Subchapter 03o - LICENSES, LEASES, FRANCHISES AND PERMITS

 

section .0100 - LICENSES

 

15A NCAC 03O .0101      procedures AND REQUIREMENTS TO OBTAIN LICENSES, ENDORSEMENTS AND COMMERCIAL FISHING VESSEL REGISTRATIONS

(a)  To obtain any Marine Fisheries licenses, endorsements, commercial fishing vessel registrations, except Recreational Fishing Tournament Licenses to Sell Fish and Land or Sell Licenses, the following information is required for the application by the licensee, a responsible party, or person holding a power of attorney:

(1)           Full name, physical address, mailing address, date of birth, and signature of the licensee on the application.  If the licensee is not appearing before a license agent or a representative of the Division, the licensee's signature on the application shall be notarized;

(2)           Current picture identification of licensee or responsible party.  Acceptable forms of picture identification are driver's license, state identification card, military identification card, resident alien card (green card), or passport; or if purchased by mail, a copy thereof;

(3)           Certification that the applicant does not have four or more marine or estuarine resource violations during the previous three years;

(4)           Valid documentation papers or current motor boat registration, or copy thereof when purchasing a commercial fishing vessel registration.  If an application for transfer of documentation is pending, a copy of the pending application and a notarized bill of sale may be submitted;

(5)           Current articles of incorporation and a current list of corporate officers when purchasing a license or commercial fishing vessel registration in a corporate name.  In the case of incorporation of an individual fishing vessel, the name of the master of that vessel shall also be specified.  The responsible party shall notify the Morehead City Office of the Division of Marine Fisheries within five days of change of the master specified for that vessel;

(6)           An affirmation of liability insurance and that the operator is knowledgeable of United States Coast Guard (USCG) safety requirements for the vessel(s) used in the operation in accordance with G.S. 113-168.6 when purchasing a commercial fishing vessel registration with a for-hire endorsement.

(7)           If a partnership is established by a written partnership agreement, a current copy of such agreement shall be provided when purchasing a license, endorsement, or commercial fishing vessel registration in a partnership name;

(8)           For nonresidents, certification of the state of residency;

(9)           In addition to the information required in G.S. 113-169.4, linear length of pier when purchasing an Ocean Fishing Pier License;

(10)         In addition to the information required in G.S. 113-171.1, current aircraft registration and list of operator(s) when purchasing a Spotter Plane License;

(11)         In addition, for fish dealers licenses, the physical address of the established location where business is conducted and, if different, the address where records are kept;

(12)         When purchasing a Fish Dealer License with clam or oyster categories or a consolidated license, the applicant shall provide valid certification as a North Carolina certified shellfish dealer;

(13)         In addition, for the Blanket For-Hire Captain's Coastal Recreational Fishing License (CRFL), the applicant shall provide a valid certification from the USCG that allows carrying six or fewer passengers or a certification from the USCG that allows carrying more than six passengers; and

(14)         In addition, for the Blanket For-Hire Vessel CRFL or the Non-Blanket For-Hire Vessel License, valid documentation papers or current motor boat registration or copies thereof for the vessel engaged as for-hire.  If an application for transfer of documentation is pending, a copy of the pending application and a notarized bill of sale may be submitted.

(b)  License to Land Flounder from the Atlantic Ocean.

(1)           To qualify for a License to Land Flounder from the Atlantic Ocean, the applicant shall:

(A)          have landed in North Carolina at least 1,000 pounds of flounder from a single vessel each year from the Atlantic Ocean during any two of the 1992-93, 1993-94, 1994-95 license years for which the person had a vessel that was licensed to land in North Carolina; and

(B)          have been licensed under G.S. 113-152 or 113-153 during any two of the 1992-93, 1993-94, or 1994-95 license years; and

(C)          hold a valid Standard or Retired Standard Commercial Fishing License or valid Land or Sell License.

(2)           It is lawful for a person to hold Licenses to Land Flounder from the Atlantic Ocean equal to the number of vessels that he owns that individually met the eligibility requirements of Parts (b)(1)(A) and (b)(1)(B) of this Rule.

(3)           The License to Land Flounder from the Atlantic Ocean is only valid when used on the vessel specified at the time of license issuance.

(4)           At the time of issuance, the applicant for the License to Land Flounder from the Atlantic Ocean shall specify the name of the master of the vessel for each License to Land Flounder from the Atlantic Ocean issued. 

(5)           The holder of the License to Land Flounder from the Atlantic Ocean shall notify the Morehead Office of the Division of Marine Fisheries within five days of change as to the master identified on the license.

(6)           Licenses to Land Flounder from the Atlantic Ocean are issued for the current license year and expire on June 30.

(c)  To obtain a Recreational Fishing Tournament License to Sell Fish, the tournament organizer shall apply with the Division of Marine Fisheries at least 30 days prior to the starting date of the tournament with the following required information:

(1)           Full name, physical address, mailing address, date of birth, signature of the tournament organizer, name of tournament, and dates of tournament on the license application.  If the licensee is not appearing before a representative of the Division, the licensee's signature shall be notarized on the application.

(2)           Current picture identification of tournament organizer.  Acceptable forms of picture identification are driver's license, state identification card, military identification card, resident alien card (green card), or passport; or if purchased by mail, a copy thereof. 

(d)  To obtain a Land or Sell License, the following information is required for a proper application: 

(1)           Full name, physical address, mailing address, date of birth, and signature of the responsible party or master for the vessel on the license application.  If the licensee is not appearing before a representative of the Division, the licensee's signature on the application shall be notarized on the application;

(2)           Current picture identification of responsible party or master.  Acceptable forms of picture identification are driver's license, state identification card, military identification card, resident alien card (green card), or passport; or if applying by mail, a copy thereof;

(3)           Valid documentation papers or current motor boat registration or copy thereof when purchasing a commercial fishing vessel registration.  If an application for transfer of documentation is pending, a copy of the pending application and a notarized bill of sale may be submitted.

Fees shall be based on the vessel's homeport as it appears on the U.S. Coast Guard documentation papers or the State in which the vessel is registered, in accordance with G.S. 113-169.5.

(e)  Proof of residency in North Carolina for:

(1)           Standard Commercial Fishing License or Retired Standard Commercial Fishing License shall require a notarized certification from the applicant that the applicant is a resident of the State of North Carolina as defined by G.S. 113-130(4); and

(A)          a notarized certification from the applicant that a North Carolina State Income Tax Return was filed for the previous calendar or tax year as a North Carolina resident;

(B)          a notarized certification that the applicant was not required to file a North Carolina State Income Tax Return for the previous calendar or tax year; or

(C)          military identification, military dependent identification and permanent change of station orders or assignment orders substantiating individual's active duty assignment at a military facility in North Carolina.

(2)           All other types of licenses:

(A)          North Carolina voter registration card; or

(B)          Current North Carolina Driver's License; or

(C)          Current North Carolina Certificate of Domicile; or

(D)          Current North Carolina Identification Card issued by the North Carolina Division of Motor Vehicles; or

(E)           Military identification, military dependent identification and permanent change of station orders or assignment orders substantiating individual's active duty assignment at a military facility in North Carolina.

(f)  Applications submitted without complete and required information shall not be processed until all required information has been submitted.  Incomplete applications shall be returned to the applicant with deficiency in the application so noted.

(g)  It is unlawful for a license or registration holder to fail to notify the Division of Marine Fisheries within 30 days of a change of name or address, in accordance with G.S. 113-169.2.

(h)  Licenses are available at Offices of the Division or by mail from the Morehead City Office, unless otherwise specified.  In addition, Recreational Commercial Gear Licenses are available at Wildlife Service Agents who have been designated as agents of the Department.

(i)  To renew any Marine Fisheries licenses, endorsements, and commercial fishing vessel registration, except Recreational Commercial Gear Licenses, the following is required for the renewal application by the licensee, a responsible party, or person holding a power of attorney;

(1)           The information required in Subparagraphs (a)(4), (a)(5), and (a)(6) of this Rule are only required if a change has occurred since the last issuance of license, endorsement, or commercial fishing vessel registration.

(2)           Certification that articles of incorporation and list of corporate officers, if incorporated, written partnership agreement, if written partnership, or documentation papers or motor boat registration previously provided for initial license purchase are still valid and current for renewal.

(3)           Current and valid state driver's license or state identification picture identification numbers and expiration dates shall be verified on mail license renewal applications or any other electronic license renewal process, otherwise the licensee shall provide a photocopy for renewal by mail or visit a Division License Office and present a current and valid picture identification pursuant to Subparagraph (a)(2) of this Rule.

(4)           The licensee's or responsible party's signature on the application shall certify all information as true and accurate.  Notarization of signature on renewal applications shall not be required.

(5)           The Division of Marine Fisheries may require current copies of documentation for licenses, endorsements, or commercial fishing vessel registration on renewal when necessary to verify inconsistent information or the information cannot be verified by independent sources.

(6)           If the linear length of the pier has not changed for the Ocean Fishing Pier License renewal, the responsible party shall certify that the length is accurate; otherwise, a Marine Patrol Officer's signature is required to certify the linear length before the license can be renewed.

(7)           Certification that shellfish dealer certification by North Carolina previously provided for issuance of Fish Dealer License with clam or oyster categories or consolidated license is still valid and current for renewal.

 

History Note:        Authority G.S. 113-134; 113-168; 113-168.1-6; 113-169; 113-169.2-5; 113-171.1; 113-174.3; 143B-289.52;

Eff. January 1, 1991;

Amended Eff. July 1, 1997; March 1, 1994;

Temporary Amendment Eff. July 1, 1999;

Amended Eff. August 1, 2000;

Temporary Amendment Eff. April 1, 2001;

Amended Eff. May 1, 2015; July 1, 2008; December 1, 2006; August 1, 2004; August 1, 2002.

 

15A NCAC 03O .0102      RECREATIONAL FISHING TOURNAMENT LICENSE TO SELL FISH

(a)  It is unlawful for anyone other than the holder of the Recreational Fishing Tournament License to Sell Fish to sell fish taken during a recreational fishing tournament.

(b) Fish to be sold under the Recreational Fishing Tournament License to Sell Fish must be sold only to licensed fish dealers and shall comply with all applicable rules of the Marine Fisheries Commission (MFC) or provisions of proclamations issued by the Fisheries Director as authorized by the MFC.

(c)  It is unlawful for a licensed recreational fishing tournament organizer to fail to accurately and legibly complete and file within 30 days after the last day of the tournament a North Carolina Recreational Fishing Tournament Disposition of Proceeds from the Sale of Fish Form provided by the Division.

 

History Note:        Authority G.S. 113-134; 113-168.4; 143B-289.52;

Eff. January 1, 1991;

Amended Eff. March 1, 1994;

Temporary Amendment Eff. July 1, 1999;

Amended Eff. December 1, 2006; August 1, 2000.

 

15A NCAC 03O .0103      AUXILIARY VESSELS

(a)  Buy boats, run boats, purse boats or any other vessels used in conjunction with commercial fishing operations, except vessels without motors used in connection with other vessels with commercial fishing vessel registrations, shall have a commercial fishing vessel registration.

(b)  A person in command of a vessel that is auxiliary to a vessel with a commercial fishing vessel registration with a person aboard who holds a Standard Commercial Fishing License or a Retired Standard Commercial Fishing License engaged in a commercial fishing operation using a pound net, long-haul, beach seine or purse seine is exempt from the provisions of G.S. 113-168.2 (a1).

 

History Note:        Authority G.S. 113-134; 113-168.1; 113-168.2; 113-168.5; 113-168.6; 113-169; 143B-289.52;

Eff. January 1, 1991;

Temporary Amendment Eff. July 1, 1999;

Amended Eff. August 1, 2000.

 

15A NCAC 03O .0104      COMMERCIAL UNLOADING OF FISH

It is unlawful to unload fish from a vessel in North Carolina which has been engaged in a commercial fishing operation outside state waters without possessing a valid:

(1)           Standard or Retired Standard Commercial Fishing Licenses; or

(2)           Menhaden License for Nonresidents Without a Standard Commercial Fishing License; or

(3)           Shellfish License for North Carolina Residents without a Standard Commercial Fishing Licenses; or

(4)           Land or Sell License.

