Commission Agenda Item No. 3
Presenter:
Jarret Barker
Action
Passive Gear Tagging Rules
Recommended Adoption of Proposed Changes
November 7, 2019
I. Executive Summary: With this item, the staff seeks adoption of proposed amendments to regulations governing certain passive fishing gear to facilitate the removal of abandoned passive fishing gear from public waters, make the presence of passive fishing gear identifiable to all users of public waters, and minimize the unintended take of aquatic resources.
The proposed amendments would:
- alter definitions for jug lines, minnow traps, perch traps, throwlines, and trotlines;
- stipulate the dimensions and colors of floats required; and
- reduce the validity of gear tags from ten days to four days.
II. Discussion: Under Texas Parks and Wildlife Code chapter 61, the Texas Parks and Wildlife Commission (Commission) has the authority to regulate: the periods of time when it is lawful to take or possess aquatic animal life in this state; the means, methods, and places in which it is lawful to take or possess aquatic animal life in this state; and the region, county, area, body of water, or portion of a county where aquatic animal life may be taken or possessed.
At the May 21, 2019, Commission Work Session meeting, the staff briefed the Commission on issues related to fishing gear abandoned in public waters, including the results of field trials of long-term trotline sets. The Commission subsequently directed the staff to develop proposed rules to address certain passive fishing gears.
The staff developed proposed amendments that would alter the definitions for juglines, minnow traps, perch traps, throwlines, and trotlines by stipulating that each type of gear must have required floats and gear tags attached in order to validate it as lawful gear. The proposed amendments would enable the Texas Parks and Wildlife Department (TPWD) to distinguish bona fide fishing gear from abandoned fishing gear and litter and to facilitate the removal by TPWD of unlawful or abandoned passive fishing gear from public waters, thereby preventing abandoned devices from continuing to negatively impact fish and wildlife populations and public safety.
The proposed amendments would also reduce the validity of gear tags for juglines, minnow traps, perch traps, throwlines, and trotlines from ten days to four days. Reducing the period of validity would encourage a proactive approach to the use of passive fishing gear. Scientific investigations conclusively show that the majority of mortalities as a result of “ghost fishing” (the continuing of effect of unattended passive gears) occurs after four days.
At the August 21, 2019, Commission Work Session meeting, the staff was authorized to publish the proposed rules in the Texas Register for public comment. The proposed rules appeared in the September 27, 2019 issue of the Texas Register (44 TexReg 5599). A summary of public comment on the proposed rules will be presented at the time of the hearing.
III. Recommendation: The staff recommends the Texas Parks and Wildlife Commission adopt the proposed motion:
“The Texas Parks and Wildlife Commission adopts amendments to §57.971, concerning Definitions, and §57.973 concerning Devices, Means and Methods, with changes as necessary to the proposed text as published in the September 27, 2019 issue of the Texas Register (44 TexReg 5599).”
Commission Agenda Item No. 3
Exhibit A
PASSIVE GEAR TAGGING RULES
PROPOSAL PREAMBLE
1. Introduction.
The Texas Parks and Wildlife Department proposes amendments to §57.971, concerning Definitions and §57.973, concerning Devices, Means, and Methods. The proposed changes would alter definitions and gear tag requirements for jug lines, minnow traps, perch traps, throwlines, and trotlines to facilitate the removal of abandoned fishing gear from public waters.
The proposed amendment to §57.971 would alter the definitions for juglines, minnow traps, perch traps, throwlines, and trotlines by stipulating that each type of gear must have the required floats and tags attached in order to be valid as lawful gear. The changes are necessary in order to distinguish bona fide fishing gear from abandoned fishing gear and litter.
