North Carolina § 143B-289 - 52. Marine Fisheries Commission - powers and duties.

§ 143B-289. 52. Marine Fisheries Commission - powers and duties.

The Marine Fisheries Commission shall adopt rules to be followed in the management, protection, preservation, and enhancement of the marine and estuarine resources within its jurisdiction, as described in G.S. 113-132, including commercial and sports fisheries resources. The Marine Fisheries Commission shall have the power and duty: To authorize, license, regulate, prohibit, prescribe, or restrict all forms of marine and estuarine resources in coastal fishing waters with respect to: Time, place, character, or dimensions of any methods or equipment that may be employed in taking fish. Seasons for taking fish. Size limits on and maximum quantities of fish that may be taken, possessed, bailed to another, transported, bought, sold, or given away. To provide fair regulation of commercial and recreational fishing groups in the interest of the public. To adopt rules and take all steps necessary to develop and improve mariculture, including the cultivation, harvesting, and marketing of shellfish and other marine resources in the State, involving the use of public grounds and private beds as provided in G.S. 113-201. To close areas of public bottoms under coastal fishing waters for such time as may be necessary in any program of propagation of shellfish as provided in G.S. 113-204. In the interest of conservation of the marine and estuarine resources of the State, to institute an action in the superior court to contest the claim of title or claimed right of fishery in any navigable waters of the State registered with the Department as provided in G.S. 113-206(d). To make reciprocal agreements with other jurisdictions respecting any of the matters governed in this Subchapter as provided by G.S. 113-223. To adopt relevant provisions of federal laws and regulations as State rules pursuant to G.S. 113-228. To delegate to the Fisheries Director the authority by proclamation to suspend or implement, in whole or in part, a particular rule of the Commission that may be affected by variable conditions as provided in G.S. 113-221.1. To comment on and otherwise participate in the determination of permit applications received by State agencies that may have an effect on the marine and estuarine resources of the State. To adopt Fishery Management Plans as provided in G.S. 113-182.1, to establish a Priority List to determine the order in which Fishery Management Plans are developed, to establish a Schedule for the development and adoption of each Fishery Management Plan, and to establish guidance criteria as to the contents of Fishery Management Plans. To approve Coastal Habitat Protection Plans as provided in G.S. 143B-279.8. Except as may otherwise be provided, to make the final agency decision in all contested cases involving matters within the jurisdiction of the Commission. To adopt rules to define fishing gear as either recreational gear or commercial gear. The Marine Fisheries Commission shall have the power and duty to establish standards and adopt rules: To implement the provisions of Subchapter IV of Chapter 113 as provided in G.S. 113-134. To manage the disposition of confiscated property as set forth in G.S. 113-137. To govern all license requirements prescribed in Article 14A of Chapter 113 of the General Statutes. To regulate the importation and exportation of fish, and equipment that may be used in taking or processing fish, as necessary to enhance the conservation of marine and estuarine resources of the State as provided in G.S. 113-170. To regulate the possession, transportation, and disposition of seafood, as provided in G.S. 113-170.4. To regulate the disposition of the young of edible fish, as provided by G.S. 113-185. To manage the leasing of public grounds for mariculture, including oysters and clam production, as provided in G.S. 113-202. To govern the utilization of private fisheries, as provided in G.S. 113-205. To impose further restrictions upon the throwing of fish offal in any coastal fishing waters, as provided in G.S. 113-265. To regulate the location and utilization of artificial reefs in coastal waters. To regulate the placement of nets and other sports or commercial fishing apparatus in coastal fishing waters with regard to navigational or recreational safety as well as from a conservation standpoint. The Commission is authorized to authorize, license, prohibit, prescribe, or restrict: The opening and closing of coastal fishing waters, except as to inland game fish, whether entirely or only as to the taking of particular classes of fish, use of particular equipment, or as to other activities. The possession, cultivation, transportation, importation, exportation, sale, purchase, acquisition, and disposition of all marine and estuarine resources and all related equipment, implements, vessels, and conveyances as necessary to carry out its duties. The Commission may adopt rules required by the federal government for grants-in-aid for coastal resource purposes that may be made available to the State by the federal government. This section is to be liberally construed in order that the State and its citizens may benefit from federal grants-in-aid. The Commission may regulate