31 TAC §§58.11, 58.30, 58.40, 58.50, 58.60
The Texas Parks and Wildlife Commission adopts amendments
to §§58.11, 58.30, 58.40, 58.50, and 58.60, concerning the Statewide
Oyster Fishery Proclamation. Sections 58.30, 58.40, and 58.50 are adopted
with changes to the proposed text as published in the December 14, 2001, issue
of the
Texas Register
(26 TexReg 10232). Sections
58.11 and 58.60 are adopted without change and will not be republished.
The change to §58.30, concerning, Private Oyster Leases, restores
the word 'and' to subsection (d)(1)(A). The proposed text inadvertently indicated
the word was to be stricken; however, the intent of the regulation is to require
the applicant to satisfy the conditions established in both subparagraphs.
The change also nonsubstantively alters subsection (d)(6)(A)(i) to be consistent
with language throughout the chapter. The change modifies the reference to
"polluted oysters" by changing it to "oysters from a non-approved area". The
change also alters (d)(6)(D) to insert the word 'and' between clauses (i)
and (ii), which was inadvertently shown to be stricken in the proposed text,
and redesignates clause (iii) as new subparagraph (E) for clarity's sake.
The change to §58.40, concerning Oyster Transplant Permits, makes
a nonsubstantive grammatical change to subsection (b)(1)(D) and (8) to improve
clarity.
The change to §58.50, concerning Oyster Harvest Permits, makes a nonsubstantive
grammatical change to subsection (e) to improve clarity.
The amendments provide consistency with modifications made to Parks and
Wildlife Code, Chapter 76, by Senate Bill 305 enacted by the 77th Legislature.
The Legislature granted management authority over oysters to the Texas Parks
and Wildlife Commission (TPW) in 1985 contingent upon development of a oyster
management plan. Adopted in 1988, the Texas Oyster Fishery Management Plan
(FMP) resulted in Commission authority over regulation of traditional management
measures, including means, methods, times, places, quantity, and size of harvest.
The proposed amendments are initiated at the direction of Senate Bill 305,
77th Legislature, Regular Session. These amendments directly affect the administration
and management of the oyster lease program.
Terms and conditions as prescribed by Legislation or incorporated into
the lease program to protect the interests of the State and create public
benefits by raising lease fees and providing guidelines to better manage the
renewal, transfer, and auction of leases. The re-surveying of leases using
the most current technology protects the leaseholder and the public by ensuring
that the appropriate acreage is being maintained and used by the leaseholder.
The rules provide leaseholders with a 15-year lease as provided by legislation.
This allows individuals to maintain their lease and to using best management
practices regarding inputs (cultch material) and transfer and harvest of oysters
from the lease through time. The leaseholder will be able to better manage
their business with a longer-range planning horizon. The first right to refuse
renewal of the lease also adds to the certainty in business planning for the
leaseholder.
The amendments function by: setting the term of the lease at 15 years (§58.30(a)(2));
increasing the rental fee changes from $3.00 to $6.00 per acre and a late
penalty fee of 10% of the amount owed is charged if payment occurs after the
due date (§58.30 (d)(5)(A) and (d)(5)(B)); providing for termination
of the lease if payment is not received within 90 days of the due date (§58.30
(d)(5)(D)); establishing the terms for lease renewal, lease transfer, and
lease auction if a lease is not renewed (§58.30(d)(6-8)); establishing
a lease application (§58.30(b)(1), lease renewal (§58.30(d)(6)(C)),
and lease transfer fee (§58.30(d)(8)(B) of $200; establish a condition
that, for renewal in March 1, 2002, an updated survey of the current lease
be included (§58.30(d)(6)(D)); providing that a lease auction will only
occur if a lease is not renewed (§58.30(d)(7)(A); and allowing the Department
to set a minimum acceptable bid price based on previous auctions, open market
prices and other relevant factors (§58.30(d)(7)(B).
Comments made by the public concerning the proposed rules were presented
to the Texas Parks and Wildlife Commission. On December 19, 2001, a public
hearing was held in Galveston County. Eleven people attended the public hearing
and six people offered comment. On January 17th, 2002, the commission held
a public hearing in Austin to receive additional public comments on the proposed
regulations.
Three individuals made comments directly related to the regulation proposals.
