State Codes and Statutes

State Codes and Statutes

Statutes > North-carolina > Chapter_143B > GS_143B-289_53

§ 143B‑289.53. Marine Fisheries Commission – quasi‑judicial powers; procedures.

(a)        With respect to those matters within its jurisdiction, theMarine Fisheries Commission shall exercise quasi‑judicial powers inaccordance with the provisions of Chapter 150B of the General Statutes. Thissection and any rules adopted by the Marine Fisheries Commission shall governthe following proceedings:

(1)        Exceptions to recommended decisions in contested cases shallbe filed with the Secretary within 30 days of the receipt by the Secretary ofthe official record from the Office of Administrative Hearings, unlessadditional time is allowed by the Chair of the Commission.

(2)        Oral arguments by the parties may be allowed by the Chair ofthe Commission upon request of the parties.

(3)        Deliberations of the Commission shall be conducted in itspublic meeting unless the Commission determines that consultation with itscounsel should be held in a closed session pursuant to G.S. 143‑318.11.

(b)        The final agency decision in contested cases that arise fromcivil penalty assessments shall be made by the Commission. In the evaluation ofeach violation, the Commission shall recognize that harm to the marine andestuarine resources within its jurisdiction, as described in G.S. 113‑132,arising from the violation of a statute or rule enacted or adopted to protectthose resources may be immediately observed through damaged resources or may beincremental or cumulative with no damage that can be immediately observed ordocumented. Penalties up to the maximum authorized may be based on any one orcombination of the following factors:

(1)        The degree and extent of harm to the marine and estuarineresources within the jurisdiction of the Commission, as described in G.S. 113‑132;to the public health; or to private property resulting from the violation.

(2)        The frequency and gravity of the violation.

(3)        The cost of rectifying the damage.

(4)        Whether the violation was committed willfully orintentionally.

(5)        The prior record of the violator in complying or failing tocomply with programs over which the Marine Fisheries Commission has regulatoryauthority.

(6)        The cost to the State of the enforcement procedures.

(c)        The Chair shall appoint a Committee on Civil PenaltyRemissions from the members of the Commission. No member of the Committee onCivil Penalty Remissions may hear or vote on any matter in which the member hasan economic interest. The Committee on Civil Penalty Remissions shall make thefinal agency decision on remission requests. In determining whether a remissionrequest will be approved, the Committee shall consider the recommendation ofthe Secretary and the following factors:

(1)        Whether one or more of the civil penalty assessment factorsin subsection (b) of this section were wrongly applied to the detriment of thepetitioner.

(2)        Whether the violator promptly abated continuingenvironmental damage resulting from the violation.

(3)        Whether the violation was inadvertent.

(4)        Whether the violator had been assessed civil penalties for anyprevious violations.

(5)        Whether payment of the civil penalty will prevent paymentfor the remaining necessary remedial actions.

(d)        The Committee on Civil Penalty Remissions may remit theentire amount of the penalty only when the violator has not been assessed civilpenalties for previous violations and when payment of the civil penalty willprevent payment for the remaining necessary remedial actions.

(e)        If any civil penalty has not been paid within 30 days afterthe final agency decision or court order has been served on the violator, theSecretary of Environment and Natural Resources shall request the AttorneyGeneral to institute a civil action in the superior court of any county inwhich the violator resides or has his or its principal place of business torecover the amount of the assessment.

(f)         The Secretary may delegate his powers and duties under thissection to the Fisheries Director. (1997‑400, s. 2.1; 1997‑443, s. 11A.119(a).)