Commission Agenda Item No. 5
Presenter:
Lance Robinson
Action
Oyster Lease Rules
Recommended Adoption of Proposed Rules
November 3, 2016
I. Executive Summary: Texas Parks and Wildlife Department (TPWD) staff will be seeking adoption of proposed changes to the Statewide Recreational and Commercial Fishing Proclamation regarding the renewal and expansion of the oyster certificates of location (private oyster leases) program.
II. Discussion: Oyster leases have been used for decades as a tool to reduce the risk to public health for oysters growing in areas closed by the Texas Department of State Health Services due to high bacterial levels. Under TPWD oversight, leaseholders are permitted to move oysters out of these restricted areas and place them onto their leases where the oysters must remain for a minimum of two weeks to allow the oysters to purge themselves of bacteria. This program minimizes the risk to public health and meets the requirements of the National Shellfish Sanitation Program under the Food and Drug Administration which allows the interstate commerce of oysters from Texas.
Currently there are 42 leases totaling approximately 2,300 acres, all in Galveston Bay. The term for these leases is 15 years and leases are set to expire February 28, 2017. The adoption of the proposed amendments to §58.30 (Private Oyster Leases) would include provisions regarding the renewal of existing commercial oyster leases.
III. Recommendation: Staff is now seeking adoption of the proposed amendments to §58.30 (Private Oyster Leases). Staff recommends that the Texas Parks and Wildlife Commission adopt the following motion:
“The Texas Parks and Wildlife Commission adopts amendments to §53.15 concerning Miscellaneous Fisheries and Wildlife Licenses and Permits, and §§58.10, 58.11, 58.30, 58.50, and 58.60 concerning the Statewide Oyster Fishery Proclamation as published in the September 30, 2016, issue of the Texas Register (41 Tex. Reg. 7683).
Commission Agenda Item No. 5
Exhibit A
STATEWIDE OYSTER FISHERY PROCLAMATION
CERTIFICATES OF LOCATION
PROPOSAL PREAMBLE
1. Introduction.
The Texas Parks and Wildlife Department proposes amendments to §§58.10, 58.11, 58.30, 58.40, 58.50, and 58.60, concerning the Statewide Oyster Fishery Proclamation.
The proposed amendments are intended, collectively, to maximize oyster production and protect public health by renewing areas under certificates of location and allowing oysters to be translocated from Restricted Areas (areas containing high levels of bacteria) to beds located in Approved Areas to depurate. Oysters feed by filtering large volumes of water. In contaminated waters, this can result in the concentration of harmful toxins and pathogens in the oysters. Relocating oysters to areas free of environmental contamination allows the oysters to purge toxins and pathogens from their systems, a process known as depuration. The proposed amendments will affect 42 certificates of location (leases) totaling 2,300 acres, all located in Galveston Bay. The proposed amendments also standardize terminology, increase fees for acreage under a certificate of location and provide for the adjustment of those fees at three-year intervals, and remove a redundant reporting requirement for harvest information.
Parks and Wildlife Code, §76.006 provides that any citizen of the United States or domestic corporation may file a written application with the department for a certificate authorizing the applicant to plant oysters and make a private oyster bed in the public water of the state (“certificate of location,” popularly referred to as a “lease”). The fee for a certificate of location is currently $6.00 per acre. Currently, the term for a certificate of location is 15 years, set to expire on February 28, 2017. Renewal of certificates of location provides economic value to the state of Texas and the oyster industry by providing a means for oysters to be harvested and sold for human consumption following depuration. An additional benefit is accrued because translocation of oysters prevents them from being unlawfully harvested in areas where harvest is restricted by the Department of State Health Services to protect human health and safety.
The proposed amendments remove the words “lease,” “leases,” “private oyster lease,” “private oyster leases,” “leaseholder,” and “leaseholders” wherever they occur in §§58.10, 58.11, 58.30, 58.40, 58.50, and 58.60, and where appropriate, replace those terms with more accurate descriptors implicating the certificate of location. The nonsubstantive change is intended to eliminate confusion and ambiguity. Additionally, the proposed amendments remove outdated reference to a shellfish program at the Department of State Health Services and simply replace it with a reference to that agency, as well as replace references to the entire name of that agency with an acronym.
The proposed amendment to §58.11, concerning Definitions, consists of several components.
The proposed amendment to §58.11 would add new paragraph (3) to define the term “Certificate of Location” as “a department-issued certificate authorizing a person or domestic corporation to plant oysters in a specifically delineated area of the public water of the state for the purpose of establishing a private oyster bed.” Because the proposed amendments replace references to “lease,” “leaseholders,” etc., and replace them with references to “certificate of location,” which is the technical term used in Parks and Wildlife Code, Chapter 76, a definition of that term is necessary.
