Proposed Amendments to the Statewide Oyster Proclamation

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STATEWIDE OYSTER FISHERY PROCLAMATION

PROPOSED PREAMBLE

1. Introduction

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

        The proposed amendments generally are intended to protect, conserve, and enhance the oyster resources of the state by extending harvest opportunities later into the season; reducing the frequency and duration of  in-season closures by reducing the daily sack limit from 40 to 25 and closing Monday as a legal fishing day; lowering the limit for undersize oysters in a cargo of oysters from 15% to 5%; and closing oyster harvest in seven minor bays and within 300 feet of shorelines in areas designated by the Texas Department of State Health Services as Approved or Conditionally Approved for the harvest of oysters.

        The effects of several natural disaster events occurring along the coast of Texas over the last several years, beginning with Hurricane Ike in 2008 and culminating with major flooding events in 2015-2016, together with high harvest pressure, have exacted a biological and economic toll on Texas’ oyster resources and associated industries. The cumulative impacts of these events have contributed to declining trends in oyster resources, and consequently, in commercial landings. Commercial landings in 2015 declined to levels not seen since the early 1980’s.

        Hurricane Ike’s passage over Galveston Bay in 2008 impacted the Galveston Bay ecosystem and was especially destructive to the bay’s extensive oyster habitat. Over 8,000 acres, representing approximately half of the bay’s reefs, were damaged or destroyed due to sedimentation from the storm surge.

        Between 2010 and early 2015 Texas experienced the second-worst drought in state history, surpassed only by the drought of the 1950’s. The worst one-year drought record in Texas’ history was 2011 and was recorded as a 500-year drought of record. Salinities in coastal bay systems rose to levels not previously observed. In Galveston Bay, salinities reached 42 parts per thousand, the highest level recorded in forty years of department monitoring. Though high salinities are not necessarily detrimental to oysters, but they do seem to allow for greater predation and disease. These predators and diseases would normally not be as prevalent in lower salinities. The Hays rocksnail (“oyster drill”), Stramonita haemastoma canaliculata, is the most destructive predator of eastern oysters in the Gulf of Mexico (White and Wilson 1996) but are limited by intolerance to low salinity (Chapman 1959, Hofstetter 1977). Reports of predation rates of 80% on young oysters have been reported (May and Bland 1970; Hofstetter 1977; Chapman 1959).

        At the height of the 2010-2015 drought, commercial oyster fishermen reported increased catches of oyster drill on beds in Galveston Bay that rarely produced this predatory snail in the past. Fishery-independent sampling by the department also has documented increased catches of oyster drill in oyster dredge samples and in locations in the bay system where they had not been previously documented.

        Oyster resources were further impacted by flood events in 2015 and 2016. Analysis of climate data has shown that dipole events (an abrupt year-to-year transition from drought to flood), are a frequent occurrence in the Southern Great Plains (Texas and Oklahoma) (Christian et al. 2015).  As one of the worst droughts in Texas history came to an end in early 2015 it was followed by significant rainfall events that resulted in some of the worst flooding in the state’s history. Flooding began in April 2015 and continued through May, reaching official disaster status with the declaration of six State Disaster Proclamations (five of which were elevated to Federal Flooding Disasters in eleven coastal counties designated by the National and Oceanographic and Atmospheric Administration (NOAA) (http://www.census.gov/geo/landview/lv6help/coastal_cty.pdf)).  Flooding was further exacerbated with the onset of Tropical Storm Bill (June 16, 2015), which significantly impacted Matagorda and San Antonio bays.  Disaster-level flooding occurred again in the fall of 2015 and spring of 2016.

        Trinity River inflows to Galveston Bay in 2015 were recorded at levels 154% above the long-term mean river inflow (1941-2015) and by May 2016, inflows from the Trinity River had already exceeded the long-term yearly inflow rates by 66%. Similar trends were recorded for Matagorda Bay (126% above long-term yearly inflow rates), Aransas Bay (89% above) and San Antonio Bay (65% above). These inflow rates had specific consequences for all stages of the oyster life cycle.  Oysters are an immotile (incapable of voluntary relocation) species that settle out of the water column within approximately two weeks of spawning.  Survival at settlement is directly related to two primary characteristics: the availability of elevated, hard substrate for attachment and salinities conducive to survival.  Oyster reefs occur where these two characteristics are most abundant; thus, reefs are continually settled by new oysters and the reef grows.  During flooding events, oyster abundance and filtration rates decline precipitously (Beseres Pollack, et. al., 2011).