 

History Note:        Authority G.S. 113-168.1; 113-168.2; 113-168.4; 113-169; 113-169.5; 143B-289.52;

Eff. January 1, 1991;

Temporary Amendment Eff. July 1, 1999;

Amended Eff. August 1, 2000.

 

15a ncac 03o .0105      BAIT AND MUSSEL DEALERS

(a)  Persons dealing in minnows, live shrimp, or both minnows and live shrimp for bait purposes, who are subject to licensing requirements under G.S. 113-169.3 are required to purchase only the license applicable to finfish dealers.  A bona fide dealer in shrimp, licensed under the provisions of G.S. 113-169.3, may, however, deal in minnows as well as live shrimp for bait purposes, as an incident of his operations under his shrimp dealer's license.

(b)  Persons dealing in mussels who are subject to licensing requirements under the provisions of G.S. 113-169.3 are required to purchase only the license applicable to clam dealers and meet the shellfish dealer certification requirements in 15A NCAC 03O .0101(a)(11).

 

History Note:        Authority G.S. 113‑134; 113-169.3; 143B-289.52;

Eff. January 1, 1991;

Temporary Amendment Eff. July 1, 1999;

Amended Eff. August 1, 2004; August 1, 2000.

 

15A NCAC 03o .0106      DISPLAY OF LICENSES AND REGISTRATIONS

(a)  It is unlawful:

(1)           For any person to use a vessel required to be registered under the provisions of G.S. 113-168.6 in a commercial fishing operation without a current commercial fishing vessel registration decal mounted on an exterior surface so as to be plainly visible when viewed from the port side; and

(2)           To display any commercial fishing vessel registration decal not issued for the vessel displaying it.

(b)  It is unlawful to fail to display any fish dealer's licenses required by G.S. 113-169.3, or ocean fishing pier license required by G.S. 113-169.4 in prominent public view in each location subject to licensing.

(c)  It is unlawful to fail to display a current For-Hire License decal on the exterior surface of the vessel so as to be visible when viewed from the port side while engaged in for-hire recreational fishing.

 

History Note:        Authority G.S. 113-168.6; 113-169.3; 113-169.4; 143B-289.52;

Eff. January 1, 1991;

Temporary Amendment Eff. July 1, 1999;

Amended Eff. May 1, 2015; December 1, 2006; August 1, 2000.

 

15A NCAC 03O .0107      LOST LICENSE REPLACEMENT

Lost licenses except Blanket Coastal Recreational Fishing Licenses, endorsements, and commercial fishing vessel registration decals may be replaced upon payment of a fee of ten dollars ($10.00) or a fee equal to the initial cost of the license, endorsement, or commercial fishing vessel registration, whichever is less.  The replacement fee for the Blanket Coastal Recreational Fishing Licenses is five dollars ($5.00).

 

History Note:        Authority G.S. 113‑134; 113-168.1; 113-168.6; 113-169.4; 113-173; 113-174.1; 143B-289.52;

Eff. January 1, 1991;

Temporary Amendment Eff. July 1, 1999;

Amended Eff. December 1, 2006; August 1, 2000.

 

15A NCAC 03O .0108      LICENSE TRANSFERS

(a)  Licenses to Land Flounder from the Atlantic Ocean may only be transferred:

(1)           with the transfer of the ownership of a vessel that the licensee owns that individually met the eligibility requirements of 15A NCAC 3O .0101 (b) (1) (A) and (b) (1) (B) to the new owner of that vessel.  Transfer of the License to Land Flounder from the Atlantic Ocean transfers all flounder landings from the Atlantic Ocean associated with that vessel; or

(2)           by the owner of a vessel to another vessel under the same ownership.

Any transfer of license under this Paragraph may only be processed through the Division of Marine Fisheries Morehead City Office and no transfer is effective until approved and processed by the Division.

(b)  Commercial Fishing Vessel Registration Transfer.  When transferring ownership of a vessel bearing a current commercial fishing vessel registration, the new owner shall follow the requirements in 15A NCAC 3O .0101 and pay a replacement fee of ten dollars ($10.00) for a replacement commercial fishing vessel registration. The new owner must submit a form provided by the Division with the signatures of the former licensee and the signature of the new licensee notarized.

(c)  Standard or Retired Standard Commercial Fishing License transfers:

(1)           A Standard or Retired Standard Commercial Fishing License may only be transferred if both the transferor and the transferee have no current suspensions or revocations of any Marine Fisheries license privileges.

(2)           At the time of the transfer of a Standard or Retired Standard Commercial Fishing License, the transferor must indicate the retainment or transfer of the landings history associated with that Standard or Retired Standard Commercial Fishing License.  The transferor may retain a landings history only if the transferor holds an additional Standard or Retired Standard Commercial Fishing License.  Transfer of a landings history is all or none.

(3)           To transfer a Standard or Retired Standard Commercial Fishing License, the following information is required:

(A)          information on the transferee as set out in 15A NCAC 3O .0101;

(B)          notarization of the current license holder's and the transferee's signatures on a transfer form provided by the Division;

(C)          when the transferee is a non-resident, a written certified statement from the applicant listing any violations involving marine and estuarine resources during the previous three years;

(D)          when the transferor is retiring from commercial fishing, the transferor must submit evidence showing that such retirement has in fact occurred, for example, evidence of the transfer of all licensee's Standard Commercial Fishing Licenses, sale of all the licensee's registered vessels, or discontinuation of any active involvement in commercial fishing.

                                Properly completed transfer forms must be returned to Division Offices by mail or in person.

(4)           The Standard or Retired Standard Commercial Fishing License which is being transferred must be surrendered to the Division at the time of the transfer application.

(5)           Fees:

(A)          Transferee must pay a replacement fee of ten dollars ($10.00).

(B)          Transferee must pay the differences in fees as specified in G.S. 113-168.2 (e) or G.S. 113-168.3 (b) when the transferee who is a non-resident is being transferred a resident Standard or Retired Standard Commercial Fishing License.

(C)          Transferee must pay the differences in fees as specified in G.S. 113-168.2 (e) when the license to be transferred is a Retired Standard Commercial Fishing License and the transferee is less than 65 years old.

(6)           Transfer of Standard or Retired Standard Commercial Fishing License for Deceased Licensees:

(A)          When the deceased licensee's immediate surviving family member(s) is eligible to hold the deceased=s Standard Commercial Fishing Licenses or Retired Standard Commercial Fishing License, the Administrator/Executor must give written notification within six months after the Administrator/Executor qualifies under G. S. 28A to the Morehead City Office of the Division of Marine Fisheries of the request to transfer the deceased=s license to the estate Administrator/Executor.

(B)          A transfer to the Administrator/Executor shall be made according to the provisions of Subparagraphs (c (2) - (c) (4) of this Rule.  The Administrator/Executor must provide a copy of the deceased licensee's death certificate, a copy of the certificate of administration and a list of eligible immediate family members to the Morehead City Office of the Division of Marine Fisheries.

(C)          The Administrator/Executor may only transfer a license in the Administrator/Executor name on behalf of the estate to a eligible surviving family member.  The surviving family member transferee may only transfer the license to a third party purchaser of the deceased licensee's fishing vessel.  Transfers shall be made according to the provisions of Subparagraphs (c) 2 - (c) (4) of this Rule.

(d)  Transfer forms submitted without complete and required information shall be deemed incomplete and will not be considered further until resubmitted with all required information.

(e)  It is unlawful for a person to accept transfer of a Standard or Retired Standard Commercial Fishing License for which they are ineligible.

 

History Note:        Authority G.S. 113‑134; 113-168.1; 113-168.2; 113-168.3; 113-168.6; 143B-289.52;

Eff. January 1, 1991;

Amended Eff. March 1, 1994;

Temporary Amendment Eff. August 1, 1999; July 1, 1999;

Amended Eff. August 1, 2000.

 

15A NCAC 03O .0109      ASSIGNMENT OF SCFL

(a)  The Division of Marine Fisheries shall provide assignment forms upon issuance of the Standard Commercial Fishing License.  Assignment must be made on the Division assignment forms.  On the assignment form, the Standard Commercial Fishing License holder must designate what, if any, endorsements are included in the assignment.  Endorsements may not be assigned independent of the Standard Commercial Fishing License.  It is unlawful for the Standard Commercial Fishing License holder to fail to submit within five days the completed assignment form to any office of the Division in person or by mail to the Morehead City Division Office.  An assignment is in effect from the date specified on the assignment form and when:

(1)           assignment form is properly completed;

(2)           signatures of the current license holder and the assignee are notarized; and

(3)           assignee has in their possession the original actual Standard Commercial Fishing License with endorsements of the current license holder.

(b)  Assignments terminate when:

(1)           date specified on the assignment form is reached; or

(2)           licensee or assignee are determined ineligible for a license or assignment; or

(3)           Division receives a notarized statement from the current license holder stating a revised date for an earlier assignment termination; or

(4)           upon the licensee or assignee's death; or

(5)           the Standard Commercial Fishing License expires.

If the properly completely assignment form is not received by the Division within five days from the date it was signed, the assignment is null and void.  For an extension of time for assignments, a new assignment form must be completed in accordance with Subparagraphs (a)(1) - (3) of this Rule.

(c)  It is unlawful for an individual assigned a Standard Commercial Fishing License to fail to have available ready at hand for inspection all required documents as stated under G.S. 113-168.1.  The assignee when involved in a commercial fishing operation must have the original actual Standard Commercial Fishing License and any assigned endorsements and a copy of the assignment form in their possession ready for inspection.

(d)  All landings occurring during the time of the assignment shall be credited to the Standard Commercial Fishing License holder, not the assignee.

(e)  It is unlawful to be assigned more than a single Standard Commercial Fishing License at any one time.  It is unlawful to assign a Standard Commercial Fishing License to more than one individual at any one time.  Assignments may only be made by the person issued the Standard Commercial Fishing License and may not be further assigned by assignees.  Masters identified on the Standard Commercial Fishing Licenses of corporations consisting of an individual fishing vessel may not assign such licenses.

(f)  It is unlawful for a person to accept assignment of a Standard Commercial Fishing License for which they are ineligible.

(g)  Assignments submitted without complete and required information shall be deemed not in effect and shall not be considered further until resubmitted with all required information.

(h)  It is unlawful for any assignee of a Standard Commercial Fishing License not to return the assignment and the Standard Commercial Fishing License with any assigned endorsements to the assignor of that license within five days of notice that the assignment has been terminated or a demand by the assignor to return the license.

 

History Note:        Authority G.S. 113‑134; 113-168.1; 113-168.2; 113-168.5; 143B-289.52;

Eff. January 1, 1991;

Temporary Amendment Eff. October 2, 1999; July 1, 1999;

Amended Eff. August 1, 2000.

 

15A NCAC 03O .0110      LICENSE REFUNDS

All license fees are non-refundable except when licenses are issued by the Division in error.

 

History Note:        Authority G.S. 113-134; 113-168.1; 113-173; 143B-289.52; 147-84; 1993 (Regular Session 1994), c. 576, s. 3;

Eff. March 1, 1995;

Temporary Amendment Eff. July 1, 1999;

Amended Eff. August 1, 2000.

 

15A NCAC 03O .0111      SURRENDER OF LICENSES)

(a)  It is unlawful for any licensee to refuse to surrender to an agent of the Secretary all licenses, license receipts, endorsements, commercial fishing vessel registration or decals, and other forms and records relating to the license following service of notice of suspension or revocation of licenses in accordance with G.S. 113-171.

(b)  It is unlawful for any person in custody or possession of any licenses, license receipt, endorsements, commercial fishing vessel registration or decals, and other documentation required to be surrendered to refuse to surrender same to an agent of the Secretary making such demand.

 

History Note:        Authority G.S. 113-134; 113-171; 143B-289.52; S.L. 2010-145;

Temporary Adoption Eff. July 1, 1999;

Eff. August 1, 2000;

Amended Eff. October 1, 2012.

