Part 2.
TEXAS PARKS AND WILDLIFE DEPARTMENT
Chapter 58.
OYSTERS AND SHRIMP
Subchapter A. STATEWIDE OYSTER FISHERY PROCLAMATION
31 TAC §58.22, §58.23
The Texas Parks and Wildlife Department proposes amendments
to §58.22, concerning Commercial Fishing, and §58.23, concerning
Non-Commercial (Recreational) Fishing. The amendments are necessary to clarify
the daily bag limit and unit of measurement for oysters.
The amendment to §58.22 would establish a specific volume of oysters
that could be legally possessed or taken in one day for commercial purposes.
The amendment to §58.23 would establish a specific volume of oysters
that could be legally possessed or taken in one day for non-commercial (recreational)
purposes.
Responsibility for adopting rules covering the taking, attempting to take,
possession, purchase, and sale of oyster resources in the salt waters of Texas
is set forth in Parks and Wildlife Code, Chapter 76.
Following extensive discussions with the department's Oyster Advisory Committee,
the department published a proposal in the July 22, 2005, issue of the
The 2004 oyster season was used as an example of a volatile market. Landings
declined during the season from an initial average of 7,973 sacks per day
(November 2003) to an average 2,868 sacks per day by the last month of the
season (April 2004). The corresponding average price per sack in November
2003 was $14.11 per sack and the average of April 2004 was $15.28 per sack.
This indicates the price at the beginning of the season was 7% lower than
the price at the end of the season, without accounting for any quality differences
that may have occurred between the fall and spring seasons. If a fisherman
who could catch 150 sacks per day at the beginning the season maintained this
proportion of the catch throughout the season, only 53 sacks per day would
be caught in the last month. Gross receipts would begin the season at $2,115
per day and drop to $824 per day by the end of the season.
In contrast, the 2003 oyster season was used as an example of a more stable
market. Landings declined slightly during the season from an initial average
of 5,753 sacks per day (November 2002) to an average 3,595 sacks per day by
the last month of the season (April 2003). The corresponding average price
per sack in November 2002 was $14.42 per sack and the average of April 2003
was $14.47 per sack. If a fisherman who could catch 150 sacks of oysters per
day at the beginning the season maintained this proportion of the catch throughout
the season, landings (total sacks) would be approximately 18% higher than
total landings during the 2004 season example above. Gross receipts would
begin the season at $2,163 per day and end the season at $1,356 per day, and
total gross receipts under this scenario would be 19.7% higher than total
gross receipts under the 2004 example above.
The rationale behind the rulemaking was that to receive the benefits of
a stable market in a majority of future seasons, the daily harvest had to
be reduced to a level that would allow the total available oysters in Texas
bays to be reduced at a slower rate through the season than can be routinely
obtained with the higher bag limit. Intuitively, this would suggest a significant
reduction in gross receipts due to the significant reduction in bag. However,
the behavior of the market itself provides benefits to the fisherman. If a
fisherman during the 2003 season (i.e., used as the stable example above)
could catch 90 sacks of oysters per day at the beginning the season and maintain
this average catch rate throughout the season, landings (total sacks) would
be roughly equivalent to the total landings during the 2004 season example
above. However, gross receipts would begin the season at $1,298 per day and
end the season at $1,301 per day, and total gross receipts under this scenario
would be 1.6% higher than total earnings under the 2004 example above. Fishermen
will be impacted by this proposal; however, it is expected that the benefits
to fishermen will off set the negative impacts of a reduced bag on early season
efficiency.
In itself, reducing the amount of oysters taken by an individual boat would
not have accomplished this or any other management goal had not the 79th Legislature
limited the number of boats allowed to fish for oysters. Therefore, the proposed
rulemaking was consistent with the industry's legislative initiative to limit
the number of commercial oyster boat licenses that may be issued for use in
Texas waters.
