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Wildlife Petition- a slow death, but still dead

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    Posted: 11 February 2019 at 4:42pm

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From: Hollis, Carrie  Sent: Friday, January 4, 2019 3:38 PM To: Murphey, Steve <steve.murphey@ncdenr.gov>; Nicholson, John A. <John.Nicholson@ncdenr.gov>; Batherson, John G <John.Batherson@ncdenr.gov>; Everett, Jennifer <jennifer.everett@ncdenr.gov>; Blum, Catherine <catherine.blum@ncdenr.gov>; Mcinerny, Stephanie <stephanie.mcinerny@ncdenr.gov>; Stemle, Adam T <Adam.Stemle@ncdenr.gov> Cc: Masich, Molly <molly.masich@oah.nc.gov>; McGhee, Dana <dana.McGhee@oah.nc.gov>; Grozav, Anca <Anca.Grozav@osbm.nc.gov>; Walker, Kristin L <kristin.walker@osbm.nc.gov>; McRee, Lanier T <lanier.mcree@osbm.nc.gov> Subject: NCWF Petition for Rulemaking, 15A NCAC 03I .0101; 15A NCAC 03L .0101 and .0103; 15A NCAC 03M .0523; 15A NCAC 03M .0524; 15A NCAC 03N .0105; and 15A NCAC 03R .0105
 
Good afternoon,
 
OSBM has reviewed the fiscal note of the proposed changes to rules 15A NCAC 03I .0101; 15A NCAC 03L .0101 and .0103; 15A NCAC 03M .0523; 15A NCAC 03M .0524; 15A NCAC 03N .0105; and 15A NCAC 03R .0105, which were submitted via public petition for rulemaking to the Marine Fisheries Commission. OSBM reviewed the fiscal note in accordance with G.S. 150B-21.4 and with E.O 70 from 10/21/2010 as amended by E.O. 48 from 4/9/2014. In accordance with 150B-21.4(a), OSBM has determined that sufficient state funds are not available to implement the proposed rule changes without undue detriment to the agency’s existing activities. 
 
OSBM did not review the rules for certification against the regulatory principles set forth in G.S. 150B 91.1(a)(2), (5), and (6). These are petitioned rules and they are not considered the agency’s rules. Therefore G.S. 150B 19.1 does not apply. 
 
The .pdf file of the rule impact analysis (attached) will be posted on our website at the following URL (please allow for some time):  https://files.nc.gov/ncosbm/documents/files/DEQ_2019-01-04.pdf 
 
Regards, -Carrie
 
Carrie Hollis Economic Analyst NC Office of State Budget and Management 919 807 4757    office carrie.hollis@osbm.nc.gov
 E-mail correspondence to and from this address may be subject to the North Carolina Public Records Law (GS 132) and may be disclosed to third parties by an authorized state official.
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Post Options Post Options   Thanks (0) Thanks(0)   Quote j.willis Quote  Post ReplyReply Direct Link To This Post Posted: 11 February 2019 at 5:07pm
Does Ms. Carrie suggest how much in "sufficient state funds are not available" would be needed to implement the rule changes?

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Post Options Post Options   Thanks (0) Thanks(0)   Quote chriselk Quote  Post ReplyReply Direct Link To This Post Posted: 11 February 2019 at 7:23pm
That was my question.  I would like to see the number.  It probably pales in comparison to the impact of recreational fishing, and the loss of recreational fishing that accompanies such activities.

One million?  Two million?  Ten million.  These are insignificant numbers compared to the 4 billion in recreational impacts to the economy.  

Oh the hidden costs of $2 a pound shrimp.

Show me the money, Ms. Carrie.