The proposed amendment to §58.11 would alter current paragraph (4) to remove an unnecessary reference to the composition of the Texas Parks and Wildlife Commission.
The proposed amendment to §58.11 would alter current paragraph (6) to remove a redundancy. The phrase “refers to” is unnecessary.
The proposed amendment to §58.11 would add new paragraph (7) to define the term “cultch” as “material deposited in order to provide points of attachment for juvenile oysters (spat).” In addition to being the accepted technical term for oyster growth media, employing the word “cultch” reduces the need for repetition of awkward descriptive language.
The proposed amendment to §58.11 would redesignate current paragraphs (16) and (17) as new paragraphs (10) and (9), respectively, in order to preserve the alphabetical order of the terms in the section.
The proposed amendment to §58.11 would add new paragraph (11) to define “location” as “the acreage of public water for which a certificate of location has been issued.” As mentioned previously in this preamble, the proposed amendments, collectively, would eliminate references to the term “lease” and replace them with references to the term “certificate of location.” Thus, terms such as “location” are invested with a specialized meaning and must be defined for purposes of compliance, administration, and enforcement.
The proposed amendment to §58.11 would add new paragraph (12) to define “location term” as “the 15-year term of a certificate of location,” which is necessary to provide a convenient term for ease of reference.
The proposed amendment to §58.11 would add new paragraph (13) to define the term “locator” as “a person or domestic corporation to whom or which a certificate of location has been issued,” which is necessary to provide a convenient term for ease of reference.
The proposed amendment to §58.11 would eliminate the definition of “private oyster lease” in current paragraph (11) because, as discussed elsewhere in this preamble, references to “lease” are being eliminated throughout the subchapter.
The proposed amendment to §58.11 would alter current paragraph (14) (redesignated as new paragraph (20)) to remove an outdated reference to a shellfish program at the Department of State Health Services and simply replace it with a reference to that agency.
The proposed amendment to §58.11 would add new paragraph (22) to define “under location” as “an area subject to a certificate of location,” which, for reasons previously discussed in this preamble, is necessary to create a convenient reference.
The proposed amendment to §58.30, concerning Private Oyster Leases, would establish minimum activity standards for areas under a certificate of location. Within the first five years of the location term, a locator would be required to deposit a minimum of 25 cubic yards per acre of department-approved cultch onto the location. For years 6-15 of the location term, a locator would be required to deposit, at locations specified by the department, a volume of department-approved cultch equivalent to at least 33-1/3 percent of the volume of oyster shell harvested by the locator during the immediately preceding calendar year. The proposed amendment is intended to address deleterious environmental conditions and negative impacts of harvest on oyster populations and habitat. The cumulative impacts of recent events have contributed to the declining trends in oyster resources in Texas. Hurricane Ike (2008) resulted in the loss of approximately 50% of the oyster reefs in Galveston Bay. Increased salinities during the 2010 and early 2015 drought resulted in increased oyster mortality due to parasites and disease. Coast-wide flooding in 2015 and 2016 further impacted oyster reefs as losses occurred due to low salinity. Coinciding high harvest pressure exacerbated the condition of Texas’ oyster reefs. The cumulative toll of these events and their impacts make it necessary for the department to take action to protect and restore oysters and oyster habitat.
The proposed amendment also would increase the acreage-based fee for certificates of location, from the current $6 per acre to $60 per acre, and would provide for automatic proportional adjustment of the fee every three years, based on changes in the Consumer Price Index, updates to the administrative cost-recovery analysis, or both.
The proposed amendment to §58.50, concerning Oyster Harvest Permits, would specify that monthly harvest report forms required by the current rules to be submitted to the department’s commercial landings program by the 10th of the month following the month in which harvest occurred. The current rule specifies that the reports be filed with the department by the 15th of the month following the month in which harvest occurred; however, other department rules require all commercial landings of aquatic marine life to be submitted by the 10th of each month, which includes oysters. The removal of the redundant reporting requirement will result in greater administrative efficiency for both the department and the regulated community.
2. Fiscal Note.
Lance Robinson, Deputy Director of the Coastal Fisheries Division, has determined that for each of the first five years the rules as proposed are in effect there will be fiscal implications to state government as a result of enforcing or administering the rules. The proposed amendment to §58.30 would increase fees for locators and would result in an estimated revenue increase of approximately $125,377.20 per year to the department, assuming the number of locations remains stable.
The rules as proposed will not affect other units of state and local government.
