2005 North Carolina Code - General Statutes Article 15 - Regulation of Coastal Fisheries.

Article 15.

Regulation of Coastal Fisheries.

§ 113‑181.  Duties and powers of Department.

(a)       It is the duty of the Department to administer and enforce the provisions of this Subchapter pertaining to the conservation of marine and estuarine resources. In execution of this duty, the Department may collect such statistics, market information, and research data as is necessary or useful to the promotion of sports and commercial fisheries in North Carolina and the conservation of marine and estuarine resources generally; conduct or contract for research programs or research and development programs applicable to resources generally and to methods of cultivating, harvesting, marketing, or processing fish as may be beneficial in achieving the objectives of this Subchapter; enter into reciprocal agreements with other jurisdictions with regard to the conservation of marine and estuarine resources; and regulate placement of nets and other sports or commercial fishing apparatus in coastal fishing waters with regard to navigational and recreational safety as well as from a conservation standpoint.

(b)       The Department is directed to make every reasonable effort to carry out the duties imposed in this Subchapter. (1915, c. 84, s. 5; 1917, c. 290, s. 10; C.S., s. 1883; 1953, c. 1086; 1965, c. 957, s. 2; 1973, c. 1262, s. 28; 1987, c. 827, s. 101.)

 

§ 113‑182.  Regulation of fishing and fisheries.

(a)       The Marine Fisheries Commission is authorized to authorize, license, regulate, prohibit, prescribe, or restrict all forms of marine and estuarine resources in coastal fishing waters with respect to:

(1)       Time, place, character, or dimensions of any methods or equipment that may be employed in taking fish;

(2)       Seasons for taking fish;

(3)       Size limits on and maximum quantities of fish that may be taken, possessed, bailed to another, transported, bought, sold, or given away.

(b)       The Marine Fisheries Commission is authorized to authorize, regulate, prohibit, prescribe, or restrict and the Department is authorized to license:

(1)       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 within the jurisdiction of the Department; and

(2)       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 implement the work of the Department in carrying out its duties.

(3)       The possession, transportation, importation, exportation, sale, purchase, acquisition, and disposition of all fish taken in the Atlantic Ocean out to a distance of 200 miles from the State's mean low watermark, consistent with the Magnuson Fishery Conservation and Management Act, 16 U.S.C. § 1801, et seq., as amended. (1915, c. 84, s. 21; 1917, c. 290, s. 7; C.S., s. 1878; 1925, c. 168, s. 2; 1935, c. 35; 1945, c. 776; 1953, cc. 774, 1251; 1961, c. 1189, s. 1; 1963, c. 1097, s. 1; 1965, c. 957, s. 2; 1973, c. 1262, s. 28; 1995, c. 507, s. 26.5(c); 1997‑400, s. 6.6.)

 

§ 113‑182.1.  Fishery Management Plans.

(a)       The Department shall prepare proposed Fishery Management Plans for adoption by the Marine Fisheries Commission for all commercially or recreationally significant species or fisheries that comprise State marine or estuarine resources. Proposed Fishery Management Plans shall be developed in accordance with the Priority List, Schedule, and guidance criteria established by the Marine Fisheries Commission under G.S. 143B‑289.52.

(b)       The goal of the plans shall be to ensure the long‑term viability of the State's commercially and recreationally significant species or fisheries. Each plan shall be designed to reflect fishing practices so that one plan may apply to a specific fishery, while other plans may be based on gear or geographic areas. Each plan shall:

(1)       Contain necessary information pertaining to the fishery or fisheries, including management goals and objectives, status of relevant fish stocks, stock assessments for multiyear species, fishery habitat and water quality considerations consistent with Coastal Habitat Protection Plans adopted pursuant to G.S. 143B‑279.8, social and economic impact of the fishery to the State, and user conflicts.

(2)       Recommend management actions pertaining to the fishery or fisheries.

(3)       Include conservation and management measures that will provide the greatest overall benefit to the State, particularly with respect to food production, recreational opportunities, and the protection of marine ecosystems, and that will produce a sustainable harvest.