The proposed amendment to §57.973, concerning Devices, Means, and Methods, would reduce the period of validity for a gear tag from 10 days to four days. Under current rules, gear tags are required to affixed to most fishing devices that are typically left unattended, such as trotlines. The department has determined that because such devices continue to fish and represent a danger to birds and mammals when they are abandoned, it is necessary to require a gear tag to be employed when they are used. Under Parks and Wildlife Code, §12.1105, the department is authorized to seize a device that is in or on water in violation of a regulation of the commission. By defining juglines, minnow traps, perch traps, throwlines, and trotlines as devices that must be affixed with a valid gear tag and float in order to be lawfully used, the department will be able to seize and remove unmarked devices, thereby preventing abandoned devices from continuing to negatively impact fish and wildlife populations. Removal of such devices will also assist the department in determining actual levels of fishing effort for various devices and will have the additional benefit of reducing threats to human health and safety.
By establishing a period of validity for gear tags of four days, the department intends to encourage a proactive approach to the use of passive fishing gears. Scientific investigations conducted by the department conclusively show that the majority of mortalities as a result of “ghost fishing” (the continuing of effect of unattended passive gears) occur after four days.
2. Fiscal Note.
Ken Kurzawski, Program Director, Inland Fisheries Division, has determined that for each of the first five years that the rules as proposed are in effect, there will be minimal fiscal implications to the department and county governments as a result of administering or enforcing the rules. Parks and Wildlife Code, §12.1105, establishes procedures by which the department may dispose of unlawful fishing gear that is seized by the department. These procedures involve giving notice to the county court and require posting at the courthouse.
The proposed amendments will not result in fiscal implications to any other units of state or local government.
3. Public Benefit/Cost Note.
Mr. Kurzawski 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 proposed rules will be the dispensation of the agency’s statutory duty to protect and conserve the fisheries resources of this state by reducing the negative impacts of abandoned fishing gear, the increased ability of the department to determine the impacts of various gears on fish populations, the removal of what effectively is litter, and the reduction of threats to human health and safety resulting from abandoned fishing gear.
There will be no adverse economic effect on persons required to comply with the rules as proposed.
(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, micro-businesses, or rural communities. 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 impacts to small businesses, micro-businesses, or rural communities. 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 proposed amendments regulate various aspects of recreational license privileges that allow individual persons to pursue and harvest fisheries resources in this state and therefore do not directly affect small businesses, micro-businesses, or rural communities. Therefore, neither the economic impact statement nor the regulatory flexibility analysis described in Government Code, Chapter 2006, is required.
The department also has determined that the proposed amendment to §57.992 will not directly affect small businesses, micro-businesses, or rural communities. Therefore, the department has not prepared the economic impact statement or regulatory flexibility analysis described in 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.
(F) In compliance with the requirements of Government Code, §2001.0221, the department has prepared the following Government Growth Impact Statement (GGIS). The rules 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) will not expand, limit, or repeal an existing regulation;
(7) neither increase nor decrease the number of individuals subject to regulation; and
(8) not positively or adversely affect the state’s economy.
4. Request for Public Comment.
Comments on the proposal may be submitted to Ken Kurzawski (Inland Fisheries) at (512) 389-4591, email: ken.kurzawski@tpwd.texas.gov. Comments also may be submitted via the department’s website at https://www.tpwd.texas.gov/business/feedback/public_comment/.
5. Statutory Authority.
The amendments are proposed under the authority of Parks and Wildlife Code, Chapter 61, which requires the commission to regulate the periods of time when it is lawful to hunt, take, or possess aquatic animal life in this state; the means, methods, and places in which it is lawful to take, or possess aquatic animal life in this state; the species, quantity, age or size, and, to the extent possible, the sex of the aquatic animal life authorized to be taken or possessed; and the region, county, area, body of water, or portion of a county where aquatic animal life may be taken or possessed.
The proposed amendments affect Parks and Wildlife Code, Chapter 61.
6. Rule Text.
§57.971. Definitions. The following words and terms, when used in this subchapter shall have the following meanings, unless the context clearly indicates otherwise. All other words and terms in this subchapter shall have the meanings assigned in the Texas Parks and Wildlife Code.