The comments concerned when the $200 renewal fee was to be effective. Two
commenters indicated that they were under the impression that the $200 renewal
fee would not be charged at the beginning of the new lease period on March
1, 2002, but would take effect at the end of the first 15 year lease period.
One commenter thought that the lease renewal fee only was applied to lease
transfers.
Texas Parks and Wildlife disagrees with all the comments regarding the
timing and implementation of the lease renewal fee. The legislation provided
for the lease renewal fee and it became effective September 1, 2001 and provided
for no exceptions. Thus, since the renewal time of March 1, 2002 falls after
the September effective date, the Department is required to collect the $200
fee upon renewal.
The amendments are adopted under Parks and Wildlife Code, Chapter
61, Uniform Wildlife Regulatory Act (Wildlife Conservation Act of 1983), which
authorizes the commission to establish wildlife resource regulations for this
state; and Chapter 76, which authorizes the commission to establish limitations
on the take, possession, purchase, and sale of oyster resources, including
the permitting, marking, renewal, transfer, and sale of these private oyster
leases.
§58.30.Private Oyster Leases.
(a)
General Rules.
(1)
No lease will be issued for:
(A)
a natural oyster bed as prescribed in Parks and Wildlife
Code, §76.001;
(B)
an area that has been fished as a public reef within eight
years of the lease application as prescribed in Parks and Wildlife Code, §76.003;
(C)
a bay shore area within 100 yards of the shore as prescribed
in Parks and Wildlife Code, §76.004;
(D)
an area subject to an exclusive riparian right as provided
under Parks and Wildlife Code, §76.004 and §76.005;
(E)
an area already under certification as a private lease;
or
(F)
an area within 1,000 feet of an established lease not owned
or controlled by the applicant.
(2)
The term of the lease is 15 years as prescribed in Parks
and Wildlife Code, §76.018.
(3)
In accordance with the Oyster Fishery Management Plan the
Department may accept oyster lease applications.
(b)
Application For Oyster Lease.
(1)
If applications for private oyster leases are being accepted
by the department, they shall be accompanied by a nonrefundable application
fee of $200.
(2)
The applicant shall mark the proposed lease site or sites
with temporary poles and/or buoys in such a manner that the outline of the
site or sites can be clearly determined.
(3)
Each application shall contain:
(A)
applicant's name and address;
(B)
affirmation that applicant is a United States citizen as
prescribed in Parks and Wildlife Code, §76.006;
(C)
a description of the lease, including a plat showing approximate
size and location in relation to state land tracts; and
(D)
signed letters each from the U.S. Army Corps of Engineers,
General Land Office, and the Seafood Safety Division of the Texas Department
of Health indicating approval for the proposed lease site.
(4)
An authorized employee(s) of the department shall inspect
the proposed lease site or sites to determine its location with respect to:
(A)
natural oyster reefs;
(B)
shoreline;
(C)
areas restricted or prohibited by the Texas Department
of Health;
(D)
spoil disposal areas;
(E)
other private leases;
(F)
riparian rights;
(G)
presence of exposed shell; and
(H)
presence of live oysters.
(c)
Public Hearing on Application.
(1)
After having determined the proposed lease site meets location
and exposed shell requirements, the department shall:
(A)
hold a public hearing to determine if the site has been
publicly fished within eight years of the lease application;
(B)
publish a notification of the date, time, and purpose of
the public hearing at least once in a newspaper of general circulation in
the county in which the proposed lease site is located;
(C)
publish the notification between ten and 20 days prior
to the public hearing;
(D)
make available to the public information about the proposed
lease site ten days prior to the date of the hearing; and
(E)
present the investigation report at the public hearing.
(2)
Persons objecting to the proposed lease must submit a sworn
affidavit or testify under oath at the public hearing stating reasons for
the objection.
(3)
The department shall review findings of the public hearing
and submit recommendations to the Coastal Fisheries Division Director for
approval.
(4)
The applicant will be notified within ten days after the
hearing of either approval or denial of lease application.
(5)
The application approved by the department will be forwarded
to the Coastal Coordination Council for final approval.
(d)
Approved Lease Procedures for Applicant.
(1)
Applicant shall be responsible for having a final survey
of the approved lease conducted by a registered surveyor who will furnish
the department with survey notes and a plat of the lease showing:
(A)
the location of the lease in relation to state land tract
boundaries; and
(B)
latitude and longitude coordinates for all lease markers.