(4)       Specify a time period, not to exceed 10 years from the date of the adoption of the plan, for ending overfishing and achieving a sustainable harvest. This subdivision shall only apply to a plan for a fishery that is overfished. This subdivision shall not apply to a plan for a fishery where the biology of the fish or environmental conditions make ending overfishing and achieving a sustainable harvest within 10 years impracticable.

(c)       To assist in the development of each Fishery Management Plan, the Chair of the Marine Fisheries Commission shall appoint a fishery management plan advisory committee. Each fishery management plan advisory committee shall be composed of commercial fishermen, recreational fishermen, and scientists, all with expertise in the fishery for which the Fishery Management Plan is being developed.

(c1)     The Department shall consult with the regional advisory committees established pursuant to G.S. 143B‑289.57(e) regarding the preparation of each Fishery Management Plan. Before submission of a plan for review by the Joint Legislative Commission on Seafood and Aquaculture or the Environmental Review Commission, the Department shall review any comment or recommendation regarding the plan that a regional advisory committee submits to the Department within the time limits established in the Schedule for the development and adoption of Fishery Management Plans established by G.S. 143B‑289.52. The Commission shall consult with the regional advisory committees regarding the development of any temporary management measure that the Commission determines to be necessary to ensure the viability of the species or fishery while the plan is being developed and regarding the development of any management measure to implement the plan. Before the Commission adopts a temporary management measure or a management measure to implement a plan, the Commission shall review any comment or recommendation regarding the management measure that a regional advisory committee submits to the Commission.

(d)       Each Fishery Management Plan shall be reviewed at least once every five years. The Marine Fisheries Commission may revise the Priority List and guidance criteria whenever it determines that a revision of the Priority List or guidance criteria will facilitate or improve the development of Fishery Management Plans or is necessary to restore, conserve, or protect the marine and estuarine resources of the State. The Marine Fisheries Commission may not revise the Schedule for the development of a Fishery Management Plan, once adopted, without the approval of the Secretary of Environment and Natural Resources.

(e)       The Secretary of Environment and Natural Resources shall monitor progress in the development and adoption of Fishery Management Plans in relation to the Schedule for development and adoption of the plans established by the Marine Fisheries Commission. The Secretary of Environment and Natural Resources shall report to the Joint Legislative Commission on Seafood and Aquaculture on progress in developing and implementing the Fishery Management Plans on or before 1 September of each year. The Secretary of Environment and Natural Resources shall report to the Joint Legislative Commission on Seafood and Aquaculture within 30 days of the completion or substantial revision of each proposed Fishery Management Plan. The Joint Legislative Commission on Seafood and Aquaculture shall concurrently review each proposed Fishery Management Plan within 30 days of the date the proposed Plan is submitted by the Secretary. The Joint Legislative Commission on Seafood and Aquaculture may submit comments and recommendations on the proposed Plan to the Secretary within 30 days of the date the proposed Plan is submitted by the Secretary.

(f)        The Marine Fisheries Commission shall adopt rules to implement Fishery Management Plans in accordance with Chapter 150B of the General Statutes.

(g)       To achieve sustainable harvest under a Fishery Management Plan, the Marine Fisheries Commission may include in the Plan a recommendation that the General Assembly limit the number of fishermen authorized to participate in the fishery. The Commission may recommend that the General Assembly limit participation in a fishery only if the Commission determines that sustainable harvest cannot otherwise be achieved. In determining whether to recommend that the General Assembly limit participation in a fishery, the Commission shall consider all of the following factors:

(1)       Current participation in and dependence on the fishery.

(2)       Past fishing practices in the fishery.

(3)       Economics of the fishery.

(4)       Capability of fishing vessels used in the fishery to engage in other fisheries.

(5)       Cultural and social factors relevant to the fishery and any affected fishing communities.

(6)       Capacity of the fishery to support biological parameters.

(7)       Equitable resolution of competing social and economic interests.