Edited by chriselk - 11 February 2019 at 7:24pm
The above comments are my personal opinion and do not represent those of any organizations or agencies I may be a member of.
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Post Options Post Options   Thanks (0) Thanks(0)   Quote 23Mako Quote  Post ReplyReply Direct Link To This Post Posted: 12 February 2019 at 11:03am
So when will a lawsuit be filed?
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Rick Quote  Post ReplyReply Direct Link To This Post Posted: 12 February 2019 at 11:24am
Originally posted by 23Mako 23Mako wrote:

So when will a lawsuit be filed?
 

For you guys that have stepped up to the plate over the last two years and made donations to the NCWF-

First, thank you.

Second, you need to be voicing your desire to the NCWF that they move forward in the courts.

Until the Division, Department and Governor understand that the recreational/conservation side is going to sue them for lack of adequate management, then the NCFA is going to keep getting it's way suing them to stop proper management.

If they know they are going to get sued either way, then you would think they would do the right thing that is defendable. 




Edited by Rick - 12 February 2019 at 11:29am
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Post Options Post Options   Thanks (0) Thanks(0)   Quote kshivar Quote  Post ReplyReply Direct Link To This Post Posted: 12 February 2019 at 11:48am
The State will attempt to settle if sued as opposed to defending. So some good should definitely come of it. When it’s filed i’m contributing to the cause. I’ve been advocating a suit for months.
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Rick Quote  Post ReplyReply Direct Link To This Post Posted: 12 February 2019 at 12:16pm

For those interested-

§ 150B-21.4.  Fiscal and regulatory impact analysis on rules.

(a)        State Funds. - Before an agency publishes in the North Carolina Register the proposed text of a permanent rule change that would require the expenditure or distribution of funds subject to the State Budget Act, Chapter 143C of the General Statutes, it must submit the text of the proposed rule change, an analysis of the proposed rule change, and a fiscal note on the proposed rule change to the Office of State Budget and Management and obtain certification from the Office of State Budget and Management that the funds that would be required by the proposed rule change are available. The fiscal note must state the amount of funds that would be expended or distributed as a result of the proposed rule change and explain how the amount was computed. The Office of State Budget and Management must certify a proposed rule change if funds are available to cover the expenditure or distribution required by the proposed rule change.

(a1)      DOT Analyses. - In addition to the requirements of subsection (a) of this section, any agency that adopts a rule affecting environmental permitting of Department of Transportation projects shall conduct an analysis to determine if the rule will result in an increased cost to the Department of Transportation. The analysis shall be conducted and submitted to the Board of Transportation when the agency submits the notice of text for publication. The agency shall consider any recommendations offered by the Board of Transportation prior to adopting the rule. Once a rule subject to this subsection is adopted, the Board of Transportation may submit any objection to the rule it may have to the Rules Review Commission. If the Rules Review Commission receives an objection to a rule from the Board of Transportation no later than 5:00 P.M. of the day following the day the Commission approves the rule, then the rule shall only become effective as provided in G.S. 150B-21.3(b1).

(b)        Local Funds. - Before an agency publishes in the North Carolina Register the proposed text of a permanent rule change that would affect the expenditures or revenues of a unit of local government, it must submit the text of the proposed rule change and a fiscal note on the proposed rule change to the Office of State Budget and Management as provided by G.S. 150B-21.26, the Fiscal Research Division of the General Assembly, the North Carolina Association of County Commissioners, and the North Carolina League of Municipalities. The fiscal note must state the amount by which the proposed rule change would increase or decrease expenditures or revenues of a unit of local government and must explain how the amount was computed.

(b1)      Substantial Economic Impact. - Before an agency publishes in the North Carolina Register the proposed text of a permanent rule change that would have a substantial economic impact and that is not identical to a federal regulation that the agency is required to adopt, the agency shall prepare a fiscal note for the proposed rule change and have the note approved by the Office of State Budget and Management. The agency must also obtain from the Office a certification that the agency adhered to the regulatory principles set forth in G.S. 150B-19.1(a)(2), (5), and (6). The agency may request the Office of State Budget and Management to prepare the fiscal note only after, working with the Office, it has exhausted all resources, internal and external, to otherwise prepare the required fiscal note. If an agency requests the Office of State Budget and Management to prepare a fiscal note for a proposed rule change, that Office must prepare the note within 90 days after receiving a written request for the note. If the Office of State Budget and Management fails to prepare a fiscal note within this time period, the agency proposing the rule change shall prepare a fiscal note. A fiscal note prepared in this circumstance does not require approval of the Office of State Budget and Management.