 

15A NCAC 03O .0112      For Hire Coastal Recreational Fishing

(a)  It is unlawful to operate a For Hire Vessel unless the vessel operator possesses either the For Hire Blanket Coastal Recreational Fishing License (CRFL) for the vessel or a Division of Marine Fisheries For Hire Fishing Permit for the vessel as provided in 15A NCAC 03O .0503(k).

(b)  It is unlawful for a For Hire Vessel operator to operate under the For Hire Blanket CRFL without:

(1)           Holding the USCG certification required in 15A NCAC 03O .0101(a)(13);

(2)           Having the For Hire Blanket CRFL for the vessel or copy thereof in possession and ready at hand for inspection; and

(3)           Having current picture identification in possession and ready at hand for inspection.

(c)  It is unlawful for the holder of the For Hire Blanket CRFL to fail to participate in and provide accurate information as requested by the Division for biological sampling and survey programs.

(d)  It is unlawful to fail to display a current For Hire Blanket CRFL decal mounted on an exterior surface of the vessel so as to be visible when viewed from the port side while engaged in for-hire recreational fishing.

 

History Note:        Authority G.S. 113-134; 113-174.3; 143B-289.52;

Eff. July 1, 2008.

 

15A NCAC 03O .0113      OCEAN FISHING PIER REPORTING REQUIREMENTS

It is unlawful for the responsible party of the Ocean Fishing Pier License to fail to provide to the Division by the 10th of each month a daily count of anglers fishing from the licensed pier from the previous month, including a daily count of zero for days when anglers did not fish.  The information shall be submitted on a paper form provided by the Division or via electronic mail to the electronic mail address provided at the time of license application.

 

History Note:        Authority G.S. 113-134; 113-169.4; 113-174.1; 143B-289.52;

Eff. April 1, 2011;

Amended Eff. May 1, 2015.

 

15A NCAC 03O .0114      SUSPENSION, REVOCATION, AND REISSUANCE OF LICENSES

(a)  All commercial and recreational licenses issued under Article 14A, Article 14B, and Article 25A of Chapter 113 shall be subject to suspension and revocation.

(b)  A conviction resulting from being charged by an inspector under G.S. 14-32, 14-33, 14-72, or 14-399 shall be deemed a conviction for the purposes of license suspension or revocation.

(c)  Upon receipt of notice of a licensee's conviction as specified in G.S. 113-171 or a conviction as specified in Paragraph (b) of this Rule, the Fisheries Director shall determine whether it is a first, second, third, fourth, or subsequent conviction. Where several convictions result from a single transaction or occurrence, the convictions shall be treated as a single conviction for the purposes of license suspension or revocation. For a second conviction, the Fisheries Director shall suspend all licenses issued to the licensee for a period of 30 days; for a third conviction, the Fisheries Director shall suspend all licenses issued to the licensee for a period of 90 days; for a fourth or subsequent conviction, the Fisheries Director shall revoke all licenses issued to the licensee, except:

(1)           for a felony conviction under G.S. 14-399, the Fisheries Director shall suspend all licenses issued to the licensee for a period of one year;

(2)           for a first conviction under G.S. 113-187(d)(1), the Fisheries Director shall suspend all licenses issued to the licensee for a period of one year; for a second or subsequent conviction under G.S. 113-187(d)(1), the Fisheries Director shall revoke all licenses issued to the licensee;

(3)           for a conviction under G.S. 14-72, 113-208, 113-209, 113-268, or 113-269, the Fisheries Director shall revoke all licenses issued to the licensee; and

(4)           for a conviction under G.S. 14-32 or 14-33, if the offense was committed against a marine fisheries inspector, the Fisheries Director shall revoke all licenses issued to the licensee and the former licensee shall not be eligible to apply for reinstatement of a revoked license or for any additional license authorized in Article 14A, Article 14B, or Article 25A of Chapter 113 for a period of two years.

(d)  After the Fisheries Director determines that a conviction requires a suspension or revocation of the licenses of a licensee, the Fisheries Director shall cause the licensee to be served with written notice of suspension or revocation. If the licensee is not an individual, the written notice shall be served upon any responsible individual affiliated with the corporation, partnership, or association. The notice of suspension or revocation shall be served by an inspector or other agent of the Department or by certified mail, shall state the ground upon which it is based, and shall take effect immediately upon service. The agent of the Fisheries Director making service shall collect all license certificates and plates and other forms or records relating to the license as directed by the Fisheries Director.

(e)  If a license has been suspended, the former licensee shall not be eligible to apply for reissuance of license or for any additional license authorized in Article 14A, Article 14B, or Article 25A of Chapter 113 during the suspension period. Licenses shall be returned to the licensee by the Fisheries Director or the Director's agents at the end of a period of suspension.

(f)  Where a license has been revoked, the former licensee shall not be eligible to apply for reinstatement of a revoked license or for any additional license authorized in Article 14A, Article 14B and Article 25A of Chapter 113 for a period of one year, except as provided in Subparagraph (c)(4) of this Rule. For a request for reinstatement following revocation, the former licensee shall demonstrate in the request that the licensee will conduct the operations for which the license is sought in accord with all applicable laws and rules, shall submit the request in writing, and shall send the request to the Fisheries Director, Division of Marine Fisheries, 3441 Arendell Street, P.O. Box 769, Morehead City, NC 28557. Upon the application of an eligible former licensee after revocation, the Fisheries Director may issue one license sought but not another, as necessary to prevent the hazard of recurring violations of the law.

(g)  A licensee shall not willfully evade the service prescribed in this Rule.

 

History Note:        Authority G.S. 113-168.1; 113-171; S.L. 2010-145;

Eff. October 1, 2012;

Amended Eff. May 1, 2017.

 

SECTION .0200 – LEASES AND FRANCHISES

 

15A NCAC 03O .0201      STANDARDS and requirements FOR SHELLFISH BOTTOM LEASES AND FRANCHISES AND WATER COLUMN LEASES

(a)  All areas of the public bottom underlying Coastal Fishing Waters shall meet the following standards and requirements, in addition to the standards in G.S. 113-202, in order to be deemed suitable for leasing for shellfish cultivation purposes:

(1)           the proposed lease area shall not contain a "natural shellfish bed," as defined in G.S. 113-201.1, or have 10 bushels or more of shellfish per acre;

(2)           the proposed lease area shall not be closer than 100 feet to a developed shoreline, except no minimum setback is required when the area to be leased borders the applicant's property, the property of "riparian owners" as defined in G.S. 113-201.1 who have consented in a notarized statement, or is in an area bordered by undeveloped shoreline; and

(3)           the proposed lease area shall not be less than one‑half acre and shall not exceed 10 acres.

(b)  To be suitable for leasing for aquaculture purposes, water columns superjacent to leased bottom shall meet the standards in G.S. 113‑202.1 and water columns superjacent to franchises recognized pursuant to G.S. 113-206 shall meet the standards in G.S. 113‑202.2.

(c)  Franchises recognized pursuant to G.S. 113-206 and shellfish bottom leases shall be terminated unless they meet the following requirements, in addition to the standards in and as allowed by G.S. 113-202:

(1)           they produce and market 10 bushels of shellfish per acre per year; and

(2)           they are planted with 25 bushels of seed shellfish per acre per year or 50 bushels of cultch per acre per year, or a combination of cultch and seed shellfish where the percentage of required cultch planted and the percentage of required seed shellfish planted totals at least 100 percent.

(d)  Water column leases be terminated unless they meet the following requirements, in addition to the standards in and as allowed by G.S. 113-202.1 and 113-202.2:

(1)           they produce and market 40 bushels of shellfish per acre per year; or

(2)           the underlying bottom is planted with 100 bushels of cultch or seed shellfish per acre per year.

(e)  The following standards shall be applied to determine compliance with Paragraphs (c) and (d) of this Rule:

(1)           Only shellfish marketed, planted, or produced as defined in 15A NCAC 03I .0101 as the fishing activities "shellfish marketing from leases and franchises," "shellfish planting effort on leases and franchises," or "shellfish production on leases and franchises" shall be included in the lease and franchise reports required by Rule .0207 of this Section.

(2)           If more than one lease or franchise is used in the production of shellfish, one of the leases or franchises used in the production of the shellfish shall be designated as the producing lease or franchise for those shellfish. Each bushel of shellfish shall be produced by only one lease or franchise. Shellfish transplanted between leases or franchises shall be credited as planting effort on only one lease or franchise.

(3)           Production and marketing information and planting effort information shall be compiled and averaged separately to assess compliance with the requirements of this Rule. The lease or franchise shall meet both the production requirement and the planting effort requirement within the dates set forth in G.S. 113-202.1 and G.S. 202.2 to be deemed in compliance for shellfish bottom leases. The lease or franchise shall meet either the production requirement or the planting effort requirement within the dates set forth in G.S. 113-202.1 and G.S. 202.2 to be deemed in compliance for water column leases.

(4)           All bushel measurements shall be in standard U.S. bushels.

(5)           In determining production and marketing averages and planting effort averages for information not reported in bushel measurements, the following conversion factors shall be used:

(A)          300 oysters, 400 clams, or 400 scallops equal one bushel; and

(B)          40 pounds of scallop shell, 60 pounds of oyster shell, 75 pounds of clam shell, or 90 pounds of fossil stone equal one bushel.

(6)           Production and marketing rate averages shall be computed irrespective of transfer of the lease or franchise. The production and marketing rates shall be averaged for the following situations using the time periods described:

(A)          for an initial bottom lease or franchise, over the consecutive full calendar years remaining on the bottom lease or franchise contract after December 31 following the second anniversary of the initial bottom lease or franchise;

(B)          for a renewal bottom lease or franchise, over the consecutive full calendar years beginning January 1 of the final year of the previous bottom lease or franchise term and ending December 31 of the final year of the current bottom lease or franchise contract;

(C)          for a water column lease, over the first five-year period for an initial water column lease and over the most recent five-year period thereafter for a renewal water column lease; or

(D)          for a bottom lease or franchise issued an extension period under Rule .0208 of this Section, over the most recent five-year period.

(7)           In the event that a portion of an existing lease or franchise is obtained by a new owner, the production history for the portion obtained shall be a percentage of the originating lease or franchise production equal to the percentage of the area of lease or franchise site obtained to the area of the originating lease or franchise.

(f)  Persons holding five or more acres under all shellfish bottom leases and franchises combined shall meet the requirements established in Paragraph (c) of this Rule before submitting an application for additional shellfish lease acreage to the Division of Marine Fisheries.

 

History Note:        Authority G.S. 113‑134; 113‑201; 113‑202; 113‑202.1; 113‑202.2; 113-206; 143B‑289.52;

Eff. January 1, 1991;

Amended Eff. May 1, 1997; March 1, 1995; March 1, 1994; September 1, 1991;

Temporary Amendment Eff. October 1, 2001;

Amended Eff. May 1, 2017; October 1, 2008; April 1, 2003.

 

15A NCAC 03o .0202      SHELLFISH BOTTOM AND WATER COLUMN LEASE APPLICATIONS

(a)  Application forms are available from the Division's office headquarters at 3441 Arendell Street, Morehead City, NC  28557 for persons desiring to apply for shellfish bottom and water column leases.  Each application shall be accompanied by a map or diagram prepared at the applicant's expense including an inset vicinity map showing the location of the proposed lease with detail sufficient to permit on‑site identification and must meet the information requirements pursuant to G.S. 113-202(d).

(b)  As a part of the application, the applicant shall submit a management plan for the area to be leased on a form provided by the Division which meets the following standards:

(1)           States the methods through which the applicant will cultivate and produce shellfish consistent with the minimum requirements set forth in 15A NCAC 03O .0201;

(2)           States the time intervals during which various phases of the cultivation and production plan will be achieved;

(3)           States the materials and techniques that will be utilized in management of the lease;

(4)           Forecasts the results expected to be achieved by the management activities; and

(5)           Describes the productivity of any other leases or franchises held by the applicant.

(c)  The completed application, map or diagram, and management plan for the requested lease shall be accompanied by the non‑refundable filing fee set forth in G.S. 113-202(d1).  An incomplete application shall be returned and not considered further until re‑submitted complete with all required information.

