Commission Agenda Item No. 4
Exhibit A

STATEWIDE OYSTER FISHERY PROCLAMATION

PROPOSAL PREAMBLE

1. Introduction.

         The Texas Parks and Wildlife Department proposes amendments to §58.21, §58.22, and §58.23, concerning the Statewide Oyster Fishery Proclamation.

         The proposed amendments are intended to maximize oyster production by temporarily closing specified areas for the planting of cultch (material, such as oyster shell, that furnishes a place for larval oysters (spat) to attach and grow to maturity and extending harvest opportunities later into the season by reducing the daily sack limit from 50 to 40, and prohibiting the take of oysters on Sundays during the recreational and commercial seasons.

         The proposed amendment to §58.21, concerning Taking or Attempting to Take Oysters from Public Oyster Beds: General Rules, would close approximately 28 acres to oyster harvesting in the Galveston Bay Conditionally Approved Area TX-6 and Galveston Bay Approved Area TX-7. The Texas Department of State Health Services (DSHS) regulates shellfish sanitation and designates specific areas where oysters may be harvested for human consumption. The designation of “Conditionally Approved” or “Approved” is determined by DSHS. The proposed amendment also would extend the closure of a 54-acre area encompassing Half-Moon Reef in Matagorda Bay. The extent of the closures would be for two harvest seasons (until November 1, 2018), which will allow for repopulation of oysters in Galveston Bay (and the growth of those oysters to market size) and, in the case of Half-Moon Reef, allow for continued post-construction monitoring of this restoration project. Areas under certificates of location (sometimes referred to as private oyster leases) in TX-6 and TX-7 would not be affected by the closure. The proposed amendment also eliminates the current closure of Hannah Reef, Middle Reef (CCA), Middle Reef, and Pepper Grove Reef, where restoration efforts have been successful and harvest can resume.

         Under Parks and Wildlife Code, §76.115, the department may close an area to the taking of oysters when the commission finds that the area is being overworked or damaged or the area is to be reseeded or restocked.  Oyster reefs in Texas, and Galveston Bay in particular, have been impacted due to hurricanes such as Hurricane Ike (September 2008), drought, and flooding, as well as high harvest pressure. The department’s oyster habitat restoration efforts to date in Galveston Bay have resulted in a total of approximately 1,539 acres of sediment/silt-covered oyster habitat returned to productive habitat within the bay. Part of this restoration effort includes approximately $10.8 million in grants and other funding that have been secured by the department to conduct cultch planting on approximately 435 acres of sediment/silt-covered oyster habitat in Galveston Bay.

         The department received grant funds from the Coastal Impact Assistance Program in 2009 to assist in restoring some of this impacted habitat. The department will be restoring approximately 28 acres of oyster reef habitat in Galveston Bay in the spring of 2016 utilizing the remainder of these grant funds with additional funding coming from the Oyster Shell Recovery and Replacement Program and from the city of Texas City. The proposed amendment would temporarily close these four areas to oyster harvest for a period of two years. Commercial oyster leases and other public oyster reefs will not be affected by the closures.

         The Half-Moon Reef complex lies off Palacios Point in Matagorda County between Tres Palacios Bay and the eastern arm of Matagorda Bay and was formerly a highly productive oyster reef within the Lavaca-Matagorda Estuary. The reef had been degraded due to a variety of stressors, and as a result, The Nature Conservancy (TNC) secured funding to restore up to 40 acres within a 54-acre section of the historical reef footprint. The department implemented a temporary closure of this area in 2014 to allow cultch materials to become colonized by oysters and to allow the TNC to conduct post-construction monitoring of the reef recovery. The closure was scheduled to expire on November 1, 2016; however, the proposed amendment would extend the closure for an additional two years to further evaluate post-construction monitoring and recolonization of this habitat.

         The Nature Conservancy has contracted with Texas A&M University – Corpus Christi to monitor the post-construction performance of the restored Half-Moon Reef over a five-year period at a cost of approximately $700,000. The four components of this monitoring include ecological, structural, fish usage and assessing recreational angler use of the restored reef. Extending the closure of Half-Moon Reef will allow the continuation of this post-construction monitoring.

         The proposed amendment to §58.22, concerning Commercial Fishing, would reduce the commercial possession limit for oysters from 50 sacks per day to 40 and would close Sunday to commercial oyster harvest during the recreational and commercial seasons (November 1 of one year through April 30 of the following year). The goal is to promote efficiency in utilizing oyster resources by providing a more stable price structure for oysters taken throughout the duration of the open season. The proposed amendment is expected to extend the productive part of the season.

