GENERAL ASSEMBLY OF NORTH CAROLINA

 SESSION 2011

S                                                                                                                                                     1

SENATE BILL 850

Short Title:        Legislative Oversight of Fish & Wildlife Mgmt.		(Public)
Sponsors:	Senators Brown, Goolsby, Rabon; and Jackson.
Referred to:	Agriculture/Environment/Natural Resources.

May 22, 2012

A BILL TO BE ENTITLED

AN ACT to establish the Joint legislative commission on fish and wildlife.

The General Assembly of North Carolina enacts:

SECTION 1.  The title of Article 12F of Chapter 120 of the General Statutes reads as rewritten:

"Article 12F.

Joint Legislative Commission on Seafood and Aquaculture.Fish and Wildlife."

SECTION 2.  Article 12F of Chapter 120 of the General Statutes is amended by adding three new sections to read:

"§ 120-70.67.  Creation and membership of Joint Legislative Commission on Fish and Wildlife.

(a) The Joint Legislative Commission on Fish and Wildlife is established.

(b) The Commission shall consist of 16 members as follows:

(1) Eight members of the Senate appointed by the President Pro Tempore of the Senate, at least two of whom are members of the minority party.

(2) Eight members of the House of Representatives appointed by the Speaker of the House of Representatives, at least two of whom are members of the minority party.

(c) The President Pro Tempore of the Senate and the Speaker of the House of Representatives shall ensure geographic diversity of membership in making the appointments under subsection (b) of this section.

(d) Terms on the Commission are for two years and begin on the convening of the General Assembly in each odd-numbered year. Members may complete a term of service on the Commission even if they do not seek reelection or are not reelected to the General Assembly, but resignation or removal from service in the General Assembly constitutes resignation or removal from service on the Commission. A member continues to serve until a successor is appointed.

"§ 120-70.68.  Purpose and powers and duties of Commission.

(a) The Joint Legislative Commission on Fish and Wildlife shall exercise legislative oversight over the management of fish and wildlife in the State. In the exercise of this oversight, the Commission may do any of the following:

(1) Monitor and evaluate the programs, policies, and actions of the Marine Fisheries Commission, the Division of Marine Fisheries of the Department of Environment and Natural Resources, the Wildlife Resources Commission, and of any other board, commission, department, or agency of the State or local government that manages fish and wildlife.

(2) Review and evaluate existing and proposed State statutes and rules affecting the management of fish and wildlife in the State and determine whether any modification of these statutes or rules is in the public interest.

(3) Monitor changes in federal law and court decisions affecting the management of fish and wildlife in the State.

(4) Monitor and evaluate fishing- and hunting-related industries in the State and study measures to promote these industries.

(5) Study any other matters related to the management of fish and wildlife in the State that the Commission considers necessary to fulfill its mandate.

(b) The Commission may make reports and recommendations, including proposed legislation, to the General Assembly from time to time as to any matter relating to its oversight and the powers and duties set out in this section.

"§ 120-70.69.  Organization of Commission.

(a) The President Pro Tempore of the Senate and the Speaker of the House of Representatives shall each designate a cochair of the Joint Legislative Commission on Fish and Wildlife. The Commission may meet at any time upon the call of either cochair, whether or not the General Assembly is in session.

(b) A quorum of the Commission is eight members.

(c) While in the discharge of its official duties, the Commission has the powers of a joint committee under G.S. 120-19 and G.S. 120-19.1 through 120-19.4. The Commission may contract for consultants or hire employees in accordance with G.S. 120-32.02.

(d) From funds available to the General Assembly, the Legislative Services Commission shall allocate monies to fund the Joint Legislative Commission on Fish and Wildlife. Members of the Commission receive subsistence and travel expenses as provided in G.S. 120-3.1. The Legislative Services Commission, through the Legislative Services Officer, shall assign professional staff to assist the Commission in its work. Upon the direction of the Legislative Services Commission, the Supervisors of Clerks of the Senate and of the House of Representatives shall assign clerical staff to the Commission. The expenses for clerical employees shall be borne by the Commission."

SECTION 3.  Section 1.2(a) of S.L. 2011-291 reads as rewritten:

"SECTION 1.2.(a)  The duties of the following committees and commissions are transferred to the Joint Legislative Commission on Governmental Operations:

(1)        Joint Legislative Oversight Committee on Capital Improvements.

(2)        Joint Legislative Commission on Future Strategies for North Carolina.

(3)        Joint Select Committee on Low-Level Radioactive Waste.

(4)        Legislative Committee on New Licensing Boards.

(5) Joint Legislative Commission on Seafood and Aquaculture.

(6)        Joint Legislative Utility Review Commission."

SECTION 4.  G.S. 120-76 reads as rewritten:

"§ 120-76.  Powers and duties of the Commission.