        The preferred salinity range for oysters is 14-30‰ (mille, or tenth of a percent) for adults and 18-23‰ for egg and larval development.  Spat (juvenile oysters) settling is optimized at 16-22‰ with diminishing settlement below 16‰ (Pattillo et. al., 1997).  While spawning in Texas is likely to occur in every month except July and August, peak spawnings are May to early June and again in September and October.

        In 2015-16, the traditionally highest oyster producing bays (Copano and Galveston) had 14 and 15 continuous months, respectively, of suboptimal salinities for spat settlement. All major bays had suboptimal spat settlement conditions during the spring 2015 spawning season with suboptimal conditions persisting in Galveston and Copano bays through the fall spat settlement season as well (unpublished department data). Additionally, when salinities drop below 10‰ “limited or no recruitment” occurs (La Peyre et al., 2013).  Based on the average monthly salinities reported for Galveston Bay for April through July 2015, limited recruitment is believed to have occurred. Similarly, monthly mean salinities for 2016 suggest sub-optimal salinities for recruitment between March and May, which appears to have resulted in the loss of a second recruitment cohort (age class). Copano Bay experienced similar low salinity levels (<10‰) between May and August 2015, which may have resulted in limited recruitment, and from April 2015 through May 2016 experienced salinity levels below the optimal level for spat settlement. Similar sub-optimal conditions were observed in Matagorda, San Antonio, and Aransas bays.

        Mechanically, flood inflows are also capable of sweeping any oyster larvae out of the bays and into non-optimal habitats, resulting in direct losses of larvae (Wang et. al., 2008).  This is particularly devastating for Texas bays as the historically high volume and continual inflow events may have also led to minimal recruitment to the reefs. These sub-optimal salinity conditions and long-term high volume events have the potential to create long-term adverse consequences for Texas oyster resources.

        A strong temperature-salinity linkage may negatively impact oyster recruitment, survival and growth. As salinities fall below 5‰ during summer months and water temperatures increase above 25⁰C, oyster conditions degrade.  From May 2015 through mid-October water temperatures exceeded 25⁰C while salinities fell below 5‰ for Galveston, San Antonio and Copano Bays. Average salinities in Matagorda and Aransas Bays were 6.3 and 8.7‰, respectively, which suggests localized areas of degradation.

        Each of these environmental events, taken singularly, would not necessarily be expected to result in significant losses of oyster resources and associated negative commercial impacts; however, the cumulative impacts over such a relatively short timeframe most certainly contributed to reduced oyster abundance and the commercial declines observed following the flooding events in 2015 and 2016. Landings (pounds of meat) and ex-vessel values (dockside value) for oysters during 2015 were 1,585,432 pounds and $8,246,302, respectively. These values reflect a 69.1% and 51.1% reduction in landings and ex-vessel value, respectively, from the previous 10-year average.

        To address this situation, the proposed amendment to §58.21, concerning Taking or Attempting to Take Oysters from Public Oyster Beds: General Rules, would lower the tolerance allowed for the quantity of undersize oysters in a cargo from 15% to 5%, which is the statutory minimum (Parks and Wildlife Code, §76.112(b)).

        As oyster resources have been reduced due to environmental impacts and overharvest, the illegal harvest of undersize oysters has increased. Citations for possession of undersize oysters increased 149% during the 2016-17 oyster season, compared to the previous year. In February, 2017, thirty-seven citations were issued in three major bay systems for unlawful possession of undersize oysters. In these cases, 68% of the cargos were found to be composed of more than 30% undersize oysters and 20% of the cases had cargos composed of more than 50% undersize oysters. Continued harvest of undersize oysters can result in economic impacts to the oyster industry because areas closed by the department under the authority of Parks and Wildlife Code, §76.115, must remain closed longer to allow small oysters to grow to legal size. Additionally, the removal of small oysters further delays the recovery of the resource as these oysters are sexually mature and would contribute to recruitment if left on the reefs until they reach legal size.