(8)       Any other relevant considerations. (1997‑400, s. 3.4; 1997‑443, s. 11A.119(b); 1998‑212, s. 14.3; 1998‑225, s. 2.1; 2001‑213, s. 1; 2001‑452, s. 2.1; 2004‑160, ss. 3, 4.)

 

§ 113‑183.  Unlawful possession, transportation and sale of fish.

(a)       It is unlawful to possess, transport, offer to transport, sell, offer to sell, receive, buy, or attempt to buy any fish regulated by the Department with knowledge or reason to believe that such fish are illicit.

(b)       Fish are illicit when taken, possessed, or dealt with unlawfully, or when there has occurred at any time with respect to such fish a substantial failure of compliance with the applicable provisions of this Subchapter or of rules made under the authority of this Subchapter. (1961, c. 1189, s. 2; 1965, c. 957, s. 2; 1987, c. 827, s. 98.)

 

§ 113‑184.  Possession and transportation of prohibited oyster equipment.

(a)       It is unlawful to carry aboard any vessel subject to licensing requirements under Article 14A under way or at anchor in coastal fishing waters during the regular closed oyster season any scoops, scrapes, dredges, or winders such as are usually or can be used for taking oysters. Provided that when such vessels are engaged in lawfully permitted oyster harvesting operations on any privately held shellfish bottom lease under G.S. 113‑202 or G.S. 113‑205, the vessel shall be exempt from this requirement.

(b)       If any vessel has recently been under way or at anchor in coastal fishing waters engaged in activity similar in manner to that in which oysters are taken with scoops, scrapes, or dredges and at a time or place in which the taking of oysters is prohibited, the presence on board of the vessel of wet oysters or scoops, scrapes, dredges, lines, or deck wet, indicating the taking of oysters, constitutes prima facie evidence that the vessel was engaged in taking oysters unlawfully with scoops, scrapes, or dredges at the time or place prohibited.

(c)       Repealed by Session Laws 1991, c. 86, s. 1. (1903, c. 516, ss. 13‑15, 28; Rev., ss. 2385, 2397; C.S., s. 1926; 1963, c. 452; 1965, c. 957, s. 2; 1991, c. 86, s. 1; 1991 (Reg. Sess., 1992), c. 788, s. 1; 1998‑225, s. 3.3.)

 

§ 113‑185.  Fishing near ocean piers; trash or scrap fishing.

(a)       It is unlawful to fish in the ocean from vessels or with a net within 750 feet of an ocean pier licensed in accordance with G.S. 113‑169.4. The prohibition shall be effective when:

(1)       Buoys or beach markers, placed at the owner's expense in accordance with the rules adopted by the Marine Fisheries Commission, indicate clearly to fishermen in vessels and on the beach the requisite distance of 750 feet from the pier, and

(2)       The public is allowed to fish from the pier for a reasonable fee.

The prohibition shall not apply to littoral proprietors whose property is within 750 feet of a duly licensed ocean pier.

(b)       It is unlawful to engage in any fishing operations known as trash fishing or scrap fishing. "Trash fishing" or "scrap fishing" consists of taking the young of edible fish before they are of sufficient size to be of value as individual food fish:

(1)       For commercial disposition as bait; or

(2)       For sale to any dehydrating or nonfood processing plant; or

(3)       For sale or commercial disposition in any manner.

The Marine Fisheries Commission may by rule authorize the disposition of the young of edible fish taken in connection with the legitimate commercial fishing operations, provided that the quantity of such fish that may be disposed of is sufficiently limited, or the taking and disposition is otherwise so regulated, as to discourage any practice of trash or scrap fishing for its own sake. (1965, c. 957, s. 2; 1973, c. 1262, ss. 28, 86; 1985, c. 452, ss. 1‑4; 1987, c. 641, s. 5; c. 827, s. 98; 1991, c. 86, s. 2; 1998‑225, s. 3.4.)

 

§ 113‑186.  Measures for fish scrap and oil.

