Commission Agenda Item No. 4
Presenter: Brandi Reeder

Action Commercial Fishing - Individual Fishing Quota (IFQ) Rules
Recommended Adoption of Proposed Rules
November 3, 2016

I.       Executive Summary: This item seeks adoption of a proposed amendment to the Statewide Commercial Fisheries Proclamation to update references to federal laws governing the take and possession of grouper, tilefish, and red snapper under the Individual Fishing Quota (IFQ) system, and to clarify that the provisions of those federal laws apply in state waters.

II.     Discussion:  Under Parks and Wildlife Code, §67.004, the Texas Parks and Wildlife (TPW) Commission is required to establish any limits on the taking, possession, propagation, transportation, importation, exportation, sale, or offering for sale of nongame fish that the department considers necessary to manage the species. The Individual Fishing Quota (IFQ) is a federal regulatory program governing the commercial harvest of certain species of fish in federal waters. Federal rules require a federal permit and an IFQ vessel endorsement for the harvest of Gulf of Mexico Reef Fish, including red snapper, grouper, and tilefish. In 2010, the TPW Commission adopted by reference the provisions of 50 CFR §622.16 and §622.20, in order to eliminate the repetition of voluminous federal regulations in the department’s regulations. In 2013 the National Oceanic and Atmospheric Administration, the federal agency responsible for regulating fisheries resources and habitats in federal waters, nonsubstantively reorganized the provisions of 50 CFR Part 622 (78 FR 22949). As a result of that reorganization, the references to federal rules in 31 TAC §57.994 are inaccurate and should be updated. Additionally, the proposed amendment would add language to clarify that by adopting the federal rules by reference, those rules would be enforceable in state waters.

At the August, 2016 Work Session of the Commission, staff was authorized to publish the proposed rule in the Texas Register for public comment. The proposed rule appeared in the September 30, 2016, issue of the Texas Register (41 TexReg 7682). A summary of public comment on the proposed rule will be presented at the time of the hearing.

III.    Recommendation:  Staff recommends that the TPW Commission adopt the proposed motion:

“The Texas Parks and Wildlife Commission adopts an amendment to §57.994, concerning Individual Fishing Quota (IFQ), with changes as necessary to the proposed text as published in the September 30, 2016, issue of the Texas Register (41 TexReg 7682).”

Attachments – 1

  1. Exhibit A – Proposed Rules

Commission Agenda Item No. 4
Exhibit A

INDIVIDUAL FISHING QUOTA REGULATIONS

PROPOSAL PREAMBLE

1. Introduction.

         The Texas Parks and Wildlife Department proposes an amendment to §57.994, concerning Individual Fishing Quota (IFQ). The proposed amendment would update references to federal rules adopted by reference and clarify that the federal rules apply in state waters.

         The IFQ is a federal regulatory program governing the commercial harvest of certain species of fish in federal waters. Federal rules require a federal permit and a federal Individual Fishing Quota (IFQ) vessel endorsement for the harvest of Gulf of Mexico Reef Fish. The IFQ is an allocation of a percentage of the total allowable harvest to individuals engaged in commercial fishing for certain species in federal waters, who in turn must comply with certain documentation and reporting requirements. The new rule is necessary to allow enforcement of these requirements in state as well as federal jurisdiction and to insure that fish landed in Texas are landed in compliance with federal limits.

         In 2013 the National Oceanic and Atmospheric Administration, the federal agency responsible for regulating fisheries resources and habitats in federal waters, nonsubstantively reorganized the provisions of 50 CFR Part 622 (78 FR 22949). As a result of that reorganization, the references to federal rules in §57.994 are inaccurate and should be updated.

2. Fiscal Note.

         Mr.Robin Riechers, Coastal Fisheries Division Director, has determined that for each of the first five years the rule as proposed is in effect, there will be no fiscal implications to state or local government as a result of enforcing or administering the rule.

3. Public Benefit/Cost Note.

         Mr. Riechers also has determined that for each of the first five years the rule as proposed is in effect:

         (A) The public benefit anticipated as a result of enforcing or administering the rule as proposed will be a single enforcement standard that eliminates potential confusion in enforcement and compliance.

         (B) Under the provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses and micro-businesses. The department has determined that since under federal law it is illegal to land red snapper, grouper, or tilefish in Texas that are not harvested, possessed, transported, or landed in compliance with federal law, there is no direct adverse economic effect on small or micro-businesses or persons required to comply as a result of the proposed rule, since it creates a state regulation mirroring the federal regulations that must be complied with anyway.

         (C)  The department has not drafted a local employment impact statement under the Administrative Procedures Act, §2001.022, as the agency has determined that the rule as proposed will not impact local economies.

         (D)  The department has determined that Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rule.

         (E) The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rule.

4. Request for Public Comment.

         Comments on the proposed rule may be submitted to Dr. Tiffany Hopper, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4333; tiffany.hopper@tpwd.texas.gov, or via the department’s website at http://tpwd.texas.gov/business/feedback/public_comment/.

5. Statutory Authority.

         The amendment is proposed under Parks and Wildlife Code, §67.004, which requires the commission to establish any limits on the taking, possession, propagation, transportation, importation, exportation, sale, or offering for sale of nongame fish that the department considers necessary to manage the species.

         The proposed amendment affects Parks and Wildlife Code, Chapter 67.

            §57.994. Individual Fishing Quota (IFQ).

                        (a) The Texas Parks and Wildlife Department adopts by reference the provisions of 50 CFR §622.21, 622.22, and 622.30, which shall govern the commercial take, possession, transportation, and landing of red snapper, grouper, and tilefish in Texas waters. 

                        (b) No person for commercial purposes may take, possess, land, or sell red snapper, grouper, or tilefish in or via state waters unless that person possesses a valid federal Commercial Vessel Permit with applicable endorsements (if required) as provided by 50 CFR §622.20. [The Texas Parks and Wildlife Department adopts by reference the provisions of 50 CFR §§622.16 and 622.20, which shall govern the take, possession, transportation, and landing of red snapper, grouper, and tilefish in Texas waters].

         This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.

         Issued in Austin, Texas, on