Drisko’s operations, “That’s hauling cargo, as far as we’re concerned.”
William Welte, Drisko’s lawyer, disagrees. He filed for reconsideration of the suit on Aug. 18. Welte believes the Jones Act’s definition of fisheries clears his client of any wrongdoing. “The definition of fisheries includes transporting – just transporting – fish,” he said.
The federal definition Welte is referring to is “fisheries includes processing, storing, transporting (except in foreign commerce), planting, cultivating, catching, taking, or harvesting fish, shellfish, marine animals, pearls, shells, or marine vegetables in the navigable waters of the United States or in the exclusive economic zone.” The shortest word – “or” – is where CBP and Drisko’s team disagree. Welte contends the literal definition permits transporting shellfish without requiring the transporter to have caught the shellfish, too. “Customs interprets it to mean the vessel that catches fish is the one transporting the fish. So there’s a twist there that we’re contending,” said Welte.
Glen Vereb, the Branch Chief in CBP’s office of Rules and Regulations, said that as of Aug. 20 his office had just begun reviewing the case for reconsideration. Vereb stressed the issue with the case now which federal regulations apply to lobster smacks. “That’s what the issue is right now,” he said. “Is it governed by the fishing statute or the Jones Act?”
If the lobster smack industry does fall under the Jones Act, as Welte contends, Vereb does not believe the definition of fisheries in the act includes transporting lobsters. “The word `or’ does not appear before the word `transport,'” Vereb said, implying that fish therefore had to be caught and transported by the same operation. However, Vereb also stressed that his office is still reviewing the arguments for reconsideration, and is not ready to make any conclusions regarding the case. “We don’t know yet – if we reconsider the case and we disagree with his case, we will send a letter informing him of the ruling. If we are under the impression his argument has merit, we will solicit public comment and proceed with the reconsideration.”
For now, Drisko continues to run his lobster smack with his two Canadian vessels while awaiting the final ruling from CBP. Others in the fishing industry are casting an uneasy eye on the proceedings, waiting to see what precedent the government will set. This case will ultimately determine the legal regulations for lobster smacks. Are they part of the fisheries industry, or are they simply coastwise trade? Do they fall under the Jones Act, or are they governed by a fishing statue? Drisko may be the center of this debate, but the ruling will affect the regulations of all lobster smack owners. For now, all they can do is hope for the best. Ultimately, the entire case may come down to a single issue – how the government will interpret the word `or.’