3. Public Benefit/Cost Note.
Mr. Robinson also has determined that for each of the first five years that the rules as proposed are in effect:
(A) The public benefit anticipated as a result of enforcing or administering the rules will be the maintenance of a sustainable and healthy oyster fishery by ensuring that areas under a certificate of location are maximally managed by the department to generate substrate for oyster habitat regeneration for public use and enjoyment.
(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. As required by Government Code, §2006.002(g), the Office of the Attorney General has prepared guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small businesses. Those guidelines state that an agency need only consider a proposed rule’s “direct adverse economic impacts” to small businesses and micro-businesses to determine if any further analysis is required. For that purpose, the department considers “direct economic impact” to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services.
The department has determined that the rules as proposed will result in adverse economic impacts to small and microbusinesses and persons required to comply. For the purposes of this analysis, the department assumes that all entities to whom certificates of location have been issued qualify as a small or microbusiness. The department also notes that this analysis addresses adverse economic impacts over the 15-year length of a location term, because there are adverse economic impacts that are not manifested in the first five years of the location term.
At the current time the department has issued 42 individual certificates of location, ranging in size from 11 to 100 acres, to a total of 20 locators. Locators may hold multiple certificates of location; thus, the smallest acreage controlled by a single locator is 22.4 acres and the largest acreage controlled by a single locator is 290 acres. The rules as proposed would result in adverse economic impacts for all locators as a result of increased location fees and the costs associated with the required deposition of cultch under the rules.
In determining the appropriate location fees to enable cost-recovery by the department for administering the program, the department used the method provided in the 2000 State Auditor’s Report, “A Joint Study Report on the Parks and Wildlife Department’s Commercial Fishery Programs and the General Land Office’s Leases of State-Owned Lands”(https://www.sao.texas.gov/Reports/Main/01-011.html). For the purposes of this proposal, the estimated costs to the department for managing the private oyster bed program were adjusted to 2015 costs and used to calculate a per acre cost-recovery fee of $60.00 per acre per year. The impact of the proposed per acre location increase from $6.00 to $60.0 would result in an increase of $594 per year for the smallest (location) and an increase of $5,400 per year for the largest (location). In terms of impacts to individual locators, the fee increase would result in a cost of between $1,209.60 (for the locator controlling 22.4 acres) and $15,660 (for the locator controlling 290 acres).
The proposed amendment to §58.30 would require locators to deposit a minimum of 25 cubic yards per acre onto each of the locator’s areas under location by the end of the fifth year of the location term. In each year of the remainder of the location term, locators would be required to deposit a minimum amount of cultch, based on the shell harvest data for each location, upon areas designated by the department.
The department estimates that the adverse economic impact of requiring a minimum of 25 cubic yards per acre will be a cost of between $8,960 per year (for the locator controlling 22.4 acres) and $116,000 per year (for the locator controlling 290 acres). These figures were derived based on the current cost to the department for purchasing and deploying cultch materials ($80 per cubic yard) for departmental restoration efforts. The department notes that the practice of placing cultch onto locations is common amongst current locators and frequently exceeds the 25 cubic yards per acre minimum stipulated in the proposed rule, so for those locators who already place more than 25 cubic yards of cultch for each acre under location, the proposed rule would not impose an adverse economic impact in the first five years of the location term. The proposed amendment to §58.30 also would require locators to deposit cultch in department-specified areas annually in years 6-15 of the location term. The department estimates that the adverse economic impacts resulting from this portion of the rule would be between $2,867.20 per year (for the locator controlling 22.4 acres) and $37,120 per year (for the locator controlling 290 acres). The department derived these values by using department harvest data to calculate the average oysters harvested per acre from existing locations over the last nine years (2007-2015), dividing by three (representing a volume equivalent to 33.3 percent of the volume of shell harvested from the location in the previous year, which yields a value of 1.6 cubic yards per acre), and then multiplying that value by $80 (as noted previously, the current cost to the department for purchasing and deploying cultch materials for departmental restoration efforts is approximately $80 per acre).
The department estimates that over the maximum period of a location term (15 years) the total adverse economic impacts to small and microbusinesses and persons required to comply would be between $93,632 (for the locator controlling 22.4 acres) and $1,212,200 (for the locator controlling 290 acres). Again, the department notes that the practice of placing cultch onto locations is common amongst current locators and frequently exceeds the 25 cubic yards per acre minimum stipulated in the proposed rule for the first 5 years of the location term, and thus the amounts presented above represent the maximum impact to current activities if the locater had not been actively placing in material on their location.
(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 rules.
(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 rules.