participation in a fishery that is subject to a federal fishery management plan if that plan imposes a quota on the State for the harvest or landing of fish in the fishery. The Commission may use any additional criteria aside from holding a Standard Commercial Fishing License to develop limited-entry fisheries. The Commission may establish a fee for each license established pursuant to this subsection in an amount that does not exceed five hundred dollars ($500.00). To ensure an orderly transition from one permit year to the next, the Division may issue a permit prior to July 1 of the permit year for which the permit is valid. Revenue that the Division receives for the issuance of a permit prior to the beginning of a permit year shall not revert at the end of the fiscal year in which the revenue is received and shall be credited and available to the Division for the permit year in which the permit is valid. The Commission may adopt rules to implement or comply with a fishery management plan adopted by the Atlantic States Marine Fisheries Commission or adopted by the United States Secretary of Commerce pursuant to the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. § 1801, et seq. Notwithstanding G.S. 150B-21.1(a), the Commission may adopt temporary rules under this subsection at any time within six months of the adoption or amendment of a fishery management plan or the notification of a change in management measures needed to remain in compliance with a fishery management plan. A supermajority of the Commission shall be six members. A supermajority shall be necessary to override recommendations from the Division of Marine Fisheries regarding measures needed to end overfishing or to rebuild overfished stocks. The Commission shall adopt rules as provided in this Chapter. All rules adopted by the Commission shall be enforced by the Department of Environmental Quality. As a quasi-judicial agency, the Commission, in accordance with Article IV, Section 3 of the Constitution of North Carolina, has those judicial powers reasonably necessary to accomplish the purposes for which it was created. Social security numbers and identifying information obtained by the Commission or the Division of Marine Fisheries shall be treated as provided in G.S. 132-1.10. For purposes of this subsection, "identifying information" also includes a person's mailing address, residence address, e-mail address, Commission-issued customer identification number, date of birth, and telephone number. The Commission may adopt rules to exempt individuals who participate in organized fishing events held in coastal or joint fishing waters from recreational fishing license requirements for the specified time and place of the event when the purpose of the event is consistent with the conservation objectives of the Commission. History (1997-400, ss. 2.1, 2.2; 1997-443, s. 11A.123; 1998-217, s. 18(a); 1998-225, ss. 1.3, 1.4, 1.5; 2001-474, s. 32; 2003-154, s. 3; 2004-187, ss. 7, 8; 2006-255, ss. 11.2, 12; 2012-190, s. 5; 2012-200, s. 17; 2013-360, ss. 14.8(v), 14.8(w); 2015-241, s. 14.30(u); 2017-10, s. 2.1(b).) Senator Jean Preston Marine Oyster Sanctuary Program. - Session Laws 2014-120, s. 44(a)-(c), as amended by Session Laws 2015-241, s. 14.9, provides: "(a) It is the intent of the General Assembly to enhance shellfish habitats within the Albemarle and Pamlico Sounds and their tributaries to benefit fisheries, water quality, and the economy. This will be achieved through the establishment of a network of oyster sanctuaries, harvestable enhancement sites, and coordinated support for the development of shellfish aquaculture. The network of oyster sanctuaries is to be named in honor of Senator Jean Preston and shall be called the 'Senator Jean Preston Oyster Sanctuary Network'. "(b) The Division of Marine Fisheries of the Department of Environment and Natural Resources shall develop a plan to construct and manage additional oyster habitats. The new sanctuaries, along with selected existing oyster sanctuaries, shall be included in the Senator Jean Preston Oyster Sanctuary Network. The plan shall include the following components: "(1) Location and delineation of oyster sanctuaries. - The plan should include locations for sanctuary network components that minimize the impact on commercial trawling. The location of sanctuaries shall take into account connectivity to existing oyster sanctuaries and proposed oyster enhancement sites. New oyster sanctuaries shall be designed to provide hook-and-line fishing while allowing the development of complex fish habitats and brood-stock oysters that will enhance recruitment in the surrounding reefs. The plan should outline a 10-year development project to accomplish the expansion. "(2) Repealed by Session Laws 2015-241, s. 14.9, effective July 1, 2015. "(3) Enhancement of oyster habitat restoration. - The General Assembly finds that the lack of a reliable State-based supply of oyster seed and inadequate funding for cultch planting are limitations to the expansion of oyster harvesting and the restoration of wild oyster habitat in North Carolina. Therefore, the plan should include the following: "a. Provisions and recommendations to facilitate the availability of oyster seed produced in North Carolina for wild oyster habitat restoration projects