(d)  Applicants and transferees not currently holding a shellfish cultivation lease, and applicants and transferees holding one or more shellfish cultivation leases which are not meeting production requirements, shall complete and submit an examination, with a minimum of 70 percent correct answers, based on an educational package provided by the Division of Marine Fisheries.  The examination shall demonstrate the applicant's knowledge of:

(1)           the shellfish lease application process;

(2)           shellfish lease planting and production requirements;

(3)           lease marking requirements;

(4)           lease fees;

(5)           shellfish harvest area closures due to pollution;

(6)           safe handling practices;

(7)           lease contracts and renewals;

(8)           lease termination criteria; and

(9)           shellfish cultivation techniques.

(e)  After an application is deemed to have met all requirements and is accepted by the Division, the applicant shall identify the area for which a lease is requested with stakes at each corner in accordance with 15A NCAC 03O .0204(a)(1)(A).  The applicant shall attach to each stake a sign, provided by the Division containing the name of the applicant, the date the application was filed, and the estimated acres.

 

History Note:        Authority G.S. 113‑134; 113‑201; 113‑202; 143B‑289.52;

Eff. January 1, 1991;

Amended Eff. April 1, 2011; September 1, 2005; May 1, 1997; September 1, 1991.

 

15A NCAC 03O .0203      SHELLFISH LEASE APPLICATION PROCESSING

(a)  Upon acceptance of a completed application, the proposed lease area shall be inspected by agents of the Division.  Proposed lease areas inconsistent with applicable standards contained or referenced in 15A NCAC 3O .0201 shall result in the return of applications for amendment to remove the inconsistencies.  If the boundaries of the proposed lease area are modified, the stakes identifying such areas shall be relocated accordingly by the applicant.  The failure of applicants to amend applications or modify lease area identification, when required, shall result in denial of such applications.

(b)  If the initial or amended lease application is deemed consistent with all applicable requirements, the Secretary or his designee shall notify the applicant and publish notices of intention to lease in accordance with standards in G.S. 113‑202(f).

(c)  The Secretary shall consider the lease application, the Division's proposed lease area analysis, and public comments, and may in his discretion lease or decline to lease the proposed lease area or any part thereof.  Special conditions may be imposed so that leases may be issued which would otherwise be denied.  Should an applicant decide not to accept any special condition imposed on the lease by the Secretary, the application shall be considered denied.

(d)  Upon approval of leases by the Secretary, applicants shall mark the shellfish bottom leases in accordance with 15A NCAC 3O .0204(a)(1), water column leases in accordance with 15A NCAC 3O .0204(a)(2), and shall within 90 days submit to the Division acceptable surveys of the areas approved for leasing except that a water column lease which entirely covers a shellfish bottom lease or franchise with an accepted survey on file does not require another survey.  Such surveys shall be made at the expense of applicants and must meet the following standards:

(1)           Surveys and maps shall meet all the requirements of 21 NCAC 56 .1600, Standards of Practice for Land Surveying in North Carolina, which is hereby incorporated by reference including subsequent amendments and editions.  This material is available for inspection and copies may be obtained from the Marine Fisheries Division, Marine Fisheries Building, 3441 Arendell St., P.O. Box 769, Morehead City, North Carolina 28557, at no cost.

(2)           Maps shall bear the certificate:

"I _________________________ certify that this map was (drawn by me) (drawn under my supervision) from (an actual survey made by me) (an actual survey made under my supervision); that the error of closure as calculated by latitudes and departures is 1: _____________, that the area is ___________ acres.  Witness my hand and seal this ____________ day of __________ AD ________."

                                                ______________________________

Surveyor or Engineer

(3)           The phrase "other appropriate natural monuments or landmarks" in 21 NCAC 56 .1604(e)(9) shall include bridges, roads, highways, intersections, publicly maintained aids to navigation, houses and other permanent buildings, radio, telephone, TV, and water towers; docks; piers, and bulkheads; but does not include stakes marking the boundaries of adjoining leases, points of marsh, junctions of streams, or other landmarks which are particularly subject to change through natural processes, storms, or the effect of man.

(4)           A written description of the survey suitable for official documents shall be provided with the survey.

(5)           Locations of all corner markers in latitude and longitude shall be provided with the survey and presented in an eight digit format.  The relative accuracy of the corner marker locations shall be equal to or less than two meters.  Information on the method of measurement, make and model of equipment, and coordinate system used to determine the latitude and longitude shall be included.

(e)  Proposed shellfish bottom lease areas remain public bottom until a lease contract has been executed by the Secretary.

(f)  Proposed water column lease areas superjacent to shellfish bottom leases and recognized perpetual franchises remain public water until a lease contract has been executed by the Secretary.

 

History Note:        Authority G.S. 113‑134; 113‑182; 113‑201; 113‑202; 113‑202.1; 113‑202.2; 143B‑289.52;

Eff. January 1, 1991;

Amended Eff. October 1, 2008; March 1, 1994; September 1, 1991.

 

15A NCAC 03O .0204      MARKING SHELLFISH LEASES AND FRANCHISES

(a)  All shellfish bottom leases, franchises, and water column leases shall be marked as follows:

(1)           Shellfish bottom leases and franchises shall be marked by:

(A)          Stakes of wood or plastic material at least three inches in diameter at the water level and extending at least four feet above the high water mark.  The stakes shall be firmly jetted or driven into the bottom at each corner.

(B)          Signs displaying the number of the lease or franchise and the name of the owner printed in letters at least three inches high must be firmly attached to each corner stake.

(C)          Supplementary stakes of wood or plastic material, not farther apart than 50 yards or closer together than 50 feet and extending at least four feet above the high water mark, must be placed along each boundary, except when such would interfere with the use of traditional navigation channels.

(2)           Water column leases shall be marked by anchoring two yellow buoys, meeting the material and minimum size requirements specified in 15A NCAC 3J .0103(b) at each corner of the area or by larger buoys, posts and signs as identified and approved by the Secretary in the Management Plan.

(b)  Stakes marking areas of management within shellfish bottom leases or franchises, as approved in the management plan, must conform to Subparagraph (a)(1)(C) of this Rule and may not exceed one for each 1,200 square feet.  Marking at concentrations of stakes greater than one for each 1,200 square feet constitutes use of the water column and a water column lease is required in accordance with G.S. 113‑202.1 or G.S. 113‑202.2.

(c)  All areas claimed in filings made pursuant to G.S. 113‑205 as deeded bottoms through oyster grants issued by the county clerk of court or as private bottoms through perpetual franchises issued by the Shellfish Commission shall be marked in accordance with Paragraph (a) of this Rule, except the sign shall include the number of the franchise rather than the number of the lease.  However, claimed areas not being managed and cultivated shall not be marked.

(d)  It is unlawful to fail to remove all stakes, signs, and markers within 30 days of receipt of notice from the Secretary pursuant to Departmental Rule 15A NCAC 1G .0207 that a G.S. 113‑205 claim to a marked area has been denied.

(e)  It is unlawful to exclude or attempt to exclude the public from allowable public trust use of navigable waters on shellfish leases and franchises including, but not limited to, fishing, hunting, swimming, wading and navigation.

(f)  The Division has no duty to protect any shellfish bottom lease, franchise, or water column lease not marked in accordance with Paragraph (a) of this Rule.

 

History Note:        Authority G.S. 76‑40; 113‑134; 113‑182; 113‑201; 113‑202; 113‑202.1; 113‑202.2; 113‑205;

143B‑289.52;

Eff. January 1, 1991;

Amended Eff. September 1, 1997; March 1, 1994; October 1, 1992; September 1, 1991.

 

15A NCAC 03O .0205      LEASE RENEWAL

(a)  Lease renewal applications shall be provided to lessees as follows:

(1)           For shellfish bottom leases, renewal applications shall be provided in January of the year of expiration.

(2)           For water column leases, renewal applications shall be provided at least 90 days prior to expiration dates.

(b)  Lease renewal applications shall be accompanied by management plans meeting the requirements of 15A NCAC 03O .0202(b).  The non-refundable filing fee set forth in G.S. 113-202(j) shall accompany each renewal application for shellfish bottom leases.

(c)  A survey for renewal leases shall be required at the applicant's expense when the Division determines that the area leased to the renewal applicant is inconsistent with the survey on file.

(d)  When it is determined, after due notice to the lessee, and after opportunity for the lessee to be heard, that the lessee has not complied with the requirements of this Section or that the lease as issued is inconsistent with this Section, the Secretary may decline to renew, at the end of the current terms, any shellfish bottom or water column lease. The lessee may appeal the Secretary's decision by initiating a contested case as outlined in 15A NCAC 03P .0102.

(e)  Pursuant to G.S. 113‑202(a)(6), the Secretary is not authorized to recommend approval of renewal of a shellfish lease in an area closed to shellfishing by reason of pollution.  Shellfish leases partially closed due to pollution must be amended to exclude the area closed to shellfishing prior to renewal.  For purposes of lease renewal determinations, an area shall be considered closed to shellfish harvest by reason of pollution when the area has been classified by the State Health Director as prohibited or has been closed for more than 50 percent of the days during the final four years prior to renewal except shellfish leases in areas which have been closed for more than 50 percent of the days during the final four years prior to renewal and continue to meet established production requirements by sale of shellfish through relay periods or other depuration methods shall not be considered closed due to pollution for renewal purposes.

(f)  If the Secretary declines to renew a lease that has been determined to be inconsistent with the standards of this Section, the Secretary, with the agreement of the lessee, may issue a renewal lease for all or part of the area previously leased to the lessee that contains conditions necessary to conform the renewal lease to the requirements of this Section for new leases.

 

History Note:        Authority G.S. 113‑134; 113‑201; 113‑202; 113‑202.1; 113‑202.2; 143B‑289.52;

Eff. January 1, 1991;

Amended Eff. September 1, 2005; May 1, 1997; March 1, 1995; March 1, 1994; October 1, 1992; September 1, 1991.

 

15A NCAC 03O .0206      LEASE PROTEST

(a)  Should any person object to the granting of any initial or renewal lease, he has the right to protest its issuance prior to the granting of the lease by the Secretary.  The protestant may file a sworn statement of protest with the Division  stating the grounds for protest.  The Secretary shall notify both the prospective lessee and the protestant upon receipt of a protest, and shall conduct such investigation as he deems necessary, and shall notify both parties of the outcome of his investigation.  Protestants or applicants receiving an adverse recommendation on the lease application from the Secretary may appeal this decision as outlined in G.S. 113‑202(g).

(b)  Any member of the public shall be allowed an opportunity to comment on any lease application during the public hearing at which the lease application is being considered by the Secretary.

 

History Note:        Authority G.S. 113‑134; 113‑201; 113‑202; 143B‑289.52;

Eff. January 1, 1991;

Amended Eff. March 1, 1994; September 1, 1991.

 

15A NCAC 03O .0207      PRODUCTION REPORTS

(a)  The owners of shellfish leases and franchises shall provide annual production reports to the Division showing the amounts of material planted and harvested in connection with management for commercial production.  Reporting forms will be provided to owners of shellfish bottom leases and recognized franchises during the period that annual notices of rent due are provided to owners of shellfish bottom leases in accordance with G.S. 113‑202(j).  Reporting forms will be provided to owners of water column leases prior to each annual anniversary date.

(b)  Failure to furnish the required production report, correct and in detail requested, or filing a report containing false information, can constitute grounds for termination.

 

History Note:        Authority G.S. 113‑134; 113‑182; 113‑201; 113‑202; 113‑202.1; 113‑202.2; 143B‑289.52;

Eff. January 1, 1991;

Amended Eff. September 1, 1991.

 

15A NCAC 03o .0208      TERMINATION OF SHELLFISH bottom LEASES AND FRANCHISES AND WATER COLUMN LEASES

(a)  Procedures for termination of shellfish leaseholds are provided in G.S. 113-202. An appeal of the Secretary's decision to terminate a leasehold is governed by G.S. 150B-23.