(F) The department has determined that the proposed rules are in compliance with Government Code §505.11 (Actions and Rule Amendments Subject to the Coastal Management Program).
4. Request for Public Comment.
Comments on the proposal may be submitted to Dr. Tiffany Hopper, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, TX 78744; (512) 389-4650; email: tiffany.hopper@tpwd.texas.gov
5. Statutory Authority.
The amendments are proposed under Parks and Wildlife Code, §§76.017, 76.018, and 76.020 which, respectively, authorize the commission to establish the annual rental fee for the areas established under the certificate of location, to determine oyster location renewal procedures, and to require the recovery of oyster shell or other suitable cultch material to maintain or enhance public oyster reefs.
The proposed amendments affect Parks and Wildlife Code, Chapter 76.
6. Rule Text.
§58.10 Application.
(a) (No change.)
(b) This subchapter also applies to activities authorized under a certificate of location[private oyster leases] including the permitting and marking of, as well as transplant of oysters to, and harvest of oysters pursuant to a certificate of location[from private oyster leases].
§58.11. Definitions. The following words and terms, when used in the subchapter, shall have the following meanings, unless the context clearly indicates otherwise.
(1)-(2) (No change.)
(3) Certificate of Location—A department-issued certificate authorizing a person or domestic corporation to plant oysters in a specifically delineated area of the public water of the state for the purpose of establishing a private oyster bed.
(4)[(3)] Conditionally approved area — The classification of a shellfish growing area determined by the Texas Department of State Health Services (TDSHS) to meet approved area criteria for a predictable period. The period is conditional upon established performance standards specified in a management plan. A conditionally approved area is a restricted area when the area does not meet the approved growing area criteria.
(5)[(4)] Commission — The[Refers to the nine member] Texas Parks and Wildlife Department Commission.
(6)[(5)] Culling — The process of separating undersized oysters from oysters that are lawful to possess.
(7) Cultch — Material deposited in order to provide points of attachment for juvenile oysters (spat).
(8)[6] Department—The[Refers to the] Texas Parks and Wildlife Department.
(9) Director—The executive director of the department.
(10) Harvester/Shell Recovery Tag—An identifying marker that must be affixed to the outside of each sack of oysters at the time of harvest, in the location of harvest, containing information required by the TDSHS under the NSSP, and remain affixed during transportation of the oysters to a dealer.
(11) Location—The acreage of public water for which a certificate of location has been issued.
(12) Location term—The 15-year term of a certificate of location.
(13) Locator—A person or domestic corporation to whom or which a certificate of location has been issued.
(14)[(7)] Natural oyster bed (reef)—As defined in Parks and Wildlife Code, §76.051, a natural oyster bed is an area where at least five barrels of oysters are found within 2,500 square feet of any position on a reef or bed.
(15)[(8)] Open season—A period during which it is lawful to take oysters.
(16)[(9)] Oyster—That species of molluscan shellfish identified as the Eastern oyster, Crassostrea virginica and its subspecies. No other species of molluscan shellfish are included within this proclamation.
(17)[(10)] Possess—The act of having in possession or control, keeping, detaining, restraining, or holding as owner, or as an agent, bailee, or custodian of another.
[11 Private oyster lease—Those state water bottoms leased from the state for the purpose of producing oysters to individuals or corporations incorporated under the laws of this state.]
(18)[(12)] Prohibited area—The classification of a shellfish growing area determined by the TDSHS to be unacceptable for the transplanting, gathering for depuration, or harvesting of shellfish. The only shellfish removal permitted from a prohibited area is for the purpose of depletion, as defined in the Control of Harvesting Section of Part 1 of the NSSP.
(19)[(13)] Public oyster bed (reef)—As defined in Parks and Wildlife Code, §76.002, all natural oyster beds (reefs) are public. All oyster beds not designated as private are public.
(20)[(14)] Restricted area—The classification of a shellfish growing area determined by the TDSHS to be unacceptable for harvesting of shellfish for direct marketing, but which is acceptable for transplanting or gathering for depuration. A restricted area may be closed for transplanting or gathering for depuration when the TDSHS [Seafood and Aquatic Life Group] determines that the area does not meet the restricted area criteria established in the NSSP.
(21)[(15)] Sack of oysters—A volume of oysters, including dead oyster shell that weighs no more than 110 pounds including the sack.
[(16) Harvester/Shell Recovery Tag — An identifying marker that must be affixed to the outside of each sack of oysters at the time of harvest, in the location of harvest, contain information required by the TDSHS under the NSSP, and remain affixed during transportation of the oysters to a dealer.]
[(17) Director — The executive director of the department.]