as well as oyster aquaculture and to reduce potential negative impacts from importation of non-native oyster seed. "b. Plans, where feasible, for public-private partnerships for State-based production of viable oyster seed through the creation of one or more production hatcheries and recommendations for increased support of the existing research hatchery at UNC-Wilmington. "c. Plans and cost estimates for an expansion of cultch planting in suitable areas of the State's coastal waters in order to expand areas suitable for development of wild oyster habitat. "(4) Economic relief. - The plan should consider a waiver of application fees and yearly rental fees for new shellfish leases for an established period of time to further promote and support shellfish aquaculture in North Carolina. The new leasing fee waiver program should include measures to discourage speculation and target persons with a genuine interest in starting a shellfish aquaculture business, such as a requirement that the lease be nontransferable for a five-year period. "(5) Outreach. - The plan should include outreach and education that promotes, whenever possible, public-private partnerships utilizing the Sea Grant College Program, local colleges, and other nongovernmental organizations to (i) encourage shellfish aquaculture and provide technical assistance to broaden cost-effective technologies available to leaseholders; (ii) encourage best management practices to leaseholders; and (iii) inform fishermen and the public on the benefits provided by the Senator Jean Preston Oyster Sanctuary Network. "(6) Monitoring. - The plan should include a monitoring plan designed to (i) determine the success of oyster reef construction and (ii) evaluate the cost benefit of the oyster sanctuary network and harvestable enhancement sites. "(7) Funding. - The plan should include a request for appropriations sufficient for Division staff to expand oyster restoration and monitoring activities for 10 years. The plan should provide that, whenever possible, public-private partnerships are employed to meet the construction, seeding, and outreach requirements of the plan. "(8) Recommendations. - The plan shall include recommendations for statutory or regulatory changes needed to expedite the expansion of shellfish restoration and harvesting in order to improve water quality, restore ecological habitats, provide enhanced recreational and commercial fishing opportunities, and expand the coastal economy. "(9) No funding for sanctuaries in closed areas. - The plan shall provide that no funding or other resources shall be available in water bodies where a moratorium or other legal prohibition on shellfish leasing under Article 16 of Chapter 113 of the General Statutes is currently in effect. This subdivision does not apply to leasing moratoria imposed because the area is closed to shellfish harvesting or recommended for closure by the State Health Director due to pollution. "(c) No later than March 1, 2016, the Department of Environment and Natural Resources shall report to the Chairs of the House of Representatives Appropriations Committee on Agriculture and Natural and Economic Resources, the Senate Appropriations Committee on Natural and Economic Resources, and the Fiscal Research Division regarding its implementation of this section and its recommended plan." Editor's Note. - Session Laws 1997-400, s. 5.5, provides that the Marine Fisheries Commission shall adopt a Fishery Management Plan for the blue crab fishery in accordance with this section, as enacted by s. 2.1 of the act, and G.S. 113-182.1 , as enacted by s. 3.4 of the act, no later than January 1, 1999. Session Laws 1997-400, s. 6.10, provides that, unless otherwise expressly provided, every agency to which the act applies shall adopt rules to implement the provisions of that act only in accordance with the provisions of Chapter 150B of the General Statutes, that the act constitutes a recent act of the General Assembly within the meaning of G.S. 150B-21.1 , that every agency to which the act applies that is authorized to adopt rules to implement the provisions of the act may adopt temporary rules to implement the provisions of the act, and that s. 6.10 of that act shall continue in effect until all rules necessary to implement the provisions of the act have become effective as either temporary rules or permanent rules. Session Laws 1998-225, s. 5.3, provides: "Unless otherwise expressly provided, every agency to which this act applies shall adopt rules to implement the provisions of this act only in accordance with the provisions of Chapter 150B of the General Statutes. This act constitutes a recent act of the General Assembly within the meaning of G.S. 150B-21.1 . Every agency to which this act applies that is authorized to adopt rules to implement the provisions of this act may adopt temporary rules to implement the provisions of this act. This section shall continue in effect until all rules necessary to implement the provisions of this act have become effective as either temporary rules or permanent rules." Session Laws 2010-145, s. 1, provides: "The Marine Fisheries Commission shall adopt rules pursuant to and consistent with G.S. 113-171 , as amended by Section 2 of this act, and G.S. 143B-289.52 for the suspension, revocation, and