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Commission Agenda Item No. 6
Presenter: Mark Lingo

Action
Statewide Shrimp Fishery Proclamation
May 21, 2015

I.  Executive Summary:  This item seeks adoption of proposed amendments to the Statewide Shrimp Fishery Proclamation.

The amendments presented for adoption would:

II. Discussion: Responsibility for regulating the catching, possession, purchase, and sale of shrimp is delegated to the commission under Parks and Wildlife Code, Chapter 77.

At the August 2014 meeting of the Texas Parks and Wildlife Commission (the Commission), members of the shrimping community asked the Commission to investigate the possibility of liberalizing shrimping regulations, requesting a number of changes. In response, the department held a total of seven scoping meetings at points along the Texas coast in order to directly communicate with the shrimping community and listen to concerns and suggestions. Members of the regulated community made suggestions concerning the Fall season length, gear restrictions, and count sizes (the size of shrimp that legally may be retained). As a result of dialogue with the regulated community, staff has determined that the size/count requirements are unnecessary because shrimp die when they are caught and the result of the current rule is that dead shrimp that are undersized must be thrown overboard to avoid violations. The department reasons that this constitutes an unnecessary and avoidable waste of a resource.

In addition, staff are proposing to correct an outdated statement that says all shrimp boats fishing in Texas outside waters must have an approved TED installed in each trawl that is rigged for fishing, and update a reference to the effective date of federal rules stipulating TED requirements.

III.    RECOMMENDATION:  Staff recommends that the Commission adopt the proposed motion:

“The Texas Parks and Wildlife Commission adopts §§58.102, 58.160, and new 58.166 concerning the Statewide Shrimp Fishery Proclamation, with changes as necessary to the proposed text as published in the April 17, 2015 issue of the Texas Register (40 TexReg 2174).”

Attachments – 1

  1. Exhibit A – Proposed Amendments to the Statewide Shrimp Fishery Proclamatio

Commission Agenda Item No. 6
Exhibit A

STATEWIDE SHRIMP FISHERY PROCLAMATION
PROPOSAL PREAMBLE

1. Introduction.
         The Texas Parks and Wildlife Department (department) proposes amendments to §§58.102 and 58.160, and new §58.166, concerning the Statewide Shrimp Fishery Proclamation.

         The proposed amendment to §58.102, concerning Definitions, would update a reference to the effective date of federal rules stipulating TED requirements.

         The proposed amendment to §58.160, concerning Taking or Attempting to Take Shrimp (Shrimping)—General Rules, would correct an outdated statement in subsection (f) that is no longer accurate. Subsection (f)(1) states that all shrimp boats fishing in Texas outside waters must have an approved TED installed in each trawl that is rigged for fishing. When the rule was promulgated in 2000 (25 TexReg 10157), federal rules required TEDs to be used only in gulf waters. Subsequent federal action required TEDs to be used while shrimping in all coastal waters. The proposed amendment rectifies the inaccuracy.

         Proposed new §58.166, concerning Special Provision, would eliminate count/size requirements for commercial bay shrimping in inside waters.      Under current rule (31 TAC §58.163(c)(4)A), commercial bay shrimpers may not exceed the legal shrimp count of 50 heads-on shrimp per pound of shrimp during part of the Fall season (August 15 through October 31).  The proposed new rule would eliminate that requirement.

         At the August 2014 meeting of the Texas Parks and Wildlife Commission (the Commission), members of the shrimping community asked the Commission to investigate the possibility of liberalizing shrimping regulations, requesting a number of changes. In response, the department held a total of seven scoping meetings at points along the Texas coast in order to directly communicate with the shrimping community and listen to their concerns and suggestions. The two most frequently heard suggestions were to extend shrimping hours and increase bag limits in inside waters. Staff concluded that these changes could be implemented without posing risk to the shrimp fishery or bycatch species. The Commission authorized staff to publish proposed amendments to 31 TAC §§58.162-58.165 that would extend shrimping hours and increase bag limits in inside waters during the Spring season. The proposed rules were published in the February 20, 2015 issue of the Texas Register (40 TexReg 798).

         Members of the regulated community also made suggestions concerning the Fall season length, gear restrictions, and count sizes (the size of shrimp that legally may be retained). As a result of continuing dialogue with the regulated community, staff has determined that the size/count requirements are unnecessary because shrimp die when they are caught and the result of the current rule is that dead shrimp that are undersized must be thrown overboard to avoid violations. The department reasons that this constitutes an unnecessary and avoidable waste of a resource.

         Because the department desires the proposed new section, if adopted, to take effect before the 2015 Fall season opens and current §58.163 cannot be amended before the amendments proposed in February have been adopted and taken effect, the proposed new section will preempt the count/size requirements of current §58.163(c)(4)(A) until the rules can be harmonized at a later date.

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 proposed 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 effective management of a public resource to provide maximum economic benefits consistent with sound ecological management principles.

         (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, commission 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 rules as proposed, and that, if anything, any economic effects of the rules should be positive. Accordingly, the department has not prepared a regulatory flexibility analysis under Government Code, Chapter 2006.

         (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 rules 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.

4. Request for Public Comment.

         Comments on the proposed rules may be submitted to http://www.tpwd.state.tx.us/business/feedback/public_comment/ or Robert Macdonald, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas, 78744; (512) 389-4775 (e-mail: robert.macdonald@tpwd.texas.gov).

5. Statutory Authority.

         The amendments and new section are proposed under Parks and Wildlife Code, Chapter 77, which provides the Commission with authority to regulate the catching, possession, purchase, and sale of shrimp.

         The amendments affect Parks and Wildlife Code, Chapter 77.

6. Text.

         §58.102. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.

                 (1) – (29) (No change.)

                 (30) Turtle Excluder Device (TED) — a device designed to be installed in a shrimp trawl forward of the cod end (tail bag) for the purpose of excluding sea turtles from the net and that meets the dimensions and specifications of an approved device as described in 50 CFR Part 223 §223.207 on August 13, 2012[May 15, 2005].

         §58.160. Taking or Attempting to Take Shrimp (Shrimping)—General Rules.

                 (a) – (e) (No change.)

                 (f) Turtle Excluder Device (TED) requirements.

                         (1) Except as otherwise provided in this section, all shrimp boats fishing in Texas [outside] waters must have an approved TED installed in each trawl that is rigged for fishing. A trawl is rigged for fishing if it is in the water, or if it is shackled, tied, or otherwise connected to any trawl door or board, or to any tow rope, cable, pole or extension, either on board or attached in any manner to the shrimp boat.

                         (2) – (3) (No change.)

                 (g) (No change.)

         §58.166. Special Provision. The provisions of §58.163(c)(4)(A) of this title (relating to Shrimping in Inside Waters — Commercial Bay Shrimping) are not effective as of the effective date of this section.

         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