(22) Under location — An area subject to a certificate of location.
§58.30. Certificate of Location[Private Oyster Leases].
(a) General Rules.
(1) No certificate of location[lease] will be issued for:
(A) a natural oyster bed as prescribed in Parks and Wildlife Code, §76.001;
(B) an area that has been fished as a public reef within eight years of an application of a certificate of location[the lease application] as prescribed in Parks and Wildlife Code, §76.003;
(C) a bay shore area within 100 yards of the shore as prescribed in Parks and Wildlife Code, §76.004;
(D) an area subject to an exclusive riparian right as provided under Parks and Wildlife Code, §76.004 and §76.005;
(E) an area already under location[certification as a private lease]; or
(F) an area within 1,000 feet of a location[an established lease] not owned or controlled by the applicant.
(2) The term of a certificate of location[the lease] is 15 years as prescribed in Parks and Wildlife Code, §76.018.
(3) In accordance with the Oyster Fishery Management Plan the Department may accept [oyster lease] applications certificates of location.
(b) Active Use Criteria.
(1) The department shall conduct an annual review of each area under location in order to determine active use during the previous year.
(2) A locator must meet the following criteria for the area under location to be considered in active use:
(A) within the first five years of the location term, a locator must deposit a minimum of 25 cubic yards per acre of department-approved cultch onto the area under location; and
(B) beginning with the sixth year of the location term and continuing annually until the 15th year of the location term, a locator must deposit department-approved cultch equivalent to at least 33-1/3 percent (by volume) of oyster shell taken by the locator holder from each location during the immediately preceding calendar year. The site(s) of a deposit or deposits required under this paragraph shall be specified by the department.
(c)[b] Application For Certificate of Location[Oyster Lease].
(1) If applications for certificates of location[private oyster leases] are being accepted by the department, they shall be accompanied by a nonrefundable application fee of $200.
(2) The applicant shall mark the proposed location[lease] site or sites with temporary poles and/or buoys in such a manner that the outline of the site or sites can be clearly determined.
(3) Each application shall contain:
(A) applicant’s name and address;
(B) affirmation that applicant is a United States citizen as prescribed in Parks and Wildlife Code, §76.006;
(C) a description of the acreage to be authorized by the certificate of location[lease], including a plat showing approximate size and location in relation to state land tracts; and
(D) signed letters each from the U.S. Army Corps of Engineers, General Land Office, and TDSHS[Seafood and Aquatic Life Group of the Texas Department of State Health Services] indicating approval for the proposed location[lease] site.
(4) An authorized employee(s) of the department shall inspect the proposed location[lease] site or sites to determine its location with respect to:
(A) natural oyster reefs;
(B) shoreline;
(C) areas restricted or prohibited by the TSDHS[Texas Department of State Health Services];
(D) spoil disposal areas;
(E) other areas subject to a certificate of location[private leases];
(F) riparian rights;
(G) presence of exposed shell; and
(H) presence of live oysters.
(d)[c] Public Hearing on Application.
(1) After having determined the proposed location[lease] site meets location and exposed shell requirements, the department shall:
(A) hold a public hearing to determine if the site has been publicly fished within eight years of the [lease] application for a certificate of location;
(B) publish a notification of the date, time, and purpose of the public hearing at least once in a newspaper of general circulation in the county closest to the proposed location[in which the proposed lease site is located];
(C) publish the notification between ten and 20 days prior to the public hearing;
(D) make available to the public information about the proposed application for a certificate of location[lease site] ten days prior to the date of the hearing; and
(E) present the investigation report at the public hearing.
(2) Persons objecting to the proposed certificate of location[lease] must submit a sworn affidavit or testify under oath at the public hearing stating reasons for the objection.
(3) The department shall review findings of the public hearing and submit recommendations to the Coastal Fisheries Division Director for approval.
(4) The applicant will be notified within ten days after the hearing of either approval or denial of the[lease] application for a certificate of location.
(5) The application approved by the department will be forwarded to the Coastal Coordination Council for final approval.
(e)[d] Approved [Lease] Procedures for Applicant.
(1) Applicant shall be responsible for having a final survey of the approved location[lease] conducted by a registered surveyor who will furnish the department with survey notes and a plat [of the lease] showing:
(A) the location [of the lease] in relation to state land tract boundaries; and
(B) latitude and longitude coordinates for all location corner [lease] markers.
(2) The applicant shall mark the boundaries of the location[lease] with buoys or other permanent markers at the time of the final survey and maintain buoys or other permanent markers until [lease] termination of the certificate of location. Supplemental markers may be required along the [lease] boundaries if one corner marker is not clearly visible from another corner marker.