All persons buying or selling menhaden for the purpose of manufacturing fish scrap and oil within the State must buy or sell according to the measure prescribed in this section: 22,000 cubic inches for every 1,000 fish. Each day of failure to use the prescribed measure constitutes a separate offense. (1911, c. 101; C.S., s. 1963;  1965, c. 957, s. 2.)

 

§ 113‑187.  Penalties for violations of Subchapter and rules.

(a)       Any person who participates in a commercial fishing operation conducted in violation of any provision of this Subchapter and its implementing rules or in an operation in connection with which any vessel is used in violation of any provision of this Subchapter and its implementing rules is guilty of a Class A1 misdemeanor.

(b)       Any owner of a vessel who knowingly permits it to be used in violation of any provision of this Subchapter and its implementing rules is guilty of a Class A1 misdemeanor.

(c)       Any person in charge of a commercial fishing operation conducted in violation of any provision of this Subchapter and its implementing rules or in charge of any vessel used in violation of any provision of this Subchapter and its implementing rules is guilty of a Class A1 misdemeanor.

(d)       Any person in charge of a commercial fishing operation conducted in violation of the following provisions of this Subchapter or the following rules of the Marine Fisheries Commission; and any person in charge of any vessel used in violation of the following provisions of the Subchapter or the following rules, shall be guilty of a Class A1 misdemeanor. The violations of the statute or the rules for which the penalty is mandatory are:

(1)       Taking or attempting to take, possess, sell, or offer for sale any oysters, mussels, or clams taken from areas closed by statute, rule, or proclamation because of suspected pollution.

(2)       Taking or attempting to take or have in possession aboard a vessel, shrimp taken by the use of a trawl net, in areas not opened to shrimping, pulled by a vessel not showing lights required by G.S. 75A‑6 after sunset and before sunrise.

(3)       Using a trawl net in any coastal fishing waters closed by proclamation or rule to trawl nets.

(4)       Violating the provisions of a special permit or gear license issued by the Department.

(5)       Using or attempting to use any trawl net, long haul seine, swipe net, mechanical methods for oyster or clam harvest or dredge in designated primary nursery areas. (1965, c. 957, s. 2; 1973, c. 1102; c. 1262, ss. 28, 86; 1977, c. 771, s. 4; 1979, c. 388, s. 5; 1987, c. 641, s. 6; c. 827, s. 98; 1989, c. 275, s. 2; 1993, c. 539, s. 839; 1994, Ex. Sess., c. 24, s. 14(c); 1997‑400, s. 4.1.)

 

§ 113‑188.  Additional restrictions authorized.

The setting out of particular offenses or requirements with regard to specific species of fish or with regard to certain types of equipment does not affect the authority of the Marine Fisheries Commission to make similar additional restrictions not in conflict with the provisions of this Article under authority granted in this Chapter. (1965, c. 957, s. 2; 1973, c. 1262, s. 28; 1987, c. 827, s. 102.)

 

§ 113‑189.  Protection of sea turtles and porpoises.

(a)       It is unlawful to willfully take, disturb or destroy any sea turtles including green, hawksbill, loggerhead, Kemp's ridley and leatherback turtles, or their nests or eggs.

(b)       It shall be unlawful willfully to harm or destroy porpoises. (1967, cc. 198, 1225; 1981, c. 873; 1991, c. 86, s. 3.)

 

§ 113‑190:  Recodified as § 113‑200 by Session Laws 1997‑400, s.  6.7.

 

§ 113‑191.  Unlawful sale or purchase of fish; criminal and civil penalties.

(a)       Any person who sells fish in violation of G.S. 113‑168.4 or a rule of the Marine Fisheries Commission to implement that section is guilty of a Class A1 misdemeanor.

(b)       Any person who purchases fish in violation of G.S. 113‑169.3 or a rule of the Marine Fisheries Commission to implement that section is guilty of a Class A1 misdemeanor.

(c)       A civil penalty of not more than ten thousand dollars ($10,000) may be assessed by the Secretary against any person who sells fish in violation of G.S. 113‑168.4 or purchases fish in violation of G.S. 113‑169.3.