(b)  Substantial breach of compliance with the provisions of rules of the Marine Fisheries Commission governing use of the leasehold includes the following, except as provided in Paragraph (c) of this Rule:

(1)           failure to meet shellfish production and marketing requirements for bottom leases or franchises in accordance with Rule .0201 of this Section;

(2)           failure to maintain a planting effort of cultch or seed shellfish for bottom leases or franchises in accordance with Rule .0201 of this Section;

(3)           failure either to meet shellfish production and marketing requirements or to maintain a planting effort of cultch or seed shellfish for water column leases in accordance with Rule .0201 of this Section;

(4)           the Fisheries Director has cause to believe the holder of private shellfish bottom or franchise rights has encroached or usurped the legal rights of the public to access public trust resources in navigable waters, in accordance with G.S. 113-205 and Rule .0204 of this Section; and

(5)           the Attorney General initiates action for the purpose of vacating or annulling letters patent granted by the State, in accordance with G.S. 146-63.

(c)  Consistent with G.S. 113-202(l1) and G.S. 113-201(b), a leaseholder that failed to meet requirements in G.S. 113-202, Rule .0201 of this Section or this Rule may be granted a single extension period of no more than two years per contract period upon a showing of hardship by written notice to the Fisheries Director prior to the expiration of the lease term that one of the following occurrences caused or will cause the leaseholder to fail to meet lease requirements:

(1)           death, illness, or incapacity of the leaseholder or his immediate family as defined in G.S. 113-168 that prevented or will prevent the leaseholder from working the lease;

(2)           damage to the lease from hurricanes, tropical storms, or other severe weather events recognized by the National Weather Service;

(3)           shellfish mortality caused by disease, natural predators, or parasites; or

(4)           damage to the lease from a manmade disaster that triggers a state emergency declaration or federal emergency declaration.

(d)  In the case of hardship as described in Subparagraph (c)(1) of this Rule, the notice shall state the name of the leaseholder or immediate family member and either the date of death or the date and nature of the illness or incapacity. Written notice and supporting documentation shall be addressed to the Director of the Division of Marine Fisheries, 3441 Arendell St., P.O. Box 769, Morehead City, NC 28557.

 

 

History Note:        Authority G.S. 113‑134; 113‑201; 113‑202; 113‑202.1; 113‑202.2; 113-205; 143B‑289.52;

Eff. January 1, 1991;

Amended Eff. May 1, 1997; March 1, 1995; March 1, 1994; October 1, 1992; September 1, 1991;

Temporary Amendment Eff. January 1, 2002; October 1, 2001;

Amended Eff. May 1, 2017; April 1, 2003.

 

15A NCAC 03o .0209      TRANSFER OF INTEREST

(a)  Within 30 days after transfer of ownership of all or any portion of interest in a shellfish lease or franchise, the new owner shall notify the Division, and provide the number of the lease or franchise and the county in which it is located.  Such notification shall be accompanied by a management plan prepared by the new owner in accordance with 15A NCAC 03O .0202(b).

(b)  If the new owner obtains a portion of an existing shellfish bottom lease or franchise, it shall not contain less than one-half acre and the required notification to the Division shall be accompanied by a survey prepared in accordance with the standards in 15A NCAC 03O .0203(d).

(c)  Within six months after transfer of ownership, the new owner shall complete shellfish cultivation lease training as specified in 15A NCAC 03O .0202(d).

(d)  Water column leases are not transferrable except when the Secretary approves such transfer in accordance with G.S. 113‑202.1(f) and G.S. 113‑202.2(f).

(e)  In the event the transferee involved in a lease is a nonresident, the Secretary must initiate termination proceedings.

 

History Note:        Authority G.S. 113‑134; 113‑182; 113‑201; 113‑202; 113‑202.1; 113‑202.2; 113‑205; 143B‑289.52;

Eff. January 1, 1991;

Amended Eff. April 1, 2011; March 1, 1994; September 1, 1991.

 

15A NCAC 03O .0210      SHELLFISH FRANCHISES

(a)  The resolution of claims filed under G.S. 113‑205 is governed by standards in Departmental Rules 15A NCAC 1G .0200 and .0300.  Following receipt of notification that a claim has a valid chain of title, the owner shall provide to the Division within 90 days a survey prepared in accordance with the standards in 15A NCAC 03O .0203(d).  Failure to provide the required survey within the time period specified will result in denial of the claim.

(b)  Acceptable management plans, prepared in accordance with the standards in 15A NCAC 03O .0202(b), shall be provided to the Division within 30 days following formal recognition of a valid chain of title and at ten‑year intervals thereafter.

(c)  The survey and management plan requirements in Paragraphs (a) and (b) of this Rule, and all other requirements and conditions of this Section affecting management of franchises, shall apply to all valid shellfish franchises recognized prior to September 1, 1989.

(d)  Commercial production requirements for franchises shall be identical to that required for leases in 15A NCAC 03O .0201(c)averaged over the most recent three‑year period after January 1 following the second anniversary of the dates of recognition of claims as valid shellfish franchises and continuing throughout the term of management plans required in Paragraph (b) of this Rule.  Annual reporting of commercial production shall be submitted upon receipt of forms provided by the Division for that purpose.

 

History Note:        Authority G.S. 113‑134; 113‑201; 113‑202; 113‑205; 143B‑289.52;

Eff. January 1, 1991;

Amended Eff. October 1, 2008; September 1, 1991.

 

15A NCAC 03O .0211      PROTECTION OF PRIVATE SHELLFISH INTEREST

It is unlawful to use any trawl net, long haul seine, swipe net, dredge, or mechanical method for clams or oysters on any shellfish lease or franchise unless it has been duly authorized by the Fisheries Director as provided in 15A NCAC 3K .0206 and .0303.

 

History Note:        Authority G.S. 113‑134; 113‑182; 113‑201;

Eff. October 1, 1992;

Amended Eff. August 1, 1998.

 

SECTION .0300 – RECREATIONAL COMMERCIAL GEAR LICENSES

 

15A NCAC 03O .0301      ELIGIBILITY FOR RECREATIONAL COMMERCIAL GEAR LICENSES

(a)  It is unlawful for any individual to hold more than one Recreational Commercial Gear License.

(b)  Recreational Commercial Gear Licenses shall only be issued to individuals.

 

History Note:        Filed as a Temporary Adoption Eff. August 9, 1994, for a period of 180 days or until the permanent rule becomes effective, whichever is sooner;

Authority G.S. 113‑134; 113-170.4; 113-173; 113-221; 143B-289.52;

Eff. February 1, 1995;

Temporary Amendment Eff. July 1, 1999;

Amended Eff. August 1, 2000.

 

15A NCAC 03O .0302      AUTHORIZED GEAR

(a)  The following are the only commercial fishing gear authorized (including restrictions) for use under a valid Recreational Commercial Gear License:

(1)           One seine 30 feet or over in length but not greater than 100 feet with a mesh length less than 2 1/2  inches when deployed or retrieved without the use of a vessel or any other mechanical methods.  A vessel may be used only to transport the seine;

(2)           One shrimp trawl with a headrope not exceeding 26 feet in length per vessel.

(3)           With or without a vessel, five eel, fish, shrimp, or crab pots in any combination, except only two pots of the five may be eel pots. Peeler pots are not authorized for recreational purposes;

(4)           One multiple hook or multiple bait trotline up to 100 feet in length;

(5)           Gill Nets:

(A)          Not more than 100 yards of gill nets with a mesh length equal to or greater than 2 1/2  inches except as provided in (C) of this Subparagraph.  Attendance is required at all times;

(B)          Not more than 100 yards of gill nets with a mesh length equal to or greater than 5 1/2  inches except as provided in (C) of this Subparagraph.  Attendance is required when used from one hour after sunrise through one hour before sunset in internal coastal fishing waters east and north of the Highway 58 Bridge at Emerald Isle and in the Atlantic Ocean east and north of 77° 04.0000' W.  Attendance is required at all times in internal coastal fishing waters west and south of the Highway 58 Bridge at Emerald Isle and in the Atlantic Ocean west and south of 77° 04.0000' W; and

(C)          Not more than 100 yards of gill net may be used at any one time, except that when two or more Recreational Commercial Gear License holders are on board, a maximum of 200 yards may be used from a vessel;

(D)          It is unlawful to possess aboard a vessel more than 100 yards of gill nets with a mesh length less than 5 1/2 inches and more than 100 yards of gill nets with a mesh length equal to or greater than 5 1/2 inches identified as recreational commercial fishing equipment when only one Recreational Commercial Gear License holder is on board.  It is unlawful to possess aboard a vessel more than 200 yards of gill nets with a mesh length less than 5 1/2 inches and more than 200 yards of gill nets with a mesh length equal to or greater than 5 1/2 inches identified as recreational commercial fishing equipment when two or more Recreational Commercial Gear License holders are on board;

(6)           A hand-operated device generating pulsating electrical current for the taking of catfish in the area described in 15A NCAC 03J .0304;

(7)           Skimmer trawls not exceeding 26 feet in total combined width.

(8)           One pound net used to take shrimp with each lead 10 feet or less in length and with a minimum lead net mesh of 1 1/2 inches, and enclosures constructed of net mesh of 1 1/4 inches or greater and with all dimensions being 36 inches or less.  Attendance is required at all times and all gear must be removed from the water when not being fished. Gear is to be marked and set as specified in 15A NCAC 03J .0501.

(b)  It is unlawful to use more than the quantity of authorized gear specified in Subparagraphs (a)(1) through  (a)(8)of this Rule, regardless of the number of individuals aboard a vessel possessing a valid Recreational Commercial Gear License.

(c)  It is unlawful for a person to violate the restrictions of or use gear other than that authorized by Paragraph (a) of this Rule.

(d)  Unless otherwise provided, this Rule does not exempt Recreational Commercial Gear License holders from the provisions of other applicable rules of the Marine Fisheries Commission or provisions of proclamations issued by the Fisheries Director as authorized by the Marine Fisheries Commission.

 

History Note:        Authority G.S. 113‑134; 113-173;

Temporary Adoption Eff. August 9, 1994, for a period of 180 days or until the permanent rule becomes effective, whichever is sooner;

Eff. February 1, 1995;

Temporary Amendment Eff. August 1, 1999; July 1, 1999; 

Amended Eff. August 1, 2000;

Temporary Amendment Eff. August 1, 2000;

Amended Eff. April 1, 2009; July 1, 2006; November 1, 2005; August 1, 2002.

 

15A NCAC 03O .0303      RECREATIONAL COMMERCIAL GEAR LICENSE POSSESSION LIMITS

(a)  It is unlawful to possess more than a single recreational possession limit when only one person aboard a vessel possesses a valid Recreational Commercial Gear License and recreational commercial fishing equipment as defined in 15A NCAC 03O .0302(a) is used, regardless of the number of persons on board.

(b)  It is unlawful to possess individual recreational possession limits in excess of the number of individuals aboard a vessel holding valid Recreational Commercial Gear Licences except as provided in Paragraph (f) of this Rule.

(c)  It is unlawful for any person who holds both a Recreational Commercial Gear License and a Standard or Retired Standard Commercial Fishing License and who is in possession of identified recreational commercial fishing equipment as defined in 15A NCAC 03O .0302(a), to exceed the single recreational possession limit.

(d)  It is unlawful for persons aboard a vessel collectively holding only one Recreational Commercial Gear License and any Standard Commercial Fishing License or Retired Standard Commercial Fishing License and who are in possession of any identified recreational commercial fishing equipment as defined in 15A NCAC 03O .0302(a), to exceed one recreational possession limit.

(e)  It is unlawful to possess more than 48 quarts, heads on, or 30 quarts, heads off, of shrimp when only one person aboard a vessel possesses a valid Recreational Commercial Gear License and recreational commercial fishing equipment as defined in 15A NCAC 03O .0302(a) is used.

(f)  It is unlawful to possess more than 96 quarts, heads on or 60 quarts, heads off, of shrimp if more than one person aboard a vessel possesses a valid Recreational Commercial Gear License and recreational commercial fishing equipment as defined in 15A NCAC 03O .0302(a) is used.