        The proposed amendment to §58.21 would also close seven minor bays to all oyster harvest (recreational and commercial) and create a 300-foot buffer zone along shorelines located in areas designated by DSHS as Approved or Conditionally Approved for oyster harvest. The minor bays proposed for closure are unique in that they are relatively shallow systems containing intertidal and shallow-water oyster habitat. The proximity of shallow water and intertidal oyster habitat to other estuarine habitat types (e.g. seagrasses and marshes) is a major factor affecting macrofauna (invertebrates that live on or in sediment, or attached to hard substrates) density and community composition (Grabowski et al. 2005; Gain et al. 2017). Research has demonstrated that densities of macrofaunal organisms and species diversity are higher within oyster habitat compared to seagrass beds or marsh-edge interfaces (Gain et al. 2017). Further, nekton (aquatic animals that are able to swim and move independently of water currents) and benthic crustaceans (crustaceans at the lowest depth) densities are considerably higher on intertidal oyster habitat compared to open-water subtidal oyster habitat (Robillard et al. 2010; Nevins et al. 2014; Froeschke et al. 2016). Over 300 different species have been documented using oyster reefs as habitat in North Carolina (Wells 1961).

        Until recently, oyster resources located in these minor bays and shoreline areas have been rarely exploited, as commercial fishing has typically been directed towards the more-profitable and efficiently harvested reef complexes in larger and deeper waters; thus, the minor bays have functioned as de facto spawning reserves because harvest pressure has been minimal and oyster larvae produced from these areas are available to populate oyster habitat on adjacent reefs and bays. As oyster resources have become depleted on deep-water reefs, however, commercial fishermen have redirected their efforts to shallow-water reefs. In 2017, the department received a number of reports of oyster harvest in minor bays, including Christmas Bay, and received a petition requesting closing of oyster harvest in Christmas Bay.

        With respect to recreational harvest, current rules allow recreational fishermen to retain up to two sacks of oysters per day during the public season; however, the biological impact of this harvest is minimal. Over the last 10 years the department has issued an average number of 36 sport oyster boat licenses per year (a sport oyster boat license is required to recreationally harvest oysters by use of tongs or dredge; otherwise, recreational harvest must be manual). The department conducts intercept surveys at boat access sites (boat ramps and marinas) throughout the year and records catch composition and effort for all species landed. The 33-year summary (1983-2016) of department data indicates 296 intercepts with anglers possessing oysters (an average of 9 intercepts per year). During the 2016 low-use season (covering the time period of the public oyster season, November through April) the department estimates that recreational fisherman spent 704 hours harvesting oysters, which resulted in a harvest of approximately 10.6 sacks (68.1 pounds estimated meat weight) over the six-month season.

        The proposed amendment to §58.22, concerning Commercial Fishing, would reduce the commercial possession limit for oysters from 40 sacks per day to 25 and would close Monday to commercial oyster harvest during the public season (November 1 of one year through April 30 of the following year). The combined effect of these two provisions, if adopted, is expected to be 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, which is expected to provide a more stable and consistent price structure as well as a lengthening of the productive part of the season, both in terms of sacks per vessel landed and effective days fished.

        A sack-limit analysis of the proposed amendments found that the proposed measures could result in a total harvest reduction of approximately 31% if there is no change in fishing behavior. Additional analysis of the 2015-16 season data shows that the average commercial vessel made only 34 trips during the 182-day season and averaged 24 sacks per day. From the first trip to the last trip the total number of days that elapsed was an average of 72 days.  With the ability to expand the number of trips within the 72 days or extend trips further towards the end of the season, no significant reduction in total landings over the season is expected. The combination of the proposed daily sack limit reduction and Monday closure 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.

Literature Cited

Beseres Pollack, Jennifer, Hae-Cheol Kim, Elani K. Morgan, and Paul A. Montagna. 2011. Role of Flood Disturbance in Natural Oyster (Crassostrea virginica) Population Maintenance in an Estuary in South Texas, USA.  Estuaries and Coasts (2011) 34:187–197.

Chapman, C.R. 1959. Oyster drill (Thais haemastoma) predation in Mississippi Sound. Proc. Natl. Shellfish. Assoc. 49:87-97.

Christian, J., K. Christian, and J. Basara. 2015. Drought and Pluvial Dipole Events within the Great Plains of the United States. Journal of Applied Meteorology and Climatology, 54, 1886-1898.

Froeschke, B.F., M.M. Reese Robillard, and G.W. Stunz. 2016. Spatial biodiversity patterns of fish within the Aransas Bay complex, Texas. Gulf Caribb Res 27: 21-32.

Gain, I.E., R.A. Brewton, M.M.R. Robillard, K.D> Johnson, D.L. Smee and G.W. Stunz. 2017. Macrofauna using intertidal oyster reef varies in relation to position within the estuarine habitat mosaic. Marine Biology 164:8. doi: 10.1007/s00227-016-3033-5.