If an agency prepares the required fiscal note, the agency must submit the note to the Office of State Budget and Management for review. The Office of State Budget and Management shall review the fiscal note within 14 days after it is submitted and either approve the note or inform the agency in writing of the reasons why it does not approve the fiscal note. After addressing these reasons, the agency may submit the revised fiscal note to that Office for its review. If an agency is not sure whether a proposed rule change would have a substantial economic impact, the agency shall ask the Office of State Budget and Management to determine whether the proposed rule change has a substantial economic impact. Failure to prepare or obtain approval of the fiscal note as required by this subsection shall be a basis for objection to the rule under G.S. 150B-21.9(a)(4).

As used in this subsection, the term "substantial economic impact" means an aggregate financial impact on all persons affected of at least one million dollars ($1,000,000) in a 12-month period. In analyzing substantial economic impact, an agency shall do the following:

(1)        Determine and identify the appropriate time frame of the analysis.

(2)        Assess the baseline conditions against which the proposed rule is to be measured.

(3)        Describe the persons who would be subject to the proposed rule and the type of expenditures these persons would be required to make.

(4)        Estimate any additional costs that would be created by implementation of the proposed rule by measuring the incremental difference between the baseline and the future condition expected after implementation of the rule. The analysis should include direct costs as well as opportunity costs. Cost estimates must be monetized to the greatest extent possible. Where costs are not monetized, they must be listed and described.

(5)        For costs that occur in the future, the agency shall determine the net present value of the costs by using a discount factor of seven percent (7%).

(b2)      Content. - A fiscal note required by subsection (b1) of this section must contain the following:

(1)        A description of the persons who would be affected by the proposed rule change.

(2)        A description of the types of expenditures that persons affected by the proposed rule change would have to make to comply with the rule and an estimate of these expenditures.

(3)        A description of the purpose and benefits of the proposed rule change.

(4)        An explanation of how the estimate of expenditures was computed.

(5)        A description of at least two alternatives to the proposed rule that were considered by the agency and the reason the alternatives were rejected. The alternatives may have been identified by the agency or by members of the public.

(c)        Errors. - An erroneous fiscal note prepared in good faith does not affect the validity of a rule.




Edited by Rick - 12 February 2019 at 12:22pm
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Post Options Post Options   Thanks (0) Thanks(0)   Quote j.willis Quote  Post ReplyReply Direct Link To This Post Posted: 20 February 2019 at 4:49am
Only in North Carolina.....

http://portal.ncdenr.org/c/document_library/get_file?uuid=95cda585-578e-4648-828d-94c0c794bac6&groupId=38337

The start of an email from Southern Environmental Law Center to MFC Chairman Rob Bizzell on February 19, 2019 (31 pages):

February 19, 2019
 
Via email
Mr. Rob Bizzell Chairman, N.C. Marine Fisheries Commission
 3441 Arendell Street
 Morehead City, NC 28557
 r.bizzell.mfc@ncdenr.gov

 Re: Fiscal analysis for the North Carolina Wildlife Federation’s Petition for Rulemaking 