reissuance of marine resources licenses and permits issued under Articles 14A, 14B, and 25A of Chapter 113 of the General Statutes. Rules adopted pursuant to this section shall not become effective prior to October 1, 2012. In adopting rules pursuant to this section, the Commission shall consider all of the following: "(1) Whether the rules should differentiate between minor and major violations. "(2) How to define minor and major violations. "(3) How service of revocation could be made more efficient. "(4) How the rules should treat violations related to recreational fishing licenses and permits. "(5) Whether violations related to littering or assault on a marine patrol inspector should be treated as grounds for suspension or revocation. "(6) Whether suspension and revocation provisions should be strengthened in cases of harvesting shellfish from polluted waters." Session Laws 2013-360, s. 14.11(a), (b), provides: "(a) The Director of the Division of Marine Fisheries of the Department of Environment and Natural Resources and the Director of the Wildlife Resources Commission shall develop and implement an agreement that includes at least all of the following provisions: "(1) Provisions to authorize the Division of Marine Fisheries marine patrol to perform any needed boating safety inspection. "(2) To avoid the duplication of enforcement activities by the Division of Marine Fisheries marine patrol and the Wildlife Resources Commission law enforcement officers, a schedule for high-volume areas that is developed to take into account that the Division of Marine Fisheries marine patrol must confine their enforcement activities to the coastal waters. "(3) To further encourage more efficient management of the State's resources, a protocol that sets forth appropriate circumstances when the Division of Marine Fisheries marine patrol is authorized or required to investigate boating accidents in coastal waters and within the joint jurisdiction of the Division of Marine Fisheries and the Wildlife Resources Commission. "(4) A provision to prohibit, except in the instances of investigations of boating accidents, the Division of Marine Fisheries from receiving any federal boating safety funds. "(5) A provision to provide mutual aid that authorizes the Division of Marine Fisheries marine patrol to enter into inland waters in winter to conduct a normal investigation of suspected illegal netting activity. "(b) No later than April 1, 2014, the Division of Marine Fisheries of the Department of Environment and Natural Resources and the Wildlife Resources Commission shall submit a joint report to the Senate Appropriations Committee on Natural and Economic Resources, the House of Representatives Appropriations Subcommittee on Natural and Economic Resources, and the Fiscal Research Division. The report shall include any findings and recommendations, including any legislative proposals. The report shall include findings regarding at least the following issues: "(1) Whether the agreement developed pursuant to subsection (a) of this section has been successful from the perspective of the Division of Marine Fisheries, the Wildlife Resources Commission and the public in clarifying enforcement activities and reducing the duplication of enforcement activities by the Division of Marine Fisheries marine patrol and the Wildlife Resources Commission law enforcement officers. "(2) As an alternative to the agreement developed under the provisions of subsection (a) of this section, whether it would be preferable to confer law enforcement powers upon the Division of Marine Fisheries marine patrol to authorize the Division of Marine Fisheries marine patrol to engage in enforcement activity related to only fisheries under the jurisdiction of the Division of Marine Fisheries or subject to the management of the Division of Marine Fisheries. "(3) Any other issue the Division of Marine Fisheries or the Wildlife Resources Commission deems pertinent to include in the report." Session Laws 2015-241, s. 14.29A, provides: "The Division of Marine Fisheries and the University of North Carolina at Wilmington shall annually report no later than March 1 to the chairs of the Senate and the House of Representatives appropriations committees with jurisdiction over natural and economic resources and the Fiscal Research Division regarding the funding for oyster research and restoration activities provided by this act. The report shall include detail regarding the use of the funds, including activities completed and additional personnel supported by the funds." Session Laws 2015-241, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2015.'" Session Laws 2015-241, s. 33.4, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2015-2017 fiscal biennium, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2015-2017 fiscal biennium." Session Laws 2015-241, s. 33.6, is a severability clause. Session Laws 2017-190, s. 3.1(a)-(e), as amended by Session Laws 2018-114, s. 17, provides: "(a) Definitions. - 'Importation of Marine and Estuarine Organisms Rule' means 15A NCAC 03I.0104 (Introduce, Transfer or Hold Imported Marine and Estuarine Organisms) for purposes of this section and its implementation. "(b) Importation of Marine and Estuarine Organisms Rule. - Until the effective date of the revised