The Commission shall have the following powers:

(1)        To conduct program evaluation studies of the various components of State agency activity as they relate to:

a.         Service benefits of each program relative to expenditures;

b.         Achievement of program goals;

c.         Use of indicators by which the success or failure of a program may be gauged; and

d.         Conformity with legislative intent.

(2)        To study legislation which would result in new programs with statewide implications for feasibility and need. These studies may be jointly conducted with the Fiscal Research Division of the Legislative Services Commission.

(3)        To study on a continuing basis the implementation of State government reorganization with respect to:

a.         Improvements in administrative structure, practices and procedures;

b.         The relative effectiveness of centralization and decentralization of management decisions for agency operation;

c.         Opportunities for effective citizen participation; and

d.         Broadening of career opportunities for professional staff.

(4)        To make such studies and reports of the operations and functions of State government as it deems appropriate or upon petition by resolution of either the Senate or the House of Representatives.

(5)        To produce routine written reports of findings for general legislative and public distribution. Special attention shall be given to the presentation of findings to the appropriate committees of the Senate and the House of Representatives. If findings arrived at during a study have a potential impact on either the finance or appropriations deliberations, such findings shall immediately be presented to the committees. Such reports shall contain recommendations for appropriate executive action and when legislation is considered necessary to effect change, draft legislation for that purpose may be included. Such reports as are submitted shall include but not be limited to the following matters:

a.         Ways in which the agencies may operate more economically and efficiently;

b.         Ways in which agencies can provide better services to the State and to the people; and

c.         Areas in which functions of State agencies are duplicative, overlapping, or failing to accomplish legislative objectives, or for any other reason should be redefined or redistributed.

(6)        To devise a system, in cooperation with the Fiscal Research Division of the Legislative Services Commission, whereby all new programs authorized by the General Assembly incorporate an evaluation component. The results of such evaluations may be made to the Appropriations Committees at the beginning of each regular session.

(7)        To evaluate and approve or deny requests from the Department of Transportation regarding the funding of federally eligible construction projects as provided in the fourth paragraph of G.S. 136-44.2.

(8)        The Joint Legislative Commission on Governmental Operations shall be consulted by the Governor before the Governor does any of the following:

a.         Repealed by Session Laws 2007-117, s. 2, effective July 1, 2007.

b.         Authorizes expenditures in excess of the total requirements of a purpose or program as enacted by the General Assembly and as provided by G.S. 143C-6-4.

c.         Proceeds to reduce programs subsequent to a reduction of ten percent (10%) or more in the federal fund level certified to a department and any subsequent changes in distribution formulas.

d.         Takes extraordinary measures under Article III, Section 5(3) of the Constitution to effect necessary economies in State expenditures required for balancing the budget due to a revenue shortfall, including, but not limited to, the following: loans among funds, personnel freezes or layoffs, capital project reversions, program eliminations, and use of reserves. However, if the Committee fails to meet within 10 calendar days of a request by the Governor for its consultation, the Governor may proceed to take the actions he feels are appropriate and necessary and shall then report those actions at the next meeting of the Commission.

e.         Approves a new capital improvement project funded from gifts, grants, receipts, special funds, self-liquidating indebtedness, and other funds or any combination of funds for the project not specifically authorized by the General Assembly. The budget for each capital project must include projected revenues in an amount not less than projected expenditures.

(9)        To examine, on a continuing basis, capital improvements approved and undertaken for State facilities and institutions and to have oversight over implementation of the six-year capital improvements plan developed pursuant to G.S. 143C-8-5.

(10)      To establish a subcommittee to evaluate the need for any new licensing board by establishing criteria and procedures for reviewing proposed licensing boards. To assure that no new licensing board shall be established unless the following criteria are met:

a.         The unregulated practice of the profession or occupation can substantially harm or endanger the public health, safety, or welfare, and the potential for such harm is recognizable and not remote or dependent upon tenuous argument.

b.         The profession or occupation possesses qualities that distinguish it from ordinary labor.

c.         Practice of the profession or occupation requires specialized skill or training.

d.         A substantial majority of the public does not have the knowledge or experience to evaluate whether the practitioner is competent.

e.         The public is not effectively protected by other means.

f.          Licensure will not have a substantial adverse economic impact upon consumers of the practitioner's goods or services.

(11)      To evaluate the North Carolina Utilities Commission, by doing the following:

a.         Reviewing the actions of the North Carolina Utilities Commission, including the review of its interim and final orders, to the end that the members of the General Assembly may better judge whether these actions serve the best interest of the citizens of North Carolina, individual and corporate.

b.         Inquiring into the role of the North Carolina Utilities Commission, the Public Staff, and the several utility companies in the development of alternate sources of energy.

c.         Submitting evaluations to the General Assembly, from time to time, of the performance of the North Carolina Utilities Commission, the Public Staff, and the various utilities operating in the State. A proposed draft of such evaluations shall be submitted to the North Carolina Utilities Commission, the Public Staff, and the affected public utilities prior to submission to the General Assembly, and the affected entity shall be given an opportunity to be heard before the Commission prior to the completion of the evaluation and its submission to the General Assembly.