The proposed amendments are necessary because the department has determined
that the current rule language does not clearly convey the intent of the Parks
and Wildlife Commission's that the 90-sack limit function as a daily bag limit
and not solely as a possession limit. Similarly, the recreational bag limit
also was intended to be a daily bag limit as well as a possession limit. The
proposed amendments are intended to clarify that the daily bag limit for commercial
oystermen is 90 sacks per day of legal sized oysters and the possession limit
for a commercial oysterman while on the water is also 90 sacks. In addition
to the commercial limits, the proposed amendment to §58.23, concerning
Non-commercial (Recreational) Fishing, offers a similar clarification for
recreational oyster fishermen, stipulating a daily bag limit of two sacks
of legal sized oysters. The proposed amendment also alters the unit of measure,
replacing the bushel with the sack.
Robin Riechers, Director of Science and Policy, has determined that for
each of the first five years that the proposed rules are in effect, there
will be no fiscal implications to state or local governments as a result of
enforcing or administering the rules.
Mr. Riechers also has determined that for each of the first five years
the rules as proposed are in effect, the public benefit anticipated as a result
of enforcing or administering the rules as proposed will be more effective
enforcement of rules to protect the oyster resources of the state, a more
stable and viable oyster industry, and rules that are clearer, more concise,
more accurate, and more user friendly. The enhanced price stability throughout
the season and the overall increase in total revenue is expected to outweigh
any reductions in efficiency which may happen early in the season. The rules
as proposed will clarify the enforcement of the sack limit. A greater level
of enforcement is expected with the newly clarified limit.
There will not be an adverse economic effect on small businesses, microbusinesses,
or persons required to comply with the rules as proposed. The department anticipates
that the proposed rules will result in a reduction in harvest in the early
part of the season, which has traditionally been much higher than the later
part of the season. However, by stabilizing harvest, the department anticipates
that the proposed rule will reduce the decline in late season harvest experienced
in recent years, thus offsetting any fiscal impacts experienced in the early
season.
The department has not drafted a local employment impact statement under
Government Code, §2001.022, as the agency has determined that the rules
as proposed will not impact local economies.
The department has determined that Government Code, §2001.0225 (Regulatory
Analysis of Major Environmental Rules), does not apply to the proposed rules.
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.
Comments on the proposal may be submitted to Jerry L. Cooke, Texas Parks
and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512)
389-4492; e-mail: jerry.cooke@tpwd.state.tx.us.
The amendments are proposed under Parks and Wildlife Code, §61.052,
which requires the commission to regulate the means, methods, and places in
which it is lawful to hunt, take, or possess game animals, game birds, or
aquatic animal life in or from the places covered by the chapter, and §76.301,
which authorizes the commission to regulate the taking, possession, purchase,
and sale of oysters.
The proposed amendments affect Parks and Wildlife Code, Chapters 61 and
76.
§58.22.Commercial Fishing.
(a)
It is lawful to take oysters for commercial use by non-mechanical
means.
(b)
Gear Restrictions. During the open public season, it is
unlawful while taking or attempting to take oysters for pay or the purpose
of sale, barter, or exchange or any other commercial purpose to:
(1)
use more than one dredge;
(2)
use a dredge which exceeds 48 inches in width and a two-barrel
capacity;
(3)
have on board more than one dredge, unless spare dredges
are secured, to or on the wheelhouse, or to the deck in such a manner as to
not be readily accessible for use;
(4)
have on board more than one winch chain, cable, or rope
unless spare chains, cables or ropes are secured below deck; or
(5)
have on board more than one lifting block unless spare
blocks are secured below deck.
(c)
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)
[
(2)
[
(d)
Reporting requirements. A dealer who purchases or receives
oysters directly from any person other than a licensed dealer must file a
report with the department each month as prescribed under Parks and Wildlife
Code, §66.019(c).
§58.23.Non-commercial (Recreational) Fishing.
(a)
It is lawful to take oysters for personal use by non-mechanical
means.
(b)
Gear Restrictions. It is unlawful while taking or attempting
to take oysters for personal use to:
(1)
use a dredge that exceeds 14 inches in width; or
(2)
have more than one dredge connected