Dear Chairman Bizzell, 

On behalf of the North Carolina Wildlife Federation, I am writing to express disappointment about the Division of Marine Fisheries’ handling of the Federation’s petition for rulemaking. Over two years ago, the Marine Fisheries Commission approved the North Carolina Wildlife Federation’s petition for rulemaking that would overhaul the outdated, ineffective management strategies currently in place in the shrimp trawl fishery with research-based, modern rules for this fishery (“proposed rules”). Since that time, the Commission and the public have waited patiently for the Division of Marine Fisheries to complete its evaluation of the fiscal and economic impacts of the proposed rules so that the rulemaking process can begin and the Commission can solicit public comment on the proposed rules. After two years of closed door conversations, the Division produced a final fiscal note that defies logic, contradicts basic principles of fisheries management, and is unmoored to law. Worse still, deferring entirely to the Division’s outlandish estimates of impacts to its budget, the Office of State Budget and Management (“OSBM”) declined to certify the fiscal note. 
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Rick Quote  Post ReplyReply Direct Link To This Post Posted: 20 February 2019 at 9:06am

Thanks for sharing j.willis.

I'm glad we have the NCWF working for the resource.  Please support them.
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Post Options Post Options   Thanks (0) Thanks(0)   Quote bakesta Quote  Post ReplyReply Direct Link To This Post Posted: 20 February 2019 at 10:59am
This the end of the letter.  Hope something comes of it - other than more stalling by the DMF.

V. Conclusion 

What transpired over the last two years has been nothing short of a charade designed to shut out the Federation and the public and advance the position of the Division over the wishes of the majority of the Marine Fisheries Commission. In the process, the Division has damaged its credibility as an objective and neutral agency and threatened the public trust resources the Division and Commission are obligated to protect. 
While some current commissioners may disagree with the petition itself, it is undeniable that the Division has attempted to thwart the Commission’s authority with these procedural shenanigans. The Commission must act on the petition; this is its statutory duty. As noted above, the Commission may: 1) vote to disapprove the flawed fiscal note and send the Division back to the drawing board to correct the myriad errors in its analysis, or 2) vote to publish the flawed fiscal note and notice of proposed text of the proposed rules in the N.C. Register and solicit public comments on the proposed rules and fiscal note, as provided for under the N.C. Administrative Procedure Act. The decision about how to move forward is the Commission’s alone.
"Do the right thing. It will gratify some people and astonish the rest." --- Mark Twain
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Post Options Post Options   Thanks (0) Thanks(0)   Quote kshivar Quote  Post ReplyReply Direct Link To This Post Posted: 20 February 2019 at 1:09pm
i just send a nice donation to NCWF and joined. i gave an earful on the petition in a respectful manner and i've been appointed to an AC(surprise there). The tide's rising so let's ride it.  
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Post Options Post Options   Thanks (0) Thanks(0)   Quote Ray Brown Quote  Post ReplyReply Direct Link To This Post Posted: 21 February 2019 at 1:16pm
Hopefully the DMF's handling of the NCWF's petition becomes the catalyst to finally get the lawsuit we have all known we needed for such a long time.

Sadly, any confidence I had in the words of Roy Cooper and those individuals who came with him is now gone. They choose to treat this politically and not scientifically just as those that came before them.

At some point, perhaps our children will finally conclude that the right thing should be done on many issues because they are the right things to do. Our generation has truly ruined a good thing for all by being spineless in our attempts to control greed and misuse of our public resources, be they natural resources or tax dollars. We planned for today and enjoyed it and ignored tomorrow.   We are now here in many ways and it shows we didn't plan.

It is too bad you can't sue elected officials or state employees individually for failure to be the stewards of resources they took an oath to protect.
I am a native of NC. The "bycatch captial of the east coast of the US". Our legislature lets us kill more fish for no reason than any other Atlantic Coast state. I hope they are proud.
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Post Options Post Options   Thanks (0) Thanks(0)   Quote j.willis Quote  Post ReplyReply Direct Link To This Post Posted: 21 February 2019 at 1:19pm
So true, Ray; so true.
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Post Options Post Options   Thanks (0) Thanks(0)   Quote kshivar Quote  Post ReplyReply Direct Link To This Post Posted: 21 February 2019 at 5:02pm
Amen Ray.
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