(d)       In determining the amount of the penalty, the Secretary shall consider the factors set out in G.S. 143B‑289.53(b). The procedures set out in G.S. 143B‑289.53 shall apply to civil penalty assessments that are presented to the Commission for final agency decision.

(e)       The Secretary shall notify any person assessed a civil penalty of the assessment and the specific reasons therefor by registered or certified mail or by any means authorized by G.S. 1A‑1, Rule 4. Contested case petitions shall be filed pursuant to G.S. 150B‑23 within 30 days of receipt of the notice of assessment.

(f)        Requests for remission of civil penalties shall be filed with the Secretary. Remission requests shall not be considered unless filed within 30 days of receipt of the notice of assessment. Remission requests must be accompanied by a waiver of the right to a contested case hearing pursuant to Chapter 150B of the General Statutes and a stipulation of the facts on which the assessment was based. Consistent with the limitations in G.S. 143B‑289.53(c), remission requests may be resolved by the Secretary and the violator. If the Secretary and the violator are unable to resolve the request, the Secretary shall deliver remission requests and his recommended action to the Committee on Civil Penalty Remissions of the Marine Fisheries Commission appointed pursuant to G.S. 143B‑289.53(c).

(g)       If any civil penalty has not been paid within 30 days after notice of assessment has been served on the violator, the Secretary shall request the Attorney General to institute a civil action in the superior court of any county in which the violator resides or has his or its principal place of business to recover the amount of the assessment, unless the violator contests the assessment as provided in subsection (e) of this section, or requests remission of the assessment in whole or in part as provided in subsection (f) of this section. If any civil penalty has not been paid within 30 days after the final agency decision or court order has been served on the violator, the Secretary shall request the Attorney General to institute a civil action in the superior court of any county in which the violator resides or has his or its principal place of business to recover the amount of the assessment. Civil actions must be filed within three years of the date the final agency decision or court order was served on the violator. (1997‑400, ss. 4.2, 4.5; 1998‑225, ss. 3.5, 3.6.)

 

§§ 113‑192 through 113‑199.  Reserved for future codification purposes.

 

§ 113‑200.  Fishery Resource Grant Program.

(a)       Creation. – There is created within the Sea Grant College Program at The University of North Carolina, the Fishery Resource Grant Program. The purpose of the program is to work within priorities established by the Grants Committee to protect and enhance the State's coastal fishery resources through individual grants in the following areas:

(1)       New fisheries equipment or gear.

(2)       Environmental pilot studies, including water quality and fisheries habitat.

(3)       Aquaculture or mariculture of marine dependent species.

(4)       Seafood technology.

(b)       Definition; Annual Establishment of Priorities. – For purposes of this section, the term "fishing related industry" means any of the following: (i) commercial fishing; (ii) recreational fishing; (iii) aquaculture; (iv) mariculture; and (v) handling of seafood products, including seafood dealing and seafood processing. The Grants Committee shall, in cooperation with persons involved in fishing related industries, the Division of Marine Fisheries, and the Sea Grant College Program, establish funding priorities effective July 1 of each year for the grant program. In adopting priorities, the Grants Committee is exempt from Article 2A of Chapter 150B of the General Statutes. The Grants Committee shall provide public notice of its proposed priorities at least 30 days before the Grants Committee meeting prior to a final determination of its priorities for the fiscal year.

(c)       Procedure to Solicit Proposals. – Following the establishment of priorities by the Grants Committee, the Sea Grant College Program shall hold workshops within the northern, southern, central, and Pamlico coastal regions to solicit applications and to assist persons involved in fishing related industries in writing proposals. The Sea Grant College Program shall encourage preproposal conferences among persons involved in fishing related industries and those with technical or research backgrounds to work as partners in developing and writing the proposals and in writing reports of final results. If the grants approved by the Grants Committee do not utilize all available funds, the Sea Grant College Program may advertise and solicit additional applications during the applicable fiscal year.