Grabowski, J.H., A.R. Hughes, D.L. Kimbro, and M.A. Dolan. 2005. How habitat setting influences restored oyster reef communities. Ecology 86: 1926-1935.

Hoffstetter, R.P. 1977. Trends in population levels of the American oyster Crassostrea virginica Gmelin on public reefs in Galveston Bay, Texas. Technical Series Number 10. Texas Parks and Wildlife Department, Coastal Fisheries Branch. Austin, TX.

La Peyre, Megan K., B. S. Eberline, T. M. Soniat, J. F. La Peyre. 2013.  Differences in extreme low salinity timing and duration differentially affect eastern oyster (Crassostrea virginica) size class growth and mortality in Breton Sound, LA.  Estuarine, Coastal and Shelf Science 135, p.146-157.

May, E.B. and D.G. Bland. 1970. Survival of young oysters in areas of different salinity in Mobile Bay. Proc. S.E. Assoc. Game Fish Comm. 23:519-521.

Nevins, J.A., J.B. Pollack, and G.W. Stunz. 2014. Characterizing nekton use of the largest unfished oyster reef in the United States compared with adjacent estuarine habitats. J. Shellfish Res. 33: 227-238.

Pattillo, M.E., T.E. Czapla, D.M. Nelson, and M.E. Monaco. 1997. Distribution and abundance of fishes and invertebrates in the Gulf of Mexico estuaries, Volume II: Species life history summaries.  ELMR Rep. No. 11. NOAA/NOS Strategic Environmental Assessments Division, Silver Spring, MD. 377 p.

Robillard, M.M.R., G.W. Stunz and J. Simmons. 2010. Relative value of deep subtidal oyster reefs to other estuarine habitat types using a novel sampling method. J. Shellfish Res. 29: 291-302.

Thompson, R.J., R.L.E. Newell, V.S. Kennedy and R. Mann. 1996. Reproductive processes and early development. In: Kennedy, V.S., Newell, R.I.E, and Eble, A.F (eds) The Eastern Oyster (Crassostrea virginica). Maryland Sea Grant College, University of Maryland, College Park, MD, pages 335-370.

Wang, Hongqing, W. Huangb, M. A. Harwell, L. Edmistonc , E. Johnsona, P. Hsiehd, K. Millad, J. Christensene , J. Stewart, X. Liub. 2008.  Modeling oyster growth rate by coupling oyster population and hydrodynamic models for Apalachicola Bay, Florida, USA.  Ecological Modelling 211, p. 77–89.

Wells, H.W. 1961. The fauna of oyster beds with special reference to the salinity factor. Ecological Monographs 31(3): 239-266.

White, M.E. and E. A. Wilson. 1996. Predators, pests, and competition. In The Eastern Oyster Crassostrea virginica, eds. V.S. Kennedy, R.I.E. Newell, and A.F. Eble, 559-580. College Park, Maryland: Maryland Sea Grant College, University of Maryland.

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 and local governments as a result of enforcing or administering the rules as proposed, as department personnel currently allocated to the administration and enforcement of the oyster management program will administer and enforce the rules as part of their current job duties and resources.

3. Public Benefit/Cost Note.

        Mr. Robinson also has determined that for each of the first five years the new 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 management, protection, and enhancement of the oyster resources of the state, thus ensuring the public of continued recreational and commercial access to oysters and the continued beneficial economic impacts of the oyster fishery to Texas.

