Commission Agenda Item No. 9
Exhibit A

STATEWIDE RECREATIONAL FISHING PROCLAMATION
EXEMPTED FISHING PERMIT (EFP)
PROPOSAL PREAMBLE

1. Introduction.

        The Texas Parks and Wildlife Department proposes an amendment to §57.801, concerning Powers of the Executive Director. The proposed amendment would authorize the executive director of the department to implement fishery management plans approved by the U.S. Secretary of Commerce, including but not limited to Exempted Fishing Permits (EFPs), when such action is deemed to be in the best interest of the State of Texas. 

        Despite increases in red snapper stocks to levels not seen before (SouthEast Data, Assessment, and Review 2013), the recreational season established by federal regulation for the red snapper fishery in Texas has steadily dwindled in length. In 2010 the federal recreational red snapper season was 77 days, but has since decreased precipitously, to the point that in 2017 it would have been just three days (Table 1). The proposed three-day recreational season resulted in controversy involving recreational anglers, communities, and elected officials at the local, state, and federal levels in all states bordering the Gulf of Mexico, prompting the U.S. Secretary of Commerce to initiate a process in which federal regulators worked with the affected states (Texas, Louisiana, Mississippi, Alabama, and Florida) to develop an eventual season of 42 days.

Table 1. Number of days allocated by National Marine Fisheries Service for recreational red snapper fishing in federal waters of the Gulf of Mexico, 2010 – 2017.

        In September of 2017 the National Marine Fisheries Service sent the Gulf States marine fisheries directors a letter inviting them to apply for an Exempted Fishing Permit (EFP) that would authorize the individual states to take the lead on red snapper management activities in the Gulf of Mexico.  This letter was prompted by Senate Report 114-239, which directed the National Oceanic and Atmospheric Administration (NOAA) to develop and support a fishery management pilot program that would allow Gulf States to take the lead in reef fish management activities, specifically for red snapper.  EFP’s are issued for conducting research or other fishing activities that would otherwise be prohibited by regulations.

        In response to this request the department submitted an EFP application requesting exemption from the federal red snapper season to test data collection and quota monitoring methodologies during 2018 and 2019.  If approved, fishing under the EFP in Texas would begin this year for all sectors of the recreational red snapper fishery (private (approximately 24,000 anglers), charter-for-hire (212 federally-permitted charter boats), and headboat anglers (16 federally-permitted headboats)).  Based on historical landings data, the department requested 16% of the gulf-wide annual recreational allowable catch limit (ACL) as the quota for the Texas catch.  In 2017 the gulf-wide ACL for the recreational fishery was just over 6.6 million pounds. If the gulf-wide ACL for 2018 and 2019 remained at this level, Texas’ quota would be approximately 1.1 million pounds of red snapper annually.

        NMFS approved the EFP but excluded the federal for-hire component from inclusion in the Texas EFP. Under the terms of the EFP, landings of red snapper would be monitored weekly from data collected through the Texas Marine Sport Harvest Monitoring Program and validated self-reported data from a smart-phone application (iSnapper). All red snapper landed in Texas will count against Texas’ quota, and the fishery in both state and federal waters must be closed when the combined estimated recreational landings are projected to meet the quota. In order to avoid exceeding the quota, the department has determined that there must be a regulatory mechanism at the state level to allow the department to quickly close the fishery in state and federal waters when the quota is reached. Therefore, the proposed amendment clarifies the existing authority granted to the executive director to take the necessary action to implement management plans ultimately approved by the U.S. Secretary of Commerce (including EFP’s) in the Exclusive Economic Zone (federal waters).

Literature Cited

SEDAR 31. 2013. Stock assessment report Gulf of Mexico red snapper. Southeast Data, Assessment, and Review. North Charleston, South Carolina.

2. Fiscal Note.

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

3. Public Benefit/Cost Note.

        Mr. Robinson has also 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 potential for increased angling opportunity through longer seasons for recreational anglers to participate in the red snapper fishery in both state and federal waters of the Gulf of Mexico.

        (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), in April 2008, the Office of the Attorney General issued guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small businesses. These guidelines state that “[g]enerally, there is no need to examine the indirect effects of a proposed rule on entities outside of an agency’s regulatory jurisdiction.” The 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. The guidelines also list examples of the types of costs that may result in a “direct economic impact.” Such costs may include costs associated with additional recordkeeping or reporting requirements; new taxes or fees; lost sales or profits; changes in market competition; or the need to purchase or modify equipment or services.

        The department has determined that the rule as proposed will not adversely affect small businesses, micro-businesses, or rural communities, and if anything will result in positive economic impacts for all three categories of entities. Accordingly the department has not prepared the economic impact statement or regulatory flexibility analysis described in Government Code, Chapter 2006.

        (D) 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.

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

        (F) 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.

        (G) The department has determined that because the rule as proposed does not impose a cost on regulated persons, it is not necessary to repeal or amend any existing rule.

        (H) In compliance with the requirements of Government Code, §2001.0221, the department has prepared the following Government Growth Impact Statement (GGIS).  The rule as proposed, if adopted, will:

                 (1) neither create nor eliminate a government program;

                 (2) not result in an increase or decrease in the number of full-time equivalent employee needs;

                 (3) not result in a need for additional General Revenue funding;

                 (4) not affect the amount of any fee;

                 (5) not create a new regulation;

                 (6) neither increase nor decrease the number of individuals subject to regulation;

                 (7) expand, limit, or repeal an existing regulation (by authorizing the executive director to implement federal fisheries management plans); and

                 (8) not significantly affect the state’s economy positively or adversely.

4. Request for Public Comment.