         An analysis of the proposed amendment’s sack limit provisions found that the combination of these two measures could result in a total harvest reduction of approximately 17.1%, if fishing effort was equivalent to the 2014-15 season. Additional analysis shows that the average vessel during the 2014-15 season made only 44 trips during the 182-day season, ceased effort by mid-February, and experienced an average daily harvest of 23 sacks. By providing the opportunity to conduct trips further into the season and harvest more sacks per day, the proposed amendments, if adopted, are not expected to result in a reduction in total landings over the season. Reducing the daily sack limit and eliminating harvesting one day per week could extend the effective harvest season during a time when oyster yield (meat-weight to shell-weight) is highest and more valuable to the commercial industry. The department worked closely with the Oyster Advisory Workgroup in developing the proposed amendment.

         The proposed amendment to §58.23, concerning Non-commercial (Recreational) Fishing, would close Sunday to recreational harvest during recreational oyster season, for the same reasons discussed earlier in this preamble concerning commercial oyster season.

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 a) the potential for increased oyster production by repopulating damaged public oyster reefs and allowing these oysters to reach market size for subsequent recreational and commercial harvest, and b) providing a more stable price structure by extending the season.

         (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 adverse economic effects on small businesses, micro-businesses, and persons required to comply with the amendments as proposed. However, those effects will be minimal and short-term in nature. The proposed rules would affect persons licensed by the department to harvest and sell oysters taken from public water. Department data indicate that approximately 1,058 people per year purchase a license that allows the sale of oysters (508 commercial oyster boat license, 550 commercial oyster boat captain’s license). To ensure that this analysis captures every small or micro-business affected by the proposed rules, the department assumes that most, if not all businesses affected by the proposed rules qualify as small or micro-businesses.

         The rules as proposed would prohibit the commercial harvest of oysters from a small portion of public oyster reefs in Galveston bay and from Half-Moon Reef in Matagorda Bay, and would reduce the daily allowable harvest from 50 sacks per day to 40 while also removing Sunday as a harvest day.

         The department requires commercial oyster fishermen to report oyster catch by location, weight, and selling price, though the location information is at a much larger scale than the areas proposed for closing. However, during the most recent oyster season (November 1, 2014 – April 30, 2015), 89 licensed commercial oyster boats reported landing oysters from public oyster reefs in Lower Galveston Bay where the proposed closure areas would be located. Using the same commercial landings data, the dollar value of the annual catch from the Lower Galveston Bay area by these vessels ranged from $40 to $53,100, with an average of $5,520. These values are based on reported harvest from the 66,847 acres encompassing Lower Galveston Bay. The department’s commercial landings program does not allow harvest locations to be defined at the level that would be necessary to compare a closure impact for the 28 acres in the proposed areas in Lower Galveston Bay. However, since the areas proposed for temporary closure were selected for restoration due to a scarcity of oysters present on the reef, the amount of commercial harvest would be minimal.

         The department has considered other regulatory approaches to achieve the goal of the proposed amendments without imposing adverse economic impacts on small and microbusinesses. The department considered status quo. That alternative was rejected because the goal of the proposed amendments is to restore public oyster reefs in Galveston Bay, which is intended to increase the commercial viability of the fishery. The status quo approach would not only fail to achieve the goal of the proposed rules, but would also have the effect of degrading the long-term viability of the reef complex. Additionally, the department considered allowing a closely monitored commercial harvest while conducting the restoration effort. That alternative was rejected because it would complicate or perhaps prevent restoration of oyster reefs and would require manpower and resource commitments that would be prohibitive for the department.

         In the 2014 rulemaking (39 TexReg 6509, which implemented the initial Half-Moon Reef closure), the department determined that there would be no adverse economic impacts to small or micro-businesses as a result of the closure. Prior to the initial closure of the Half Moon Reef complex in 2014 department sampling data had shown there were few oysters living on the reef complex in Matagorda Bay and that the regulated community did not harvest from this reef. On this basis, the department has determined that a regulatory flexibility analysis under Government Code, Chapter 2006, is not necessary for the enlargement and extension of the Half-Moon Reef closure.

         The proposed amendments also would reduce the daily bag limit for commercial oyster harvest from 50 sacks to 40 sacks and close Sunday to commercial oyster harvest. The combined effect of these two provisions is expected to result in a reduction in the total number of sacks harvested during the early portion of the season but an increase in the total number of sacks harvested during the later months. The effect of the proposed possession limit reduction, along with the curtailment of lawful harvesting on Sundays, should provide a more stable and consistent price structure as well as an increased harvest opportunity over the course of the season by reducing the impacts caused by large numbers of fishermen converging on reef areas during the months of November and December.