(12)      To make reports and recommendations to the General Assembly, from time to time, on matters relating to the powers and duties set out in this section.

(13)      To review and evaluate changes in federal law and regulations, relevant court decisions, and changes in technology affecting any of the duties of the Commission.

(14)      To review and evaluate changes in federal law and regulation, or changes brought about by court actions, as well as changes in technology affecting any of the duties of the Commission, to determine whether the State's laws require modification as a result of those changes.

(15) With regard to seafood and aquaculture:

a. To monitor and study the seafood industry in North Carolina, including studies of the feasibility of increasing the State's production, processing, and marketing of seafood.

b. To study the potential for increasing the role of aquaculture in all regions of the State.

c. To evaluate the feasibility of creating a central permitting office for fishing and aquaculture matters.

d. To evaluate actions of the Division of Marine Fisheries of the Department of Environment and Natural Resources, the Wildlife Resources Commission of the Department of Environment and Natural Resources and of any other State or local government agency as such actions relate to the seafood and aquaculture industries.

e. To make recommendations regarding regulatory matters relating to the seafood and aquaculture industries including, but not limited to evaluating the necessity to substantially increase penalties for trespass and theft of shellfish and other aquaculture products.

f. To review and evaluate changes in federal law and regulations, relevant court decisions, and changes in technology affecting the seafood and aquaculture industries.

g. To review existing and proposed State law and rules affecting the seafood and aquaculture industries and to determine whether any modification of law or rules is in the public interest."

SECTION 5.  G.S. 113-175.6 reads as rewritten:

"§ 113-175.6.  Report.

The Chair of the Marine Fisheries Commission and the Chair of the Wildlife Resources Commission shall jointly submit to the Joint Legislative Commission on Governmental OperationsFish and Wildlife by October 1 of each year a report on the Marine Resources Fund and the Endowment Fund that shall include the source and amounts of all moneys credited to each fund and the purpose and amount of all disbursements from each fund during the prior fiscal year."

SECTION 6.  G.S. 113-182.1 reads as rewritten:

"§ 113-182.1.  Fishery Management Plans.

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

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

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

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

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

(4)        Repealed by Session Laws 2010-13, s. 1, effective June 23, 2010.

(5)        Specify a time period, not to exceed two years from the date of the adoption of the plan, for ending overfishing. This subdivision shall only apply to a plan for a fishery that is not producing a sustainable harvest.

(6)        Specify a time period, not to exceed 10 years from the date of the adoption of the plan, for achieving a sustainable harvest. This subdivision shall not apply if the Fisheries Director determines that the biology of the fish, environmental conditions, or lack of sufficient data make implementing the requirements of this subdivision incompatible with professional standards for fisheries management.

(7)        Include a standard of at least fifty percent (50%) probability of achieving sustainable harvest for the fishery or fisheries. This subdivision shall not apply if the Fisheries Director determines that the biology of the fish, environmental conditions, or lack of sufficient data make implementing the requirements of this subdivision incompatible with professional standards for fisheries management.

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

(c1)      The Department shall consult with the regional advisory committees established pursuant to G.S. 143B-289.57(e) regarding the preparation of each Fishery Management Plan. Before submission of a plan for review by the Joint Legislative Commission on Governmental Operations,Fish and Wildlife, the Department shall review any comment or recommendation regarding the plan that a regional advisory committee submits to the Department within the time limits established in the Schedule for the development and adoption of Fishery Management Plans established by G.S. 143B-289.52. Before the Commission adopts a management measure to implement a plan, the Commission shall review any comment or recommendation regarding the management measure that a regional advisory committee submits to the Commission.

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

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

(e1)      If the Secretary determines that it is in the interest of the long-term viability of a fishery, the Secretary may authorize the Commission to develop temporary management measures to supplement an existing Fishery Management Plan pursuant to this subsection. Development of temporary management measures pursuant to this subsection is exempt from subsections (c), (c1), and (e) of this section and the Priority List, Schedule, and guidance criteria established by the Marine Fisheries Commission under G.S. 143B-289.52. During the next review period for a Fishery Management Plan supplemented pursuant to this subsection, the Commission shall either incorporate the temporary management measures into the revised Fishery Management Plan or the temporary management measures shall expire on the date the revised Fishery Management Plan is adopted.

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

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

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

(2)        Past fishing practices in the fishery.

(3)        Economics of the fishery.