(A) All marker buoys or other permanent markers must be:
(i) at least six inches in diameter;
(ii) at least three feet out of the water at mean high tide;
(iii) of a shape and color that is visible for at least 1/2 mile under normal weather conditions;
(iv) marked with the certificate of location[lease] number (Buoys or other permanent markers common to two or more locations[leases] must be marked with all [lease] numbers of the certificate of location);
(v) marked with at least two-inch high letters in plain Arabic block letters in a location where it will not be obscured by water or marine growth; and
(vi) marked with all required U.S. Coast Guard markings.
(B) Buoys must be anchored by:
(i) A screw anchor with a minimum one-inch galvanized sucker rod and 12-inch head inserted ten feet into the bottom; or
(ii) two anchors per buoy and each anchor having a minimum weight of 300 pounds.
(C) If replacement of buoys or other permanent markers is necessary, original latitude and longitude coordinates of the final survey must be used to relocate markers.
(3) An authorized employee(s) of the department shall inspect and verify latitude and longitude coordinates.
(4) The department shall return approved application for appropriate registration by applicant with the county clerk in the county of location.
(5) Rental Fee.
(A) The holder of a certificate of location shall pay to the department ($60)[$6.00] per acre of location per year. The fee established by this subparagraph shall be recalculated at three-year intervals beginning on the effective date of this section and proportionally adjusted to any change in the Consumer Price Index, the department’s cost-recovery needs, or both.
(B) Rental fees are due annually by March 1 as prescribed in Parks and Wildlife Code, §76.017.
(C) The holder of a certificate shall pay the department a late penalty fee equal to 10 percent of the amount due for any rental, transfer, sale, or renewal fee that is not paid when due as prescribed in Parks and Wildlife Code, §76.017.
(D) Failure to pay any rental, transfer, sale, renewal, or late penalty fee within 90 days of the due date terminates the (certification of location) [lease] as prescribed in Parks and Wildlife Code, §76.017.
(6) [Lease] Renewal of Certificate of Location.
(A) As prescribed in Parks and Wildlife Code, §76.018, at the end of a location[lease] term the department shall determine the need for continuation of the certificate of location[lease] based on:
(i) the need for depuration of oysters from non-approved areas; and
(ii) other considerations as specified in §58.12 of this title (relating to Oyster Fishery Management Plan).
(B) If the certificate of location[lease] is to be renewed under the conditions of the department as prescribed in Parks and Wildlife Code, §76.018, the holder of the certificate of location[lease-holder of record] shall be offered the first right of refusal for renewal as prescribed in Parks and Wildlife Code, §76.018.
(C) If there is any alteration to the boundaries of a location, the [The] holder of a certificate of location shall be responsible for having the location[lease] resurveyed by a registered surveyor who will provide the department with survey notes and a plat of the location[lease] showing:
(i) the location [of the lease] in relation to state land tract boundaries; and
(ii) latitude and longitude coordinates for all [lease] corner markers.
(D) The survey will be conducted and provided to the department within one year of [the lease] renewal of the certificate of location;
(7) [Lease] Auction Procedures.
(A) The department may auction a location[lease] that is not renewed as prescribed by Parks and Wildlife Code, §76.018.
(B) The department may determine a minimum acceptable bid based on:
(i) bid offers from previous auctions;
(ii) established open market prices; and
(iii) other relevant factors.
(C) The department may refuse all bids below the minimum acceptable bid.
(D) The department must follow prescribed bid guidelines for state agencies.
(8) [Lease] Transfers or Sale as prescribed in Parks and Wildlife Code, §76.019.
(A) A transfer or sale of a location[lease] does not change location[the] terms [of a lease].
(B) A payment of $200 will be due upon transfer or sale of a location[lease].
(C) A transfer fee will not be required when a location[lease] is inherited.
(D) A completed transfer form prescribed by the department will be required at time of transfer.
§58.40 Oyster Transplant Permits
(a) Oysters for transplanting pursuant to certificate of location[to a private oyster lease] may be taken only under a permit issued by the department.
(b) Oyster Transplant Application.
(1) The application for a transplant permit must include the following information:
(A) oyster certificate of location[lease] number;
(B) name and address of the holder of the certificate of location[lease holder] and/or that of his designated agent;
(C) name, if documented, and/or registration number of all boats to be used in transplanting operations;
(D) as prescribed in Parks and Wildlife Code, §76.031, the quantity of unculled oysters requested, and a description of areas from which the oysters are requested to be taken; and
(E) beginning and ending dates of transplant operations.