         Participation in the department’s trip ticket reporting system is required for all commercial licensees, and furnishes accurate records of all commercial fishing activity, including the oyster fishery. Using the reported daily landings per trip for the most recent season (November 2014 – January 2015), had a 40-sack daily possession limit and Sunday closure been in effect this year, it would have resulted in a 17.1% reduction in harvest. Of this potential harvest reduction, the closure of the fishery on Sunday would be responsible for approximately 14.1% of the reduction with the remaining 3.0% coming from the reduction to a 40 sack limit on days when the fishery is open. The reason for the small percentage contribution from lowering the sack limit is that most vessels do not currently catch the allowed daily limit. The average daily sack limit per vessel during this season was 23 (min. = 1, max. = 53). Additionally, the average vessel during the 2014-15 season made 44 day-trips during the 182-day season and ended their fishing activity in mid-February. It is expected that the potential reduction in harvest that will be accomplished by these proposed changes will be made up through trips taken later in the season when oyster quality (meat-weight to shell-weight) is higher and more valuable to the industry.

         (C) The department has determined that the proposed rules will have very little impact upon local employment at the macro or micro level and should result in increased harvest of more marketable oysters over time. As noted in the discussion of economic impacts to small and micro-businesses, the temporary loss of access to the 28 acres in Lower Galveston Bay scheduled for replanting would exert a negligible effect, as these areas are already depleted of oysters and there had been no harvest from Half-Moon Reef in Matagorda Bay prior to the initial planting of cultch in 2014. The reduction in the daily sack limit from 50 to 40 sacks per day and prohibiting harvest on Sundays are not expected to reduce overall harvest during the public season but may delay some of the harvest to later in the season when oysters will be of a higher quality and more valuable to the industry.

         (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.

         These new rules are proposed under Parks and Wildlife Code, §76.115 and §76.301, which, respectively, authorize the commission to close an area to the taking of oysters when the area is to be reseeded or restocked, and regulate the taking, possession, purchase, and sale of oysters.

6. Rule Text.

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

                 (a) – (b) (No change.)

                 (c) Area Closures.

                         (1) (No change.)

                          (2) No person may take or attempt to take oysters within an area described in this paragraph. The provisions of this paragraph cease effect on November 1, 2018[2016].

                                  (A) Galveston Bay.

                                          (i) Todd’s Dump Reef. The area within the boundaries of a line beginning at 29° 29’ 55.4”N, 94° 53’ 40.1”W (29.498733°N, -94.894467°W; corner marker buoy A); to 29° 29’ 55.4”N, 94° 53’ 30.6”W  (29.498724°N, -94.891834°W; corner marker buoy B); thence to29° 29- 46.6”N, 94° 53- 30.4”W (29.496273°N, -94.891768°W; corner marker buoy C); thence to 29° 29’ 46.6”N, 94° 53’ 40.2”W (29.496273°N, -94.894495°W; corner marker buoy D); and thence back to corner marker buoy A.

                                          (ii) South Redfish Reef. The area within the boundaries of a line beginning at 29° 28’ 21.1”N, 94° 49’ 17.3”W (29.472517°N, -94.821472°W; corner marker buoy A); thence, to 29° 28’ 08.3”N, 94° 49’ 00.3”W (29.468971°N, -94.816744°W; corner marker buoy B ); thence to 29° 27’ 58.9”N, 94° 49’ 09.7”W (29.466359°N, -94.81935°W; corner marker buoy C); thence to 29° 28’ 12.0”N, 94° 49’ 26.5”W (29.469989N, -94.824025°W; corner marker buoy D); and thence and back to corner marker buoy A.

                                          (iii) Texas City 1 (Mosquito Island). The area of Middle Reef contained area within the boundaries of a line beginning at 29° 23’ 52.1”N, 94° 52’ 41.3”W  (29.397811°N, -94.878138°W; corner marker buoy A); thence to 29° 23’ 52.3”N, 94° 52’ 39.2”W  (29.39786°N, -94.87757°W; corner marker buoy B); thence to 29° 23’ 45.1”, 95° 52’ 37.9”W (29.395867°N, -94.877184°W; corner marker buoy C); thence to 29° 23’ 44.9”N, 95° 52’ 39.9”W (29.395813°N, -94.877753°W; corner marker buoy D); and thence back to corner marker buoy A.

                                          (iv) Texas City 2 (Fishing Pier). The area within the boundaries of a line beginning at 29° 22’ 58.2”N, 94° 51’ 39.7”W (29.382833°N, -94.861037°W; corner marker buoy A); thence to 29° 22’ 57.5”N, 94° 51’ 36.2”W (29.382645°N, -94.860069°W; corner marker buoy B); thence to 29° 22’ 56.3”N, 94° 51’ 36.6”W (29.382301°N, -94.860169°W; corner marker buoy C); thence to 29° 22’ 57.0”N, 94° 51’ 40.1”W  (29.382491°N, -94.861135°W; corner marker buoy D); and thence back to corner marker buoy A.