(d)       Application for Grant Program. – An applicant may apply for grant funds to the Sea Grant College Program. For purposes of this subsection, every proposal shall include substantial involvement of residents of North Carolina who are actively involved in a fishing related industry. A proposal generated by a person not involved in a fishing related industry may be eligible for funding only if the proposal includes written endorsements supporting the project from persons or organizations representing fishing related industries. An application shall include:

(1)       Name and address of the primary applicant.

(2)       List of marine fishing licenses issued under Chapter 113 of the General Statutes to the applicant by the State of North Carolina.

(3)       A description of the project.

(4)       A detailed statement of the projected costs of the project including the cost to plan and design the project.

(5)       An explanation of how the project will enhance the fishery resource.

(6)       List of names and addresses of any other persons who will participate in the project.

(7)       Any other information necessary to make a recommendation on the application.

(e)       Review Process. – The Sea Grant College Program shall conduct an anonymous peer review of all applications for fisheries grants. At least one of the peer reviewers shall be a person involved in a fishing related industry. An application is confidential and is not a public record under G.S. 132‑1 until after the closing date for submission of applications. Following the review of all proposals, the Sea Grant College Program shall rank proposals in order of priority and shall present the recommendations to the Grants Committee. The Sea Grant College Program may adopt criteria to rank proposals. In adopting criteria, the Sea Grant College Program is exempt from Article 2A of Chapter 150B of the General Statutes. Criteria adopted pursuant to this subsection are public records within the meaning of G.S. 132‑1.

(e1)     Grants Committee. – The Grants Committee shall consist of eleven members as follows:

(1)       Three employees of the Sea Grant College Program, appointed by the Director of the Sea Grant College Program.

(2)       Two employees of the Division of Marine Fisheries, appointed by the Fisheries Director.

(3)       Two members of the Marine Fisheries Commission, appointed by the Chair of the Marine Fisheries Commission.

(4)       One member of the Northeast Regional Advisory Committee established pursuant to G.S. 143B‑289.57(e), appointed by the Northeast Regional Advisory Committee.

(5)       One member of the Central Regional Advisory Committee established pursuant to G.S. 143B‑289.57(e), appointed by the Central Regional Advisory Committee.

(6)       One member of the Southeast Regional Advisory Committee established pursuant to G.S. 143B‑289.57(e), appointed by the Southeast Regional Advisory Committee.

(7)       One member of the Inland Regional Advisory Committee established pursuant to G.S. 143B‑289.57(e), appointed by the Inland Regional Advisory Committee.

(f)        Award Process. – The Grants Committee shall evaluate all grant proposals and the results of the peer review and ranking conducted pursuant to subsection (e) of this section. On the basis of this evaluation, the Grants Committee shall determine the amount of funding, if any, to be awarded to each grant applicant. To the extent practicable, the Grants Committee shall distribute grant funding among the northern, southern, central, and Pamlico coastal regions. Proposals for projects that include involvement of persons involved in a fishing related industry shall be accorded a priority in funding by the Grants Committee. Following approval by the Grants Committee, the Sea Grant College Program shall award the grants.

(g)       Restrictions on Grants. – No member of the Grants Committee may benefit financially from a grant. If a grant recipient from a prior year has failed to perform a grant project to the satisfaction of the Sea Grant College Program or the Grants Committee, the Grants Committee may decline to fund any new application involving the principal applicant.

(h)       Grant Reports and Funding. – Grant recipients shall provide quarterly progress reports to the Sea Grant College Program and shall submit invoices for expenditures for each quarter. Twenty‑five percent (25%) of the total grant award shall be held until the grant recipient has completed the project and submitted a final written report. The remainder of the grant award shall be distributed upon approval of each quarterly report and upon verification of the expenditures.

(i)        Report on Grant Program. – The Sea Grant College Program shall report on the Fishery Resource Grant Program to the Marine Fisheries Commission and the Joint Legislative Commission on Seafood and Aquaculture no later than January 1 of each year. (1995 (Reg. Sess., 1996), c. 633, s. 2; 1997‑400, s. 6.7; 1999‑162, s. 1.)