(2) Written applications for transplant permits must be received by the department two business days prior to the beginning of transplanting operations.
(3) Written applications for transplant permit amendments must be received by the department at least two business days prior to the desired effective date of the amendment.
(4) No more than four transplant permits for a certificate of location[lease] will be issued during a one month period.
(5) No transplant permit will be issued for an oyster certificate of location[lease] while a harvest permit for the same certificate of location[lease] is in effect.
(6) A valid transplant permit must be on the vessel during any transplanting activities.
(7) A transplant permit will not be issued to any certificate of location[lease]holder who has not paid any rental, transfer, sale, renewal or late penalty fees that are owed to the department.
(8) The number of boats that may be allocated to a certificate of location[lease] for transplanting oysters shall be based on:
(A) the total number of boats that the department determines may be used to transplant oysters during that specific season, and
(B) the total number of active certificates of location[leases] during that season.
(9) Boat allocations may be transferred between certificates of location[leases] so long as those transfers occur before Private Oyster Transplant Permits are issued for those specific certificates of location[leases] and must be identified and included on the transplant permit request.
(c) Oyster Transplant Season and Times.
(1) The department shall establish the oyster transplant season giving consideration to information furnished to the department by certificate of location[lease]holders.
(2) All transplanting operations shall begin after sunrise and shall be completed before sunset each day.
(3) No transplanting will be permitted on Saturdays, Sundays, major holidays, or on the same days that harvest operations are permitted.
(d) Transplant Restrictions.
(1) Transplanting of oysters is subject to the conditions and provisions described in the permit issued by the department.
(2) Oysters taken for the purposes of transplanting pursuant to a certificate of location[to a private oyster lease] may be taken only from areas designated by the department as prescribed in Parks and Wildlife Code, §76.033.
(3) Oysters may not normally be taken for the purpose of transplanting from the following areas:
(A) public oyster reefs in areas approved for oyster harvest and which have been subjected to any degree of oyster fishing in recent years;
(B) near-shore reefs around public or private fishing piers where a conflict of interest has arisen or might arise;
(C) reefs or areas in which the incidence of diseases, parasites, and/or predators have been judged potentially dangerous to the public reef fishery if the oysters are transplanted to other areas; or
(D) areas declared to be unsuitable for transplanting by TDSHS[the Texas Department of State Health Services] because of the presence of persistent chemicals or diseases that might be dangerous to public health.
(4) All oysters obtained under a transplant permit must be deposited upon the acreage under location[lease] identified in the permit.
(5) The cargo of oysters transplanted will consist of unculled oysters and shell, unless specified otherwise.
(6) The permit may require oysters to be culled on the reef from which they are taken if the department determines that the reef area may be protected or improved by such action.
(7) The permit holder may cull the cargo of oysters harvested pursuant to a certificate of location[on his oyster lease].
(8) Oysters may be transplanted only to acreage under location[a private oyster lease] which is properly marked at all corners.
(9) No oysters may be transplanted to acreage under location that is[a lease] adjacent to or adjoining acreage under location[a lease] approved for harvest.
(e) Reporting Requirement. Weekly transplant reports must be prepared by the permittee and submitted to the department each Monday following the week of transplant.
§58.50 Oyster Harvest Permits
(a) Oysters may be harvested pursuant to a certificate of location[from a private lease] only under a permit issued by the department.
(b) Oyster Harvest Application.
(1) Written application for a harvest permit must be received two business days prior to the requested harvest dates and include the following:
(A) the oyster certificate of location[lease] number;
(B) the name of the holder of the certificate of location[lease holder] and/or that of his designated agent;
(C) the name and/or registration number of all boats to be used in harvesting operations; and
(D) beginning and ending dates for the permit.
(2) No more than four harvest permits for a certificate of location[lease] will be issued during a one month period.
(3) A harvest permit will not be valid until 15 days after expiration of a transplant permit for the same certificate of location[lease] or certificates of location[leases] adjacent thereto and with approval of the TDSHS[Texas Department of State Health Services].
(4) A valid harvest permit must be on the vessel during any harvesting activities.
(c) Harvest of oysters pursuant to a certificate of location[from a private lease] is subject to conditions as provided in the department issued permit.
(d) Reporting Requirement. Monthly harvest report forms must be prepared by the permittee at the end of each month and supplied to the department’s commercial landings program[department]by the (10th)[15th] of the month following the month in which harvest occurred.
(e) A harvest permit will not be issued to any certificate of location[lease]holder who has not paid any rental, transfer, sale, renewal or late penalty fees that are owed to the department.