                                          [(i) Hannah Reef. The area within the boundaries of a line beginning at 29° 29’ 17.7"N, 94° 42’ 43.9"W (corner marker buoy A); to 29° 29’ 2.9"N, 94° 42’ 9.7"W (corner marker buoy B); thence to 29° 28’ 44.3"N, 94° 42’ 16.8"W (corner marker buoy C); thence to (29° 29’ 0.6"N, 94° 42’ 52.8"W (corner marker buoy D); and thence back to corner marker buoy A.]

                                          [(ii) Middle Reef (CCA). The area within the boundaries of a line beginning at 29° 30’ 49.3"N, 94° 39’ 53.2"W (corner marker buoy A); thence, to 29° 30’ 39.3"N, 94° 39’ 40.9"W (corner marker buoy B ); thence to 29° 30’ 35.0"N, 94° 39’ 46.1"W (corner marker buoy C); thence to 29° 30’ 45.1"N, 94° 39’ 58.2"W (corner marker buoy D); and thence and back to corner marker buoy A.]

                                          [(iii) Middle Reef. The area of Middle Reef contained area within the boundaries of a line beginning at 29° 30’ 13.5"N, 94° 39’ 22.4"W (corner marker buoy A); thence to 29° 30’ 2.3"N, 94° 39’ 10.8"W (corner marker buoy B); thence to 29° 29’ 58.2"N, 94° 39’ 15.8"W (corner marker buoy C); thence to 29° 30’ 10.0"N, 94° 39’ 27.9"W (corner marker buoy D); and thence back to corner marker buoy A.]

                                          [(iv) Pepper Grove Reef. The area within the boundaries of a line beginning at 29° 29’ 49.6"N, 94° 40’ 4.4"W (corner marker buoy A); thence to 29° 29’ 50.0"N, 94° 39’ 27.8"W (corner marker buoy B); thence to 29° 29’ 21.8"N, 94° 39’ 27.3"W (corner marker buoy C); thence to 29° 29’ 21.4"N, 94° 39’ 42.6"W (corner marker buoy D); thence to 29° 29’ 15.6"N, 94° 39’ 42.5"W (corner marker buoy E); thence to 29° 29’ 15.4"N, 94° 40’ 4.0"W (corner marker buoy F); and thence back to corner marker buoy A.]

                                  (B) Matagorda Bay — Half-Moon Reef. The area within the boundaries of a line beginning at 28° 34’ 18.8"N, 96° 14’ 08.4"W (28.571889°N, -96.235667°W; corner marker buoy A); thence to 28° 34’ 15.7N, 96° 13’ 59.4"W (28.571028°N, -96.233167°W; corner marker buoy B); thence to 28° 33’ 53.8"N, 96° 14’ 19.5W (28.564944°N, -96.23875°W; corner marker buoy C); thence to 28° 33’ 57.0"N, 96° 14’ 28.5"W (28.565833°N, -96.24125°W; corner marker buoy D); and thence back to corner marker A. [The area within the boundaries of a line beginning at 28° 34’ 18.8"N, 96° 14’ 08.4"W (corner marker buoy A); thence to 28° 34’ 15.7N, 96° 13’ 59.4"W (corner marker buoy B); thence to 28° 33’ 53.8"N, 96° 14’ 19.5W (corner marker buoy C); thence to 28° 33’ 57.0"N, 96° 14’ 28.5"W (corner marker buoy D); and thence to 28° 34’ 18.8"N, 96° 14’ 08.4"W (corner marker buoy A).]

         §58.22. Commercial Fishing.

                 (a) – (b) (No change.)

                 (c) Seasons and Times.

                          (1) (No change.)

                          (2) Legal oyster fishing days — Monday through Saturday.

                          (3)[2] Legal oystering hours — sunrise to 3:30 p.m.

                 (d) Possession Limits. It is unlawful to take in one day, for pay or the purpose of sale, barter, or exchange, or any other commercial purpose, or to have on board any licensed commercial oyster boat more than:

                          (1) 40[50] sacks of culled oysters of legal size; or

                          (2) (No change.)

                 (e) — (f) (No change.)

         §58.23. Non-commercial (Recreational) Fishing.

                 (a) – (b) (No change.)

                 (c) Seasons and Times.

                          (1) (No change.)

                          (2) Legal oyster fishing days—Monday through Saturday.

                          (3)[(2)] Legal oystering hours — sunrise to 3:30 p.m.

                 (d) – (e) (No change.)

         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