 

History Note:        Authority G.S. 113‑134; 113-170.4; 113-173; 143B-289.52;

Temporary Adoption Eff. August 9, 1994, for a period of 180 days or until the permanent rule becomes effective, whichever is sooner;

Eff. February 1, 1995;

Temporary Amendment Eff. June 7, 1998;

Amended Eff. April 1, 1999;

Temporary Amendment Eff. July 1, 1999;

Amended Eff. July 1, 2006; August 1, 2000.

 

15A NCAC 03O .0304      CONSIDERATION OF APPEAL PETITIONS

15A NCAC 03O .0305      EMERGENCY LICENSES

15A NCAC 03O .0306      HARDSHIP LICENSES

15A NCAC 03O .0307      APPEALS PANEL FINAL DECISION

15A NCAC 03O .0308      OFFICIAL RECORD

15A NCAC 03O .0309      REASONS FOR REVOCATION

15A NCAC 03O .0310      TEMPORARY EMERGENCY VESSEL CRAB LICENSES

 

History Note:        Filed as a Temporary Adoption Eff. August 9, 1994, for a period of 180 days or until the permanent rule becomes effective, whichever is sooner;

Authority G.S. 113‑134; 113‑153.1; 1993 (Regular Session 1994), c. 576, s. 3; 143B-289.52;

Eff. February 1, 1995;

Temporary Repeal Eff. July 1, 1999;

Repealed Eff. August 1, 2000.

 

SECTION .0400 – STANDARD COMMERCIAL LICENSE ELIGIBILITY

 

15A NCAC 03O .0401      ELIGIBILITY BOARD

(a)  The Chairman of the Marine Fisheries Commission, the Secretary of the Department of Environment and Natural Resources, and  the Director of the Division of Marine Fisheries may each name a designee and an alternate designee to serve on the Eligibility Board as their representative in their absence.

(b)  The Eligibility Board shall not review an application for eligibility without a quorum of the Eligibility Board members or designees being present.  Two or more members of the Eligibility Board or their designees constitute a quorum.

 

History Note:        Authority G.S. 113-134; 143B-289.52; S.L. 1998-225, s. 4.24;

Temporary Adoption Eff. April 1, 1999;

Eff. August 1, 2000.

 

15A NCAC 03O .0402      APPLICATION PROCESS

(a)  Application forms for determination of eligibility for the Standard Commercial Fishing Licenses Eligibility Pool shall be available at all offices of the Division of Marine Fisheries and must be submitted to the Morehead City Office of the Division of Marine Fisheries for processing.

(b)  Only one application per individual for determination of eligibility for the Standard Commercial Fishing Licenses Eligibility Pool shall be accepted or may be pending at any one time.  An applicant may have only one entry in the eligibility pool at any one time.

(c)  Individuals who currently hold or are eligible to purchase a Standard or Retired Standard Commercial Fishing License shall not be eligible to apply for additional Standard Commercial Fishing Licenses through the Standard Commercial Fishing Licenses Eligibility Pool.

(d)  If an applicant has died or becomes ineligible and is subsequently selected from the eligibility pool, that license eligibility shall automatically revert to the eligibility pool.

(e)  Persons claiming retirement from commercial fishing or transferring their Standard Commercial Fishing License may not apply for pool eligibility for two years from the date of the last transfer except as provided in 15A NCAC 03O .0404(3).

(f)  Applicants shall notify the Division of Marine Fisheries within 30 days of a change of address.

 

History Note:        Authority G.S. 113-134; 143B-289.52; S.L. 1998-225, s. 4:24;

Temporary Adoption Eff. April 1, 1999;

Eff. August 1, 2000;

Amended Eff. October 1, 2008; February 1, 2008.

 

15A NCAC 03O .0403      ELIGIBILITY BOARD REVIEW

(a)  After determination by the Eligibility Board, applicants will be notified in writing as to the applicant's meeting or not meeting required eligibility criteria for the Standard Commercial Fishing License Eligibility Pool.

(b)  The Marine Fisheries Commission shall determine the number of licenses available from the pool at their first scheduled meeting following July 1 of each year.

(c)  The Eligibility Board shall meet to review applications as often as deemed necessary by the Chairman of the Eligibility Board.

 

History Note:        Authority G.S. 113-134; 143B-289.52; S.L. 1998-225, s. 4:24;

Temporary Adoption Eff. April 1, 1999;

Eff. August 1, 2000;

Amended Eff. February 1, 2008.

 

15A NCAC 03o .0404      ELIGIBILITY CRITERIA

In determining eligibility of an application for the Standard Commercial Fishing License Eligibility Pool, the Eligibility Board shall apply the following criteria:

(1)           Involvement in Commercial Fishing:

(a)           Significant involvement in the commercial fishing industry for three of the last five years; or

(b)           Significant involvement in commercial fishing or in the commercial fishing industry prior to the last five years; or

(c)           In the case of an applicant who is under 16 years of age, significant involvement in commercial fishing for two out of the last five years with a parent, legal guardian, grandparent or other adult; or

(d)           Significant involvement of the applicant's family in commercial fishing.  For the purpose of this Sub-item, family shall include mother, father, brother, sister, spouse, children, grandparents or legal guardian.

For the purposes of this Rule, significant involvement means persons or corporations who are engaged in the actual taking of fish for sale, from the waters of the State, or other states, jurisdictions, or federal waters, or any licensed dealer or the dealer's employees who purchases fish at the point of landing.  Significant involvement does not include activities such as those who transport fish from the point of landing; those who sell or make commercial or recreational fishing gear; those who operate bait and tackle shops unless they are engaged in the actual taking of bait for sale; or those who work in fish markets or crab picking operations.

(2)           Compliance with Applicable Laws and Regulations:

(a)           The applicant shall not have any licenses, endorsements or commercial fishing vessel registrations issued by the Division of Marine Fisheries or the right to hold such under suspension or revocation at the time of application or during the eligibility review; or

(b)           If selected for the Standard Commercial Fishing License Eligibility Pool, the applicant shall become ineligible for the Standard Commercial Fishing License Eligibility Pool if any licenses, endorsements or registrations or the right to hold such issued by the Division of Marine Fisheries are suspended or revoked; or

(c)           Four convictions within the last three years or the number of convictions which would cause suspension or revocation of license, endorsement, or registration within the last three years shall result in the application being denied; or

(d)           A record of habitual violations evidenced by eight or more convictions in the last 10 years shall result in the application being denied.

For purposes of eligibility for the Standard Commercial Fishing License Eligibility Pool, the term convictions shall include but not be limited to any conviction for violation of any provision of Chapter 113 of the North Carolina General Statutes and any rule implementing or authorized by such statutes; any conviction for violation of G.S. 76-40 and any rule implementing or authorized by such statute; any conviction of Chapter 75A of the North Carolina General Statutes and any rule implementing or authorized by such statutes; any conviction for violation of any provision of Article 7 of Chapter 143B of the North Carolina General Statutes and any rule implementing or authorized by such statutes; any conviction of resist, obstruct, or delay involving a Marine Patrol Officer or Wildlife Officer under G.S. 14-223; and any conviction involving assaultive behavior toward a Marine Patrol Officer or other governmental official of the Department of Environment and Natural Resources or the Wildlife Commission.

Applicants for the Standard Commercial Fishing License Eligibility Pool must provide certification that the applicant does not have four or more marine or estuarine resource violations during the previous three years.

(3)           The responsible party shall not have transferred a Standard Commercial Fishing License granted by the Eligibility Board.

(4)           All applicants for the Standard Commercial Fishing License Eligibility Pool must meet all other statutory eligibility requirements for the Standard Commercial Fishing License.

 

History Note:        Authority G.S. 113-134; 113-168.1; 113-168.2; 143B-289.52; S.L. 1998-225, s. 4.24;

Temporary Adoption Eff. April 1, 1999;

Eff. August 1, 2000;

Amended Eff. October 1, 2008; February 1, 2008.

 

15A NCAC 03O .0405      APPLICATION DOCUMENTATION

Documentation for applications:

(1)           Statements from individuals verifying the applicant=s involvement must contain the individual=s name, address and telephone number and must be notarized.

(2)           Proof of income derived from commercial fishing or the commercial fishing industry.  Proof of this income shall be tax records.

(3)           The extent to which the applicant has complied with federal and state laws, regulations, and rules relating to coastal fishing and protection of the environment.  Federal compliance will be verified by a notarized statement from the applicant that he has complied with federal laws.

(4)           All documents required by this Rule must be notarized.

(5)           Applications shall be legible and complete or they will be returned.

(6)           It is unlawful to submit false statements on applications or supporting documents.  If eligibility is based on false information provided by the applicant, this eligibility is automatically revoked.

 

History Note:        Authority G.S. 113-134; 143B-289.52; S.L. 1998-225, s. 4.24;

Temporary Adoption Eff. April 1, 1999;

Eff. August 1, 2000.

 

15A NCAC 03O .0406      STANDARD COMMERCIAL FISHING LICENSE ELIGIBILITY POOL CERTIFICATION

Annual certification to maintain an eligible application in the Standard Commercial Fishing License Eligibility Pool shall be as follows:

(1)           The applicant shall certify that the information on his original application is correct and that he desires to remain in the Standard Commercial Fishing License Eligibility Pool.

(2)           A certification form shall be provided and mailed to the applicant at the last known address by the Division.

(3)           This certification, with any changes such as address, phone number, or updated fisheries involvement information since the last application or certification must be notarized and submitted to the Division within 12 months of the initial application and annually thereafter.

(4)           Failure to return certification that application is correct or with changes within 30 days shall result in the application being deleted from the Standard Commercial Fishing License Eligibility Pool.

(5)           An applicant that has been deleted from the Standard Commercial Fishing License Eligibility Pool shall receive a notice from the Division.

 

History Note:        Authority G.S. 113-134; 143B-289.52; S.L. 1998-225, s. 4.24;

Temporary Adoption Eff. April 1, 1999;

Eff. August 1, 2000.

 

SECTION .0500 - PERMITS

 

15A NCAC 03O .0501      PROCEDURES AND REQUIREMENTS TO OBTAIN PERMITS

(a)  To obtain any Marine Fisheries permit, an applicant, responsible party, or person holding a power of attorney shall provide the following information:

(1)           the full name, physical address, mailing address, date of birth, and signature of the applicant on the application and, if the applicant is not appearing before a license agent or the designated Division contact, the applicant's signature on the application shall be notarized;

(2)           a current picture identification of applicant, responsible party, or person holding a power of attorney. Acceptable forms of picture identification are driver's license, North Carolina Identification card issued by the North Carolina Division of Motor Vehicles, military identification card, resident alien card (green card), or passport, or if applying by mail, a copy thereof;

(3)           for permits that require a list of designees, the full names and dates of birth of designees of the applicant who will be acting under the requested permit;

(4)           certification that the applicant and his designees do not have four or more marine or estuarine resource convictions during the previous three years;

(5)           for permit applications from business entities:

(A)          the business name;

(B)          the type of business entity: corporation, "educational institution" as defined in 15A NCAC 03I .0101, limited liability company (LLC), partnership, or sole proprietorship;

(C)          the name, address, and phone number of responsible party and other identifying information required by this Subchapter or rules related to a specific permit;

(D)          for a corporation applying for a permit in a corporate name, the current articles of incorporation and a current list of corporate officers;

(E)           for a partnership that is established by a written partnership agreement, a current copy of such agreement shall be provided when applying for a permit; and

(F)           for business entities other than corporations, copies of current assumed name statements if filed with the Register of Deeds office for the corresponding county and copies of current business privilege tax certificates, if applicable; and

(6)           additional information as required for specific permits.

(b)  A permittee shall hold a valid Standard or Retired Standard Commercial Fishing License in order to hold a:

(1)           Pound Net Permit;

(2)           Permit to Waive the Requirement to Use Turtle Excluder Devices in the Atlantic Ocean;

(3)           Atlantic Ocean Striped Bass Commercial Gear Permit; or

(4)           Permit for Weekend Trawling for Live Shrimp.

(A)          An individual who is assigned a Standard Commercial Fishing License is the individual required to hold a Permit for Weekend Trawling for Live Shrimp.

(B)          The master designated on the single vessel corporation Standard Commercial Fishing License is the individual required to hold the Permit for Weekend Trawling for Live Shrimp.