(2)
The applicant shall mark the boundaries of the lease with
buoys at the time of the final survey and maintain buoys until lease termination.
Supplemental markers may be required along the lease boundaries if one corner
marker is not clearly visible from another corner marker.
(A)
All marker buoys must be:
(i)
at least six inches in diameter;
(ii)
at least three feet out of the water at mean high tide;
(iii)
of a shape and color that is visible for at least 1/2
mile under normal weather conditions;
(iv)
marked with the lease number (Buoys common to two or more
leases must be marked with all lease numbers);
(v)
marked with at least two-inch high letters in plain Arabic
block letters in a location where it will not be obscured by water or marine
growth; and
(vi)
marked with all required U.S. Coast Guard markings.
(B)
Buoys must be anchored by:
(i)
A screw anchor with a minimum one-inch galvanized sucker
rod and 12-inch head inserted ten feet into the bottom; or
(ii)
two anchors per buoy and each anchor having a minimum
weight of 300 pounds.
(C)
If replacement of buoys is necessary, original latitude
and longitude coordinates of the final survey must be used to relocate markers.
(3)
An authorized employee(s) of the department shall inspect
and verify latitude and longitude coordinates.
(4)
The department shall return approved application for appropriate
registration by applicant with the county clerk in the county of location.
(5)
Rental Fee.
(A)
The holder of a certificate of location shall pay to the
department $6.00 per acre of location per year.
(B)
Rental fees are due annually by March 1 as prescribed in
Parks and Wildlife Code, §76.017.
(C)
The holder of a certificate shall pay the department a
late penalty fee equal to 10 percent of the amount due for any rental, transfer,
sale, or renewal fee that is not paid when due as prescribed in Parks and
Wildlife Code, §76.017.
(D)
Failure to pay any rental, transfer, sale, renewal, or
late penalty fee within 90 days of the due date terminates the lease as prescribed
in Parks and Wildlife Code, §76.017.
(6)
Lease Renewal.
(A)
As prescribed in Parks and Wildlife Code, §76.018,
at the end of a lease term the department shall determine the need for continuation
of the lease based on:
(i)
the need for depuration of oysters from non-approved areas;
and
(ii)
other considerations as specified in §58.12 of this
title (relating to Oyster Fishery Management Plan).
(B)
If the lease is to be renewed under the conditions of the
department as prescribed in Parks and Wildlife Code, §76.018, the lease-holder
of record shall be offered the first right of refusal for renewal as prescribed
in Parks and Wildlife Code, §76.018.
(C)
A payment of $200 will be due upon renewal of the lease
as prescribed in Parks and Wildlife Code, §76.018.
(D)
The holder of a renewed certificate of location shall be
responsible for having the lease resurveyed by a registered surveyor who will
provide the department with survey notes and a plat of the lease showing:
(i)
the location of the lease in relation to state land tract
boundaries; and
(ii)
latitude and longitude coordinates for all lease markers.
(E)
The survey will be conducted and provided to the department
within one year of the lease renewal;
(7)
Lease Auction Procedures
(A)
The department may auction a lease that is not renewed
as prescribed by Parks and Wildlife Code, §76.018.
(B)
The department may determine a minimum acceptable bid based
on:
(i)
bid offers from previous auctions;
(ii)
established open market prices; and
(iii)
other relevant factors.
(C)
The department may refuse all bids below the minimum acceptable
bid.
(D)
The department must follow prescribed bid guidelines for
state agencies.
(8)
Lease Transfers or Sale as prescribed in Parks and Wildlife
Code, §76.019.
(A)
A transfer or sale of a lease does not change the terms
of a lease.
(B)
A payment of $200 will be due upon transfer or sale of
a lease.
(C)
A transfer fee will not be required when a lease is inherited.
(D)
A completed transfer form prescribed by the department
will be required at time of transfer.
§58.40.Oyster Transplant Permits.
(a)
Oysters for transplanting to a private oyster lease may
be taken only under a permit issued by the department.
(b)
Oyster Transplant Application.
(1)
The application for a transplant permit must include the
following information:
(A)
oyster lease number;
(B)
name and address of the lease holder and/or that of his
designated agent;
(C)
name, if documented, and/or registration number of all
boats to be used in transplanting operations;
(D)
as prescribed in Parks and Wildlife Code, § 76.031,
the quantity of unculled oysters requested, and a description of areas from
which the oysters are requested to be taken;
(E)
a description of the type, number, and location of lease
markers; and
(F)
beginning and ending dates of transplant operations.