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

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

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

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

(8)        Any other relevant considerations."

SECTION 7.  G.S. 113-200(i) reads as rewritten:

"(i)        Report on Grant Program. - The Sea Grant College Program shall report on the Fishery Resource Grant Program to the Marine Fisheries Commission and the Joint Legislative Commission on Governmental OperationsFish and Wildlife no later than January 1 of each year."

SECTION 8.  G.S. 143B-279.8 reads as rewritten:

"§ 143B-279.8.  Coastal Habitat Protection Plans.

(a)        The Department shall coordinate the preparation of draft Coastal Habitat Protection Plans for critical fisheries habitats. The goal of the Plans shall be the long-term enhancement of coastal fisheries associated with each coastal habitat identified in subdivision (1) of this subsection. The Department shall use the staff of those divisions within the Department that have jurisdiction over marine fisheries, water quality, and coastal area management in the preparation of the Coastal Habitat Protection Plans and shall request assistance from other federal and State agencies as necessary. The plans shall:

(1)        Describe and classify biological systems in the habitats, including wetlands, fish spawning grounds, estuarine or aquatic endangered or threatened species, primary or secondary nursery areas, shellfish beds, submerged aquatic vegetation (SAV) beds, and habitats in outstanding resource waters.

(2)        Evaluate the function, value to coastal fisheries, status, and trends of the habitats.

(3)        Identify existing and potential threats to the habitats and the impact on coastal fishing.

(4)        Recommend actions to protect and restore the habitats.

(b)        Once a draft Coastal Habitat Protection Plan has been prepared, the chairs of the Coastal Resources Commission, the Environmental Management Commission, and the Marine Fisheries Commission shall each appoint two members of the commission he or she chairs to a six-member review committee. The six-member review committee, in consultation with the Department, shall review the draft Plan and may revise the draft Plan on a consensus basis. The draft Plan, as revised by the six-member review committee, shall then be submitted to the Coastal Resources Commission, the Environmental Management Commission, and the Marine Fisheries Commission, each of which shall independently consider the Plan for adoption. If any of the three commissions is unable to agree to any aspect of a Plan, the chair of each commission shall refer that aspect of the Plan to a six-member conference committee to facilitate the resolution of any differences. The six-member conference committee shall be appointed in the same manner as a six-member review committee and may include members of the six-member review committee that reviewed the Plan. Each final Coastal Habitat Protection Plan shall consist of those provisions adopted by all three commissions. The three commissions shall review and revise each Coastal Habitat Protection Plan at least once every five years.

(c)        In carrying out their powers and duties, the Coastal Resources Commission, the Environmental Management Commission, and the Marine Fisheries Commission shall ensure, to the maximum extent practicable, that their actions are consistent with the Coastal Habitat Protection Plans as adopted by the three commissions. The obligation to act in a manner consistent with a Coastal Habitat Protection Plan is prospective only and does not oblige any commission to modify any rule adopted, permit decision made, or other action taken prior to the adoption or revision of the Coastal Habitat Protection Plan by the three commissions. The Coastal Resources Commission, the Environmental Management Commission, and the Marine Fisheries Commission shall adopt rules to implement Coastal Habitat Protection Plans in accordance with Chapter 150B of the General Statutes.

(d)        If any of the three commissions concludes that another commission has taken an action that is inconsistent with a Coastal Habitat Protection Plan, that commission may request a written explanation of the action from the other commission. A commission shall provide a written explanation: (i) upon the written request of one of the other two commissions, or (ii) upon its own motion if the commission determines that it must take an action that is inconsistent with a Coastal Habitat Protection Plan.

(e)        The Coastal Resources Commission, the Environmental Management Commission, and the Marine Fisheries Commission shall report to the Joint Legislative Commission on Governmental OperationsFish and Wildlife and the Environmental Review Commission on progress in developing and implementing the Coastal Habitat Protection Plans, including the extent to which the actions of the three commissions are consistent with the Plans, on or before 1 September of each year.

(f)         The Secretary of Environment and Natural Resources shall report to the Environmental Review Commission and the Joint Legislative Commission on Seafood and Aquaculture [Joint Legislative Commission on Governmental Operations]Fish and Wildlife within 30 days of the completion or substantial revision of each draft Coastal Habitat Protection Plan. The Environmental Review Commission and the Joint Legislative Commission on Governmental OperationsFish and Wildlife shall concurrently review each draft Coastal Habitat Protection Plan within 30 days of the date the draft Plan is submitted by the Secretary. The Environmental Review Commission and the Joint Legislative Commission on Governmental OperationsFish and Wildlife may submit comments and recommendations on the draft Plan to the Secretary within 30 days of the date the draft Plan is submitted by the Secretary."

SECTION 9.  This act becomes effective January 1, 2013.