(c)  If mechanical methods to take shellfish are used, a permittee and his designees shall hold a valid Standard or Retired Standard Commercial Fishing License with a Shellfish Endorsement in order for a permittee to hold a:

(1)           Permit to Transplant Prohibited (Polluted) Shellfish;

(2)           Permit to Transplant Oysters from Seed Oyster Management Areas;

(3)           Permit to Use Mechanical Methods for Shellfish on Shellfish Leases or Franchises, except as provided in G.S. 113-169.2;

(4)           Permit to Harvest Rangia Clams from Prohibited (Polluted) Areas; or

(5)           Depuration Permit.

(d)  If mechanical methods to take shellfish are not used, a permittee and his designees shall hold a valid Standard or Retired Standard Commercial Fishing License with a Shellfish Endorsement or a Shellfish License in order for a permittee to hold a:

(1)           Permit to Transplant Prohibited (Polluted) Shellfish;

(2)           Permit to Transplant Oysters from Seed Oyster Management Areas;

(3)           Permit to Harvest Rangia Clams from Prohibited (Polluted) Areas; or

(4)           Depuration Permit.

(e)  A permittee shall hold a valid:

(1)           Fish Dealer License in the proper category in order to hold Dealer Permits for Monitoring Fisheries Under a Quota/Allocation for that category; and

(2)           Standard Commercial Fishing License with a Shellfish Endorsement, Retired Standard Commercial Fishing License with a Shellfish Endorsement, or a Shellfish License in order to harvest clams or oysters for depuration.

(f)  Aquaculture Operations/Collection Permits:

(1)           A permittee shall hold a valid Aquaculture Operation Permit issued by the Fisheries Director to hold an Aquaculture Collection Permit.

(2)           The permittee or designees shall hold appropriate licenses from the Division of Marine Fisheries for the species harvested and the gear used under the Aquaculture Collection Permit.

(g)  Atlantic Ocean Striped Bass Commercial Gear Permit:

(1)           An applicant for an Atlantic Ocean Striped Bass Commercial Gear Permit shall declare one of the following types of gear for an initial permit and at intervals of three consecutive license years thereafter:

(A)          a gill net;

(B)          a trawl net; or

(C)          a beach seine.

For the purpose of this Rule, a "beach seine" is defined as a swipe net constructed of multi-filament or multi-fiber webbing fished from the ocean beach that is deployed from a vessel launched from the ocean beach where the fishing operation takes place. Gear declarations shall be binding on the permittee for three consecutive license years without regard to subsequent annual permit issuance.

(2)           A person is not eligible for more than one Atlantic Ocean Striped Bass Commercial Gear Permit regardless of the number of Standard Commercial Fishing Licenses, Retired Standard Commercial Fishing Licenses, or assignments held by the person.

(h)  Applications submitted without complete and required information shall not be processed until all required information has been submitted. Incomplete applications shall be returned to the applicant with the deficiency in the application noted.

(i)  A permit shall be issued only after the application has been deemed complete by the Division of Marine Fisheries and the applicant certifies to abide by the permit general and specific conditions established under 15A NCAC 03J .0501, .0505, 03K .0103, .0104, .0107, .0111, .0401, 03O .0502, and .0503, as applicable to the requested permit.

(j)  In determining whether to issue, modify, or renew a permit, the Fisheries Director or his agent shall evaluate factors such as the following:

(1)           potential threats to public health or marine and estuarine resources regulated by the Marine Fisheries Commission;

(2)           the applicant's demonstration of a valid justification for the permit and a showing of responsibility; and

(3)           the applicant's history of fisheries violations evidenced by eight or more violations in 10 years.

(k)  The Division of Marine Fisheries shall notify the applicant in writing of the denial or modification of any permit request and the reasons therefor. The applicant may submit further information or reasons why the permit should not be denied or modified.

(l)  Permits are valid from the date of issuance through the expiration date printed on the permit. Unless otherwise established by rule, the Fisheries Director may establish the issuance timeframe for specific types and categories of permits based on season, calendar year, or other period based upon the nature of the activity permitted, the duration of the activity, compliance with federal or state fishery management plans or implementing rules, conflicts with other fisheries or gear usage, or seasons for the species involved. The expiration date shall be specified on the permit.

(m)  For permit renewals, the permittee's signature on the application shall certify all information as true and accurate. Notarized signatures on renewal applications shall not be required.

(n)  It is unlawful for a permit holder to fail to notify the Division of Marine Fisheries within 30 days of a change of name or address, in accordance with G.S. 113-169.2.

(o)  It is unlawful for a permit holder to fail to notify the Division of Marine Fisheries of a change of designee prior to use of the permit by that designee.

(p)  Permit applications are available at all Division Offices.

 

History Note:        Authority G.S. 113-134; 113-169.1; 113-169.2; 113-169.3; 113-182; 113-210; 143B-289.52;

Temporary Adoption Eff. September 1, 2000; May 1, 2000;

Eff. April 1, 2001;

Temporary Amendment Eff. October 1, 2001;

Amended Eff. May 1, 2017; May 1, 2015; April 1, 2011; April 1, 2009; July 1, 2008; December 1, 2007; September 1, 2005; April 1, 2003; August 1, 2002.

 

15A NCAC 03O .0502      PERMIT CONDITIONS; GENERAL

The following conditions apply to all permits issued by the Fisheries Director:

(1)           it is unlawful to operate under the permit except in areas, at times, and under conditions specified on the permit;

(2)           it is unlawful to operate under a permit without having the permit or copy thereof in possession of the permittee or his or her designees at all times of operation and the permit or copy thereof shall be ready at hand for inspection, except for Pound Net Permits;

(3)           it is unlawful to operate under a permit without having a current picture identification in possession and ready at hand for inspection;

(4)           it is unlawful to refuse to allow inspection and sampling of a permitted activity by an agent of the Division;

(5)           it is unlawful to fail to provide complete and accurate information requested by the Division in connection with the permitted activity;

(6)           it is unlawful to hold a permit issued by the Fisheries Director when not eligible to hold any license required as a condition for that permit as stated in 15A NCAC 03O .0501;

(7)           it is unlawful to fail to provide reports within the timeframe required by the specific permit conditions;

(8)           it is unlawful to fail to keep such records and accounts as required by the rules in this Chapter for determination of conservation policy, equitable and efficient administration and enforcement, or promotion of commercial or recreational fisheries;

(9)           it is unlawful to assign or transfer permits issued by the Fisheries Director, except for Pound Net Permits as authorized by 15A NCAC  03J .0504;

(10)         the Fisheries Director, or his agent, may, by conditions of the permit, specify any or all of the following for the permitted purposes:

(a)           species;

(b)           quantity or size;

(c)           time period;

(e)           location;

(d)           means and methods;

(f)            disposition of resources;

(g)           marking requirements; or

(h)           harvest conditions.

(11)         unless specifically stated as a condition on the permit, all statutes, rules and proclamations shall apply to the permittee and his or her designees; and

(12)         as a condition of accepting the permit from the Fisheries Director, the permittee agrees to abide by all conditions of the permit and agrees that if specific conditions of the permit, as identified on the permit, are violated or if false information was provided in the application for initial issuance, renewal or transfer, the permit may be suspended or revoked by the Fisheries Director.

 

History Note:        Authority G.S. 113-134; 113-169.1; 113-182; 113-210; 143B-289.52;

Temporary Adoption Eff. May 1, 2000;

Eff. April 1, 2001;

Amended Eff. April 1, 2009; September 1, 2005.

 

15A NCAC 03O .0503      PERMIT CONDITIONS; SPECIFIC

(a)  Horseshoe Crab Biomedical Use Permit:

(1)           It is unlawful to use horseshoe crabs for biomedical purposes without first obtaining a permit.

(2)           It is unlawful for persons who have been issued a Horseshoe Crab Biomedical Use Permit to fail to submit an annual report on the use of horseshoe crabs to the Division of Marine Fisheries due on February 1 of each year. Such reports shall be filed on forms provided by the Division and shall include a monthly account of the number of crabs harvested, statement of percent mortality up to the point of release, harvest method, number or percent of males and females, and disposition of bled crabs prior to release.

(3)           It is unlawful for persons who have been issued a Horseshoe Crab Biomedical Use Permit to fail to comply with the Atlantic States Marine Fisheries Commission Interstate Fishery Management Plan for Horseshoe Crab. The Atlantic States Marine Fisheries Commission Interstate Fishery Management Plan for Horseshoe Crab is incorporated by reference including subsequent amendments and editions. Copies of this plan are available via the Internet from the Atlantic States Marine Fisheries Commission at http://www.asmfc.org/fisheries-management/program-overview and at the Division of Marine Fisheries, 3441 Arendell Street, P.O. Box 769, Morehead City, NC 28557 at no cost.

(b)  Dealers Permits for Monitoring Fisheries under a Quota/Allocation:

(1)           During the commercial season opened by proclamation or rule for the fishery for which a Dealers Permit for Monitoring Fisheries under a Quota/Allocation permit is issued, it is unlawful for the fish dealers issued such permit to fail to:

(A)          fax or send via electronic mail by noon daily, on forms provided by the Division, the previous day's landings for the permitted fishery to the dealer contact designated on the permit. Landings for Fridays or Saturdays shall be submitted on the following Monday. If the dealer is unable to fax or electronic mail the required information, the permittee shall call in the previous day's landings to the dealer contact designated on the permit.

(B)          submit the required form set forth in Part (b)(1)(A) of this Rule to the Division upon request or no later than five days after the close of the season for the fishery permitted;

(C)          maintain faxes and other related documentation in accordance with 15A NCAC 03I .0114;

(D)          contact the dealer contact designated on the permit daily regardless of whether or not a transaction for the fishery for which a dealer is permitted occurred; and

(E)           record the permanent dealer identification number on the bill of lading or receipt for each transaction or shipment from the permitted fishery.

(2)           Striped Bass Dealer Permit:

(A)          It is unlawful for a fish dealer to possess, buy, sell, or offer for sale striped bass taken from the following areas without first obtaining a Striped Bass Dealer Permit validated for the applicable harvest area:

(i)            Atlantic Ocean;

(ii)           Albemarle Sound Management Area as designated in 15A NCAC 03R .0201; and

(iii)          the Joint and Coastal Fishing Waters of the Central/Southern Management Area as designated in 15A NCAC 03R .0201.

(B)          No permittee shall possess, buy, sell, or offer for sale striped bass taken from the harvest areas opened by proclamation without having a North Carolina Division of Marine Fisheries issued valid tag for the applicable area affixed through the mouth and gill cover, or, in the case of striped bass imported from other states, a similar tag that is issued for striped bass in the state of origin. North Carolina Division of Marine Fisheries striped bass tags shall not be bought, sold, offered for sale, or transferred. Tags shall be obtained at the North Carolina Division of Marine Fisheries Offices. The Division of Marine Fisheries shall specify the quantity of tags to be issued based on historical striped bass landings. It is unlawful for the permittee to fail to surrender unused tags to the Division upon request.

(3)           Albemarle Sound Management Area for River Herring Dealer Permit: It is unlawful to possess, buy, sell, or offer for sale river herring taken from the Albemarle Sound Management Area for River Herring as defined in 15A NCAC 03R .0202 without first obtaining an Albemarle Sound Management Area for River Herring Dealer Permit.

(4)           Atlantic Ocean Flounder Dealer Permit:

(A)          It is unlawful for a fish dealer to allow vessels holding a valid License to Land Flounder from the Atlantic Ocean to land more than 100 pounds of flounder from a single transaction at their licensed location during the open season without first obtaining an Atlantic Ocean Flounder Dealer Permit. The licensed location shall be specified on the Atlantic Ocean Flounder Dealer Permit and only one location per permit shall be allowed.

(B)          It is unlawful for a fish dealer to possess, buy, sell, or offer for sale more than 100 pounds of flounder from a single transaction from the Atlantic Ocean without first obtaining an Atlantic Ocean Flounder Dealer Permit.