        (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), 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 rules as proposed will not result in adverse economic effects on persons who engage in recreational take of oysters, since recreational oyster harvesters will still have the opportunity to harvest, but this rule could impact where they have traditionally harvested oysters.  There will be adverse economic effects on small businesses, micro-businesses, and persons engaged in commercial harvest of oysters who are required to comply; however, those effects are expected to be minimal and temporary, and should result in increased benefits as oyster resources recover. The proposed rules would affect persons licensed by the department to harvest and sell oysters taken from public water. Department data indicate that approximately 1,022 people per year purchase a license that allows the sale of oysters (557 commercial oyster boat license, 465 commercial oyster boat captain’s license). While 1,022 individuals may have a license that allows them to sell, a vessel may be licensed with a commercial oyster boat license and then have someone with a commercial oyster boat captains license running the vessel and even multiple captains may run a vessel during an entire season.    A more direct way to determine the number of vessels impacted is to examine the required reporting information from the first sale of oysters.  This data is required to be reported at the first sale of any commercial product. That data indicates that in 2014-15 season 346, in 2015-16 season 302, and in 2016-17 season 325 vessels had landings.  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 reduce the daily bag limit for commercial oyster harvest from 40 sacks to 25 sacks and close Monday to all oyster harvest. Based on current harvesting practices this is not expected to result in reductions in the overall harvest during the season.  Although there may be a reduction in the total number of sacks harvested during the early portion of the season, it is projected that will be offset by an increase in the total number of sacks harvested during the later months. Additionally, the amendments as proposed should provide a more stable and consistent price structure because of the availability of heavier-yielding oyster meats for the shucking industry. Oysters build up energy reserves through the winter (a process commonly called fattening) (Thompson et al. 1996) in preparation of spawning in the spring. These “fattened” oysters provide a product more desirable for the shucking industry whereas oysters destined for the half-shell (raw) market can be utilized throughout the season.

        Participation in the department’s Trip Ticket Reporting System is required for all commercial licenses and furnishes accurate records, at a trip level, of all commercial fishing activity, including the oyster fishery. The 2015-16 oyster season was used as a baseline to estimate the impacts of a reduction in the sack limit from the current 40-sack per day limit.  Because the current 40-sack limit was implemented for the 2016-17 season, the 2015-16 harvest data was adjusted to simulate harvests had the 40-sack limit been in place for the 2015-16 season. The total harvest with a sack limit of 25 sacks per day was estimated assuming the same number of trips as were made in 2015-16. The estimated reduction in the number of sacks harvested under a 25-sack limit is 14.9% and represents the expected maximum.

        To evaluate the potential reduction in harvest resulting from the closure of Monday to commercial oyster harvest, historical trends of the temporal distribution of harvest effort were examined. A Sunday closure of the fishery was implemented beginning with the 2016-17 season. An additional closure of the fishery on Monday would shorten the length of the fishing season by 25-27 days. Assuming no changes in effort patterns and using historical data as a baseline, closing the fishery on Monday could result in an approximately 15.4 – 19.2% reduction in total harvest (mean = 17.0%).

        However, data analysis also indicates that fishermen are not fully utilizing the available fishing opportunity currently available during the season. For the 2007-08 through the 2015-16 oyster seasons, the number of vessels fishing in April was approximately half of the number that fished in November. The average number of sacks harvested per vessel per day over the last three seasons (2014-15 through 2016-17) was 24.7 sacks, when daily sack limits were 50 (2015 and 2016) and 40 (2017) sacks per day. For the same three seasons the average number of trips per season was 41 trips and 96 days elapsed from first trip to last trip on average for a vessel  (out of a 181-182-day season in 2015 and 2016 and a 155-day season in 2017). Adding Monday to the current Sunday closure will result in a 129-130-day season.

        As a result of these factors, the department concludes that the proposed rules, if adopted, would not require commercial oyster fishermen to expend any additional effort to achieve an equivalent harvest, on average, compared to the current rules. The average number of sacks harvested is currently less than what has been proposed and the average vessel fishes approximately less than 27% of the fishing days allowed in the last three years.  The total number of sacks harvested on average, based on the assumption of the ability to shift fishing effort during the week, shift fishing effort within the first and last day that they have been fishing, as well as to later in the fishing year, should not result in any decrease in harvest assuming the biological production of oysters is similar to recent years.

        Obviously, the overall conclusion above is based on an average harvester and certainly it is recognized that there is a continuum of harvesters, some who harvest less and more than the average number of sacks and some who fish fewer and greater days than the average producer.

        During the 3 years comprising the 2014-15, 2015-16, and 2016-17 seasons, of the 445 vessels that reported at least 1 trip with landings during any of the 3 seasons, 258 (58%) of vessels had a mean catch of 25 sacks or less , 187 (42 %) had a mean catch per day of greater than 25 sacks.  Of those 187 vessels 93 vessels (21%) had a mean catch per day of 30 sacks or greater.