(1) — (22) (No change.)
(23) Gear tag — A tag constructed of material as durable as the device to which it is attached. The gear tag must be legible, contain the name, [and] address, and customer number of the person using the device, and, except for saltwater trotlines and crab traps fished under a commercial license, the date the device was set out.
(24) — (27) (No change.)
(28) Jug line — A fishing line with five or less hooks and a gear tag tied to a free-floating device.
(29) — (42) (No change.)
(43) Throwline — A fishing line with:
(A) five or less hooks;[and with]
(B) one end attached to a permanent fixture;
(C) a float attached at or above the water line; and
(D) a gear tag.[Components of a throwline may also include swivels, snaps, rubber and rigid support structures.]
(44) — (45) (No change.)
(46) Trotline — A nonmetallic main fishing line with:
(A) more than five hooks;[attached and with]
(B) each end attached to a fixture;
(C) floats attached at or above the water line; and
(D) a gear tag.
(47) — (48) (No change.)
§57.973 Devices, Means and Methods
(a) – (f) (No change.)
(g) Device restrictions. Devices legally used for taking fresh or saltwater fish or shrimp may be used to take crab as authorized by this subchapter.
(1) – (8) (No change.)
(9) Jugline. For use in fresh water only. Non-game fish, channel catfish, blue catfish and flathead catfish may be taken with a jugline. It is unlawful to use a jugline:
(A) with invalid gear tags. Gear tags must be attached within six inches of the free-floating device, are valid for 4[10] days after the date set out, and must include the number of the permit to sell non-game fish taken from fresh water, if applicable;
(B) for commercial purposes that is not marked with an orange free-floating device that is less than six inches in length and three inches in width;
(C) for non-commercial purposes that is not marked with a free-floating device of any color other than orange that is less than six inches in length and three inches in width;
(D) (No change.)
(10) (No change.)
(11) Minnow trap (fresh water and salt water). It is unlawful to use a minnow trap that is not marked with a floating, visible buoy of any color other than orange that is not less than six inches in height and three inches in width. The buoy must have a gear tag attached[equipped with a gear tag]. A gear tag is valid for 4[10] days after the date it is set out.
(A) – (B) (No change.)
(12) Perch traps. For use in salt water only.
(A) (No change.)
(B) It is unlawful to fish a perch trap that:
(i) – (ii) (No change.)
(iii) that is not marked with a floating visible orange buoy not less than six inches in height and six inches in width. The buoy must have a gear tag attached. Gear tags are valid for 4[10] days after date set out.
(13) – (21) (No change.)
(21) Throwline. For use in fresh water only.
(A) – (B) (No change.)
(C) It is unlawful to use a throwline:
(i) that is not equipped with a gear tag. A gear tag is valid for 4 [10] days after the date it is set out;
(ii) for commercial purposes that is not marked by an orange float that is less than six inches in length and three inches in width; and
(iii) for non-commercial purposes that is not marked with a float of any color other than orange that is less than six inches in length and three inches in width.
(22) Trotline.
(A) (No change.)
(B) It is unlawful to use a trotline:
(i) (No change.)
(ii) with invalid gear tags. Gear tags must be attached within three feet of the first hook at each end of the trotline and are valid for 4[10] days after date set out, except on saltwater trotlines, a gear tag is not required to be dated;
(iii) — (iv) (No change.)
(v) with the main fishing line, [and] attached hooks, and stagings above the water’s surface.
(C) In fresh water, it is unlawful to use a trotline:
(i) — (ii) (No change.)
(iii) for commercial purposes that is not marked by an orange float that is less than six inches in length and three inches in width attached to each end fixture; and
(iv) for non-commercial purposes that is not marked with a float of any color other than orange that is less than six inches in length and three inches in width attached to each end fixture.
(D) (No change.)
(23) (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