(5)           Black Sea Bass North of Cape Hatteras Dealer Permit: It is unlawful for a fish dealer to purchase or possess more than 100 pounds of black sea bass taken from the Atlantic Ocean north of Cape Hatteras (35° 15.0321' N) per day per commercial fishing operation during the open season unless the dealer has a Black Sea Bass North of Cape Hatteras Dealer Permit.

(6)           Spiny Dogfish Dealer Permit: It is unlawful for a fish dealer to purchase or possess more than 100 pounds of spiny dogfish per day per commercial fishing operation unless the dealer has a Spiny Dogfish Dealer Permit.

(c)  Blue Crab Shedding Permit: It is unlawful to possess more than 50 blue crabs in a shedding operation without first obtaining a Blue Crab Shedding Permit from the Division of Marine Fisheries.

(d)  Permit to Waive the Requirement to Use Turtle Excluder Devices in the Atlantic Ocean:

(1)           It is unlawful to trawl for shrimp in the Atlantic Ocean without Turtle Excluder Devices installed in trawls within one nautical mile of the shore from Browns Inlet (34° 35.7000' N latitude) to Rich's Inlet (34° 17.6000' N latitude) without a valid Permit to Waive the Requirement to Use Turtle Excluder Devices in the Atlantic Ocean when allowed by proclamation as set forth in 15A NCAC 03I .0107 from April 1 through November 30.

(2)           It is unlawful to tow a shrimp trawl net for more than 55 minutes from April 1 through October 31 and 75 minutes from November 1 through November 30 in the area described in Subparagraph (d)(1) of this Rule when working under this permit. Tow time begins when the doors enter the water and ends when the doors exit the water.

(3)           It is unlawful to fail to empty the contents of each net at the end of each tow.

(4)           It is unlawful to refuse to take observers upon request by the Division of Marine Fisheries or the National Oceanic and Atmospheric Administration Fisheries.

(5)           It is unlawful to fail to report any sea turtle captured. Reports shall be made within 24 hours of the capture to the Marine Patrol Communications Center by phone. All turtles taken incidental to trawling shall be handled and resuscitated in accordance with requirements specified in 50 Code of Federal Regulations (CFR) 223.206. 50 CFR 223.206 is hereby incorporated by reference, including subsequent amendments and editions. A copy of the reference materials can be found at http://www.ecfr.gov/cgi-bin/text-idx?SID=9088932317c242b91d6a87a47b6bda54&mc=true&tpl=/ecfrbrowse/Title50/50tab_02.tpl free of charge.

(e)  Pound Net Set Permit: Rule 15A NCAC 03J .0505 sets forth the specific conditions for pound net set permits.

(f)  Aquaculture Operation Permit and Aquaculture Collection Permit:

(1)           It is unlawful to conduct aquaculture operations utilizing marine and estuarine resources without first securing an Aquaculture Operation Permit from the Fisheries Director.

(2)           It is unlawful:

(A)          to take marine and estuarine resources from Coastal Fishing Waters for aquaculture purposes without first obtaining an Aquaculture Collection Permit from the Fisheries Director;

(B)          to sell, or use for any purpose not related to North Carolina aquaculture, marine and estuarine resources taken under an Aquaculture Collection Permit; and

(C)          to fail to submit to the Fisheries Director an annual report due on December 1 of each year on the form provided by the Division the amount and disposition of marine and estuarine resources collected under authority of an Aquaculture Collection Permit.

(3)           Lawfully permitted shellfish relaying activities authorized by 15A NCAC 03K .0103 and .0104 are exempt from requirements to have an Aquaculture Operation Permit or Aquaculture Collection Permit issued by the Fisheries Director.

(4)           Aquaculture Operation Permits and Aquaculture Collection Permits shall be issued or renewed on a calendar year basis.

(5)           It is unlawful to fail to provide the Division of Marine Fisheries with a listing of all designees acting under an Aquaculture Collection Permit at the time of application.

(g)  Scientific or Educational Activity Permit:

(1)           It is unlawful for institutions or agencies seeking exemptions from license, rule, proclamation, or statutory requirements to collect, hold, culture, or exhibit for scientific or educational purposes any marine or estuarine species without first obtaining a Scientific or Educational Activity Permit.

(2)           The Scientific or Educational Activity Permit shall only be issued for collection methods and possession allowances approved by the Division of Marine Fisheries.

(3)           The Scientific or Educational Activity Permit shall only be issued for approved activities conducted by or under the direction of Scientific or Educational institutions as defined in Rule 15A NCAC 03I .0101.

(4)           It is unlawful for the responsible party issued a Scientific or Educational Activity Permit to fail to submit an annual report on collections and, if authorized, sales to the Division of Marine Fisheries due on December 1 of each year unless otherwise specified on the permit. The reports shall be filed on forms provided by the Division. Scientific or Educational Activity permits shall be issued on a calendar year basis.

(5)           It is unlawful to sell marine or estuarine species taken under a Scientific or Educational Activity Permit without:

(A)          the required license for such sale;

(B)          an authorization stated on the permit for such sale; and

(C)          providing the information required in Rule 15A NCAC 03I .0114 if the sale is to a licensed fish dealer.

(6)           It is unlawful to fail to provide the Division of Marine Fisheries a listing of all designees acting under a Scientific or Educational Activity Permit at the time of application.

(7)           The permittee or designees utilizing the permit shall call the Division of Marine Fisheries Communications Center at 800-682-2632 or 252-726-7021 not later than 24 hours prior to use of the permit, specifying activities and location.

(h)  Under Dock Oyster Culture Permit:

(1)           It is unlawful to cultivate oysters in containers under docks for personal consumption without first obtaining an Under Dock Oyster Culture Permit.

(2)           An Under Dock Oyster Culture Permit shall be issued only in accordance with provisions set forth in G.S. 113-210(c).

(3)           The applicant shall complete and submit an examination, with a minimum of 70 percent correct answers, based on an educational package provided by the Division of Marine Fisheries pursuant to G.S. 113-210(j). The examination demonstrates the applicant's knowledge of:

(A)          the application process;

(B)          permit criteria;

(C)          basic oyster biology and culture techniques;

(D)          shellfish harvest area closures due to pollution;

(E)           safe handling practices;

(F)           permit conditions; and

(G)          permit revocation criteria.

(4)           Action by an Under Dock Oyster Culture Permit holder to encroach on or usurp the legal rights of the public to access public trust resources in Coastal Fishing Waters shall result in permit revocation.

(i)  Atlantic Ocean Striped Bass Commercial Gear Permit:

(1)           It is unlawful to take striped bass from the Atlantic Ocean in a commercial fishing operation without first obtaining an Atlantic Ocean Striped Bass Commercial Gear Permit.

(2)           It is unlawful to use a single Standard Commercial Fishing License, including assignments, to obtain more than one Atlantic Ocean Striped Bass Commercial Gear Permit during a license year.

(j)  Coastal Recreational Fishing License Exemption Permit:

(1)           It is unlawful for the responsible party seeking exemption from recreational fishing license requirements for eligible individuals to conduct an organized fishing event held in Joint or Coastal Fishing Waters without first obtaining a Coastal Recreational Fishing License Exemption Permit.

(2)           The Coastal Recreational Fishing License Exemption Permit shall only be issued for recreational fishing activity conducted solely for the participation and benefit of one of the following groups of eligible individuals:

(A)          individuals with physical or mental limitations;

(B)          members of the United States Armed Forces and their dependents, upon presentation of a valid military identification card;

(C)          individuals receiving instruction on recreational fishing techniques and conservation practices from employees of state or federal marine or estuarine resource management agencies, or instructors affiliated with educational institutions; and

(D)          disadvantaged youths as set forth in U.S. Code 42 12511.

For purposes of this Paragraph, educational institutions include high schools and other secondary educational institutions.

(3)           The Coastal Recreational Fishing License Exemption Permit is valid for the date, time, and physical location of the organized fishing event for which the exemption is granted and the duration of the permit shall not exceed one year from the date of issuance.

(4)           The Coastal Recreational Fishing License Exemption Permit shall only be issued when all of the following, in addition to the information required in 15A NCAC 03O .0501, is submitted to the Fisheries Director, in writing, at least 30 days prior to the event:

(A)          the name, date, time, and physical location of the event;

(B)          documentation that substantiates local, state, or federal involvement in the organized fishing event, if applicable;

(C)          the cost or requirements, if any, for an individual to participate in the event; and

(D)          an estimate of the number of participants.

(k)  Permit for Weekend Trawling for Live Shrimp:

(1)           It is unlawful to take shrimp with trawls from 9:00 p.m. on Friday through 12:00 p.m. (noon) on Saturday without first obtaining a Permit for Weekend Trawling for Live Shrimp.

(2)           It is unlawful for a holder of a Permit for Weekend Trawling for Live Shrimp to use trawls from 12:01 p.m. on Saturday through 4:59 p.m. on Sunday.

(3)           It is unlawful for a permit holder during the timeframe specified in Subparagraph (k)(1) of this Rule to:

(A)          use trawl nets to take live shrimp except from areas open to the harvest of shrimp with trawls;

(B)          take shrimp with trawls that have a combined headrope length of greater than 40 feet in Internal Coastal Waters;

(C)          possess more than one gallon of dead shrimp (heads on) per trip;

(D)          fail to have a functioning live bait tank or a combination of multiple functioning live bait tanks with aerator(s) and/or circulating water, with a minimum combined tank capacity of 50 gallons; and

(E)           fail to call the Division of Marine Fisheries Communications Center at 800-682-2632 or 252-726-7021 prior to each weekend use of the permit, specifying activities and location.

 

History Note:        Authority G.S. 113-134; 113-169.1; 113-169.3; 113-182; 113-210; 143B-289.52;

Temporary Adoption Eff. September 1, 2000; August 1, 2000; May 1, 2000;

Eff. April 1, 2001;

Amended Eff. May 1, 2017; May 1, 2015; April 1, 2014; April 1, 2009; July 1, 2008; January 1, 2008; September 1, 2005; October 1, 2004; August 1, 2004; August 1, 2002.

 

15a ncac 03o .0504      SUSPENSION/REVOCATION OF PERMITS

(a)  For violation of specific permit conditions (as specified on the permit), permits may be suspended or revoked according to the following schedule:

(1)           violation of one specific condition in a three year period, permit shall be suspended for 10 days;

(2)           violation of two specific conditions in a three year period, permits shall be suspended for 30 days;

(3)                violation of three specific conditions in a three year period, permits shall be revoked for a period not less than six months.

If the permit condition violated is the refusal to provide information upon request by Division staff, either by telephone, in writing or in person, the Fisheries Director may suspend the permit.  Such permit may be reinstated 10 days after the requested information is provided.

(b)  All permits will be suspended or revoked when the permittee's license privilege has been suspended or revoked as set out in G.S. 113-171.  The duration of the suspension or revocation shall be the same as the license suspension or revocation.  In the event the person makes application for a new permit during any period of license suspension, no new permit will be issued during the suspension period.  In case of revocation of license privileges, the minimum waiting period before application for a new permit to be considered will be six months.

(c)  Permit designees shall not be permitted to participate in a permit operation during any period they are under license suspension or revocation.

(d)  Upon service of a notice of suspension or revocation of a permit, it is unlawful to fail to surrender any permit so suspended or revoked.

 

History Note:        Authority G.S. 113-134; 143B-289.52; S.L. 2010-145;

Temporary Adoption Eff. May 1, 2000;

Eff. April 1, 2001.

 

15A NCAC 03O .0505      FEES

 

History Note:        Authority G.S. 113-134; 113-169.1; 113-169.3; 113-182; 143B-289.52;

Temporary Adoption Eff. August 1, 2000; May 1, 2000;

Temporary Repeal Eff. September 1, 2000;

Temporary Rule Expired April 13, 2001.

 

15a ncac 03o .0506      SPECIAL PERMIT REQUIRED FOR SPECIFIC MANAGEMENT PURPOSES

The Fisheries Director may, by proclamation, require individuals taking marine and estuarine resources regulated by the Marine Fisheries Commission, to obtain a special permit.

 

History Note:        Authority G.S. 113-134; 113-170.3; 113-182; 113-221; 143B-289.52;

Temporary Adoption Eff. May 1, 2000;

Eff. April 1, 2001.