(2)
Written applications for transplant permits must be received
by the department ten days prior to the beginning of transplanting operations.
(3)
Written applications for transplant permit amendments must
be received by the department at least five days prior to the desired effective
date of the amendment.
(4)
No more than four transplant permits for a lease will be
issued during a one month period.
(5)
No transplant permit will be issued for an oyster lease
while a harvest permit for the same lease is in effect.
(6)
Transplant permits will be issued upon monthly verification
and approval of lease markers by the department.
(7)
A valid transplant permit must be on the vessel during
any transplanting activities.
(8)
A transplant permit will not be issued to any leaseholder
who has not paid any rental, transfer, sale, renewal or late penalty fees
that are owed to the department.
(c)
Oyster Transplant Season and Times.
(1)
The department shall establish the oyster transplant season
giving consideration to information furnished to the department by leaseholders.
(2)
All transplanting operations shall begin after sunrise
and shall be completed before sunset each day.
(3)
No transplanting will be permitted on Saturdays, Sundays,
major holidays, or on the same days that harvest operations are permitted.
(d)
Transplant Restrictions.
(1)
Transplanting of oysters is subject to the conditions and
provisions described in the permit issued by the department.
(2)
Oysters taken for the purposes of transplanting to a private
oyster lease may be taken only from areas designated by the department as
prescribed in Parks and Wildlife Code, § 76.033.
(3)
Oysters may not normally be taken for the purpose of transplanting
from the following areas:
(A)
public oyster reefs in areas approved for oyster harvest
and which have been subjected to any degree of oyster fishing in recent years;
(B)
near-shore reefs around public or private fishing piers
where a conflict of interest has arisen or might arise;
(C)
reefs or areas in which the incidence of diseases, parasites,
and/or predators have been judged potentially dangerous to the public reef
fishery if the oysters are transplanted to other areas; or
(D)
areas declared to be unsuitable for transplanting by the
Texas Department of Health because of the presence of persistent chemicals
or diseases that might be dangerous to public health.
(4)
All oysters obtained under a transplant permit must be
deposited upon the lease identified in the permit.
(5)
The cargo of oysters transplanted will consist of unculled
oysters and shell, unless specified otherwise.
(6)
The permit may require oysters to be culled on the reef
from which they are taken if the department determines that the reef area
may be protected or improved by such action.
(7)
The permit holder may cull the cargo of oysters on his
oyster lease.
(8)
Oysters may be transplanted only to a private oyster lease
which is properly marked at all corners.
(9)
No oysters may be transplanted to a lease adjacent to or
adjoining a lease approved for harvest.
(e)
Reporting Requirement. Weekly transplant reports must be
prepared by the permittee at the end of each week and supplied to the department.
§58.50.Oyster Harvest Permits.
(a)
Oysters may be harvested from a private lease only under
a permit issued by the department.
(b)
Oyster Harvest Application.
(1)
Written application for a harvest permit must be received
five days prior to the requested harvest dates and include the following:
(A)
the oyster lease number;
(B)
the name of the lease holder and/or that of his designated
agent;
(C)
the name and/or registration number of all boats to be
used in harvesting operations; and
(D)
beginning and ending dates for the permit.
(2)
No more than four harvest permits for a lease will be issued
during a one month period.
(3)
A harvest permit will not be valid until 15 days after
expiration of a transplant permit for the same lease or leases adjacent thereto
and with approval of the Texas Department of Health.
(4)
Harvest permits will be issued upon monthly verification
and approval of lease markers by the department.
(5)
A valid harvest permit must be on the vessel during any
harvesting activities.
(c)
Harvest of oysters from a private lease is subject to conditions
as provided in the department issued permit.
(d)
Reporting Requirement. Monthly harvest report forms must
be prepared by the permittee at the end of each month and supplied to the
department.
(e)
A harvest permit will not be issued to any leaseholder
who has not paid any rental, transfer, sale, renewal or late penalty fees
that are owed to the department.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on February 8, 2002.
TRD-200200844
Gene McCarty
Chief of Staff
Texas Parks and Wildlife Department
Effective date: February 28, 2002
Proposal publication date: December 14, 2001
For further information, please call: (512) 389-4775