permanent rule that the Marine Fisheries Commission is required to adopt pursuant to subsection (d) of this section, the Commission and the Division of Marine Fisheries of the Department of Environmental Quality shall implement the Importation of Marine and Estuarine Organisms Rule, as provided in subsection (c) of this section. "(c) Implementation. - Use of American eels imported from Maryland, Virginia, or South Carolina in an aquaculture operation is exempt from the permitting requirements of the Importation of Marine and Estuarine Organisms Rule. "(d) Additional Rule-Making Authority. - The Commission shall adopt a rule to amend the Importation of Marine and Estuarine Organisms Rule consistent with subsection (c) of this section. Notwithstanding G.S. 150B-19(4) , the rule adopted by the Commission, pursuant to this section, shall be substantively identical to the provisions of subsection (c) of this section. Rules adopted pursuant to this section are not subject to Part 3 of Article 2A of Chapter 150B of the General Statutes. Rules adopted pursuant to this section shall become effective as provided in G.S. 150B-21.3(b1) as though 10 or more written objections had been received as provided by G.S. 150B-21.3(b2) . "(e) Sunset. - This section expires when permanent rules adopted as required by subsection (d) of this section become effective." Session Laws 2019-37, s. 3(a)-(e), provides: "(a) Definitions. - For purposes of this section and its implementation: "(1) 'Extensive shellfish culture' means shellfish grown on the bottom without the use of cages, racks, bags, or floats. "(2) 'Intensive shellfish culture' means shellfish grown on the bottom or in the water column using cages, racks, bags, or floats. "(3) 'Shellfish Production and Planting Requirements Rule' means 15A NCAC 03O.0201 (Standards and Requirements for Shellfish Bottom Leases and Franchises and Water Column Leases) for purposes of this section and its implementation. "(b) Shellfish Production and Planting Requirements Rule. - Until the effective date of the revised permanent rule that the Marine Fisheries Commission is required to adopt pursuant to subsection (d) of this section, the Commission shall implement the Shellfish Production Requirements Rule as provided in subsection (c) of this section. "(c) Implementation. - Shellfish leases shall be terminated unless they comply with the following requirements: "(1) Franchises recognized pursuant to G.S. 113-206 and shellfish bottom leases shall be terminated unless: "a. They produce a minimum of 20 bushels of shellfish per acre averaged over the previous three-year period beginning in year five of the lease; or "b. For intensive culture bottom operations, the holder of the lease provides evidence of purchasing a minimum of 23,000 shellfish seed per acre annually and for extensive culture bottom operations, the holder of the lease plants a minimum of 15,000 shellfish seed per acre per year. "(2) Water column leases shall be terminated unless: "a. They produce a minimum of 50 bushels of shellfish per acre averaged over the previous three-year period beginning in year five of the lease; or "b. The holder of the lease provides evidence of purchasing a minimum of 23,000 shellfish seed per acre annually. "(d) Additional Rule-Making Authority. - The Commission shall adopt a rule to amend the Shellfish Production Requirements Rule consistent with subsection (c) of this section. Notwithstanding G.S. 150B-19(4) , the rule adopted by the Commission pursuant to this section shall be substantively identical to the provisions of subsection (c) of this section. Rules adopted pursuant to this section are not subject to Part 3 of Article 2A of Chapter 150B of the General Statutes. Rules adopted pursuant to this section shall become effective as provided in G.S. 150B-21.3(b1) , as though 10 or more written objections had been received as provided in G.S. 150B-21.3(b2) . "(e) Applicability and Sunset. - This section and rules adopted pursuant to this section apply to all new and renewal shellfish leases granted after July 1, 2019. This section expires when permanent rules adopted as required by subsection (d) of this section become effective." Session Laws 2019-37, s. 13(a), is a severability clause. Effect of Amendments. - Session Laws 2004-187, ss. 7 and 8, effective August 17, 2004, added subdivision (a)(13) and subsection (h). Session Laws 2006-255, ss. 11.2 and 12, effective August 23, 2006, rewrote subsection (h) which read: "Neither the Commission nor the Department may disclose personal information provided by an applicant for a license issued under Article 14A or 14B of Chapter 113 of the General Statutes"; and added subsection (i). Session Laws 2012-190, s. 5, effective July 16, 2012, added subsection (e1). Session Laws 2012-200, s. 17, effective August 1, 2012, added subsection (e1). Session Laws 2013-360, s. 14.8(v), (w), effective August 1, 2013, rewrote subsection (d1); and added subsection (d2). Session Laws 2015-241, s. 14.30(u), effective July 1, 2015, substituted "Department of Environmental Quality" for "Department of Environment and Natural Resources" in subsection (f). Session Laws 2017-10, s. 2.1(b), effective October 1, 2017, added "email address, Commission-issued customer identification number" in subsection (h).