        In order to determine the impacts to those individual vessels who would be impacted based on averaging greater than 25 sacks in the last 3 years, a ratio estimator of their actual mean catch per day to the 25 sack limit was used to determine the number of extra trips required to meet their historical landing pattern.  For the 187 vessels it would take an average increase of 16% in more trips per season to reach the same landings total.  For those 187 vessels, they took an average of 32 trips per season during the 3 season period. Given the 16% increase in trips that would mean they would need to make an additional 5-6 trips.   Assuming that vessel trip/day on average has the same cost per day, it would require 16% greater cost to obtain the same level of harvest.   Given that the season length is still proposed to be 129-130 days in season length the analysis assumes there are enough additional days still available for the trip (fishing pressure) shift to move in the season.

        While described qualitatively above, the impact in price associated with having a higher valued oyster later in the season and the impact of price stability by delaying or smoothing harvest for a longer period of time have not been factored in to this analysis but given the qualitative discussion above, the department assumes that it would lower the extra days required to make up for any loss in overall revenue from the harvest because the vessels would be receiving greater value for the product. When considering the costs associated with harvesting, the department recognizes that there may be increased labor costs associated with the reduction in the percentage of the undersized oysters allowed on board.  This reduction may require more culling time on board the vessel to ensure compliance with the reduction in the undersize tolerance.  The additional amount of time that may be required is considered but cannot be estimated, since it should be only an incremental amount more because culling of small oysters should already be occurring on each vessel.

        The department considered several alternatives to achieve the goals of the proposed new rules while reducing potential adverse impacts on small and micro-businesses and persons required to comply.

        One alternative considered was to remain with the status quo rules. This alternative was rejected because the department believes that the current harvest, especially of undersize oysters, is unsustainable, and to allow that to continue at the current rate would be to fail to fulfill the department’s statutory and regulatory responsibility to protect oyster resources, as well as continue to lead to a declining oyster resource which would impact Texas bays and estuary ecosystems in a negative way and thus would also continue to lead to a declining commercial oyster industry.

        A second alternative was to close the fishery entirely.  This alternative could be implemented and when oyster resources recovered to a point where the department believed they could be reopened and could sustain the fishery at current levels of exploitation, the fishery could be reopened with current or new regulations.  This alternative was rejected because while it would certainly be the quickest route to oyster stock replenishment, it would also cause the public oyster season to be foregone entirely for some number of years.  That number of years would be dependent on weather and bay-by-bay conditions.  Assuming conditions are good, small oysters can grow to maturity and be of legal harvest size in 2-3 years.  This alternative was rejected due to the impact it would have on the commercial oyster industry and the local communities who depend on the commercial oyster businesses. 

        A third alternative considered was to retain the current 15 percent value for the percentage of a catch that could consist of undersize oysters but shorten the existing season and/or further reduce weekly opportunity, daily sack limit, or some combination thereof. This alternative was rejected because a reduction in the harvest of undersize oysters is imperative to stabilizing the fishery and is the quickest and most efficient way to achieve that stabilization. A reduction in legal fishing hours or sack limit beyond what is proposed is undesirable because of the economic impacts to the regulated community.

        (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 result in direct impacts to 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) 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 proposed rules may be submitted to Dr. Tiffany Hopper, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4650; email: tiffany.hopper@tpwd.texas.gov, or via the department website at www.tpwd.texas.gov.

5. Statutory Authority.

        The amendments are proposed under Parks and Wildlife Code, §76.112, and §76.301, which, respectively, authorize the commission to adjust the tolerance for undersize oysters within a cargo of oysters and regulate the taking, possession, purchase and sale of oysters, including prescribing the times, places, conditions, and means and manner of taking oysters.

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

6. Rule Text.

        §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) – (3) (No change.)

                         (4) It is unlawful for any person to take or possess a cargo of oysters more than 5%[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 3/4 inch along any axis shall be counted as an undersized oyster.

                 (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 subparagraphs (A) and (B) of this paragraph cease effect on November 1, 2018.

                                  (A) – (B) (No change.)

                                  (C) Christmas Bay, Brazoria County.

                                  (D) Carancahua Bay, Jackson and Matagorda County.

                                  (E) Keller Bay, Calhoun County.

                                  (F) Powderhorn Lake, Calhoun County.

                                  (G) Hynes Bay, Refugio County.

                                  (H) St. Charles Bay, Aransas County.

                                  (I) South Bay, Cameron County.

                                  (J) Areas along all shorelines extending 300 feet from adjacent public or private upland.

        §58.22. Commercial Fishing.

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

                 (c) Seasons and Times

                         (1) (No change.)

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

                         (3) (No change.)

                 (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) 25[40] sacks of culled oysters of legal size; or

                         (2) (No change)

                 (e) – (f) (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

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