§58.60 Transplant or Harvest Permit Cancellation
(a) Violations of the transplanting or harvesting procedures include, but are not limited to, the following:
(1) harvesting oysters from areas under a certificate of location[or lease] other than covered under permit;
(2) harvesting oysters from restricted or prohibited areas as designated by TDSHS[Texas Department of State Health Services];
(3) transplanting oysters from unauthorized areas or to areas not authorized under a certificate of location[unauthorized leases];
(4) transplanting oysters without a valid transplanting permit;
(5) harvesting oysters without a valid harvesting permit;
(6) transplanting on or harvesting oysters pursuant to a certificate of location from a location[from a lease] which is not properly marked;
(7) failure to adhere to any conditions of the permit;
(8) failure to amend a transplant or harvest permit to include additions or deletions of boats; or
(9) failure to submit weekly transplant reports or monthly harvest reports.
(10) failure to have a valid permit on the vessel during authorized activities.
(b) Violations of paragraphs (1) and (2) of subsection (a) of this section shall result in a one year cancellation and withholding of all permits for the affected certificates of location[leases].
(c) Violations of paragraphs (3), (4), and (5) of subsection (a) of this section, shall result in a 45-calendar-day cancellation and withholding of all permits for the affected certificate of location[leases] beginning on the next approved harvest or transplant day.
(d) Violations of paragraphs (6), (7), (8), (9), and (10) of subsection (a) of this section, or the other provisions in the permits, shall result in a five-calendar-day cancellation and withholding of all permits for the affected certificate of location[leases] beginning on the next approved harvest or transplant day.
(e) In the event a transplant or harvest permit is canceled, the holder of the certificate of location[lease holder] may appeal to the executive director within five days, stating, in writing, why the permit should be reinstated.
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
Commission Agenda Item No. 5
Exhibit B
FEES FOR CERTIFICATE OF LOCATION
PROPOSAL PREAMBLE
1. Introduction.
The Texas Parks and Wildlife Department proposes an amendment to §53.15, concerning Miscellaneous Fisheries and Wildlife Licenses and Permits. The proposed amendment would eliminate references to fees for certificates of location (oyster lease rentals). In another rulemaking published elsewhere in this issue of the Texas Register, the department proposes rules intended to address deleterious environmental conditions and negative impacts of harvest on oyster populations and habitat. The cumulative impacts of these recent events (hurricanes, drought, etc.) have contributed to the declining trends in oyster resources in Texas. The toll of these events and their impacts make it necessary for the department to take action to protect and restore oysters and oyster habitat, which include a fee increase for areas that the department has issued certificates of location for private oyster beds. That fee increase is addressed in proposed amendments to 31 TAC §58.30, published elsewhere in this issue, and contains an economic and cost analysis of the proposed fee increase, including impacts to small businesses, microbusinesses, and persons required to comply. Because the fees for certificates of location are being addressed by the proposed rulemaking affecting Chapter 58, Subchapter A (Statewide Oyster Fishery Proclamation), it is no longer necessary to refer to them in Chapter 53; thus, the proposed amendment would remove them.
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 the elimination of potential confusion by placing the fees for certificates of location in a single regulation.
(B) There will be no adverse economic effect on persons required to comply with the rule as proposed.
(C) 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. As required by Government Code, §2006.002(g), the Office of the Attorney General has prepared guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small businesses. Those guidelines state that an agency need only consider a proposed rule’s “direct adverse economic impacts” to small businesses and micro-businesses to determine if any further analysis is required. For that purpose, the department considers “direct economic impact” to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services. The department has determined that the rule will not directly affect small businesses and/or micro-businesses. Therefore, the department has not prepared the economic impact statement or regulatory flexibility analysis described in Government Code, Chapter 2006. (Any impact on small or micro-businesses would result from the proposed rules affecting Chapter 58, Subchapter A (Statewide Oyster Fishery Proclamation), published elsewhere in this issue of the Texas Register.)
(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, §§76.017, 76.018, and 76.020 which, respectively, authorize the commission to establish the annual rental fee for the areas established under the certificate of location, to determine oyster location renewal procedures, and to require the recovery of oyster shell or other suitable cultch material to maintain or enhance public oyster reefs.
The proposed amendment affects Parks and Wildlife Code, Chapter 76.
§53.15. Miscellaneous Fisheries and Wildlife Licenses and Permits.
(h) Miscellaneous fees:
(1) – (6) (No change.)
[(7) oyster lease rental — $6 per acre of location per year;]
(7)[(8)] oyster lease renewal/transfer/sale — $200; and
(8)[(9)] double-crested cormorant control permit — $13.
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