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Commission Agenda Item No. 5
Presenter: Jeremy Leitz

Commission Agenda
Commercial Oyster Regulations
May 21, 2015

I. Executive Summary: This item seeks adoption of a proposed amendment to the Statewide Oyster Fishery Proclamation. The proposed amendment would allow the department to count dead oyster shell of at least 3/4" in the 15 percent allotment of undersized oysters per sack.

II. Discussion: Responsibility for regulating the take, attempted take, possession, purchase, and sale of oyster resources in the salt waters of Texas is delegated to the Commission under Parks and Wildlife Code, Chapter 76.

Under current rule, it is unlawful for any person to take or possess a catch of oysters more than 15 percent of which are between ¾” and three inches (measured from beak to bill or along an imaginary line through the long axis of the shell).  However, it has been brought to the department’s attention by both industry and Texas Parks and Wildlife Department Law Enforcement that commercial oyster anglers are harvesting large quantities of shell.  The increased harvest of shell from oyster habitat poses threats to the substrate that juvenile oysters depend on for growth, leading to less recruitment and fewer legal-sized oysters. The commercial oyster industry has asked the department to address this issue, and is supportive of this proposal to include shell in the 15 percent allotment.  The proposed rules appeared in the April 17, 2015 issue of the Texas Register (40 TexReg 2173).  A summary of public comment on the proposed rules will be presented at the time of the hearing.

Attachments – 1

  1. Exhibit A – Published Amendments to the Statewide Oyster Fishery Proclamation

Commission Agenda Item No. 5
Exhibit A

STATEWIDE OYSTER FISHERY PROCLAMATION
PROPOSAL PREAMBLE

1. Introduction.

         The Texas Parks and Wildlife Department proposes amendments to §58.11 and §58.21, concerning the Statewide Oyster Fishery Proclamation. The proposed amendments are intended to maximize oyster production by minimizing the removal of substrate (shell that is used by juvenile oysters).

         The proposed amendment to §58.11, concerning Definitions, would alter the definition of “sack of oysters” to include dead oyster shell measuring greater than ¾ inch along any axis.

         The proposed amendment to §58.21, concerning Taking or Attempting to Take Oysters from Public Oyster Beds: General Rules, would require that dead oyster shell measuring greater than ¾ inch along any axis be returned to the reef at the time of harvest and would stipulate that each dead oyster shell measuring greater than ¾ inch be counted as an undersized oyster for purposes of complying with the provisions of subsection (b)(4), which limits undersized oysters to no more than 15% of a cargo.

         Over the past decade, many of the state’s oyster reefs have disappeared and hundreds of thousands of cubic yards of cultch (material, such as oyster shell, that furnishes a place for larval oysters to attach and grow to maturity) have been removed from the state’s public oyster reefs as a consequence of oyster dredging. The majority of the cultch removed from public reefs is not recovered, often being shipped out of state to be shucked or used as roadbed construction fill or feed additive in commercial poultry operations. The continuing sustained or increased removal of shell from oyster habitat poses a threat to the viability of the state’s oyster fishery, because a reduction in the cultch that juvenile oysters depend on for growth results in less recruitment and fewer legal-sized oysters. The department has received requests from the regulated community to address this issue.

2. Fiscal Note.

         Lance Robinson, Deputy Director of the Coastal Fisheries Division, has determined that for each of the first five years that the rules as proposed are in effect, there will be no fiscal implications to state or local governments as a result of enforcing or administering the rules.

3. Public Benefit/Cost Note.

         Mr. Robinson also has determined that for each of the first five years the rules as proposed are  in effect:

         (A) The public benefit anticipated as a result of enforcing or administering the rules as proposed will be the protection of oyster resources and the potential for increased oyster production by allowing damaged public oyster reefs to recuperate, allowing more oysters to reach market size for recreational and commercial harvest.

         (B) Under 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 there will be no adverse economic effects on small businesses, microbusinesses, or persons required to comply with the amendment as proposed. Although the proposed amendments would require the return of shell to the reef (which is not currently required by rule), there would not be any additional effort required to separate shell from legal cargo. The current rule requires undersized oysters to be returned to the reef; therefore, legal oysters must be separated from undersized oysters. Under the proposed amendments, this process would not be altered; legal oysters would be removed and the remainder of the catch (undersized oysters and shell) would be returned to the reef.

         (D) 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.

         (E) The department has determined that the proposed rules are in compliance with Government Code §505.11 (Actions and Rules Subject to the Coastal Management Program) and §505.22 (Consistency Required for New Rules and Rule Amendments Subject to the Coastal Management Program).

         (F) The Texas Parks and Wildlife Commission (Commission) finds that the proposed amendments are necessary to protect the oyster resources of the state and the oyster fishery of the state. In determining the need for the proposed amendments, the Commission has complied with the provisions of Parks and Wildlife Code, §76.301(b), which requires consideration of measures to prevent the depletion of oyster beds while achieving, on a continuing basis, the optimum yield for the oystering industry; measures based on the best scientific information available; measures to manage oysters; measures, where practicable to promote efficiency in utilizing oyster resources; measures, where practicable, that minimize cost and avoid unnecessary duplication in administration; and measures which will enhance enforcement.

3. Request for Public Comment.

         Comments on the proposed amendments may be submitted to Jeremy Leitz, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4333; email: jeremy.leitz@tpwd.texas.gov.

4. Statutory Authority

         The amendments are proposed under Parks and Wildlife Code, §76.301, which authorizes the commission to regulate the taking, possession, purchase, and sale of oysters.

         The proposed rules affect Parks and Wildlife Code, Chapter 76.

         §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) – (14) (No change.)

                 (15) Sack of oysters — A volume of oysters, including dead oyster shell[equivalent to a box] that weighs no more than 110 pounds including the sack.

                 (16) – (17) (No change.)

         §58.21. Taking or Attempting to Take Oysters from Public Oyster Beds: General Rules.

                 (a) (No change.)

                 (b) Size Limits and Possession of Undersized Oysters and Shell.

                         (1) (No change.)

                         (2) Oysters [which are] between 3/4 inch and three inches in length and dead oyster shell that is greater than ¾ inch (measured along any axis) must be returned to the reef at the time of harvest.

                         (3) (No change.)

                         (4) It is unlawful for any person to take or possess a cargo of oysters more than 15% of which are between 3/4 inch and three inches measured from beak to bill or along an imaginary line through the long axis of the shell. For the purposes of this paragraph, any dead oyster shell measuring greater than ¾ inch along any axis shall be counted as an undersized oyster.

                 (c) (No change.)

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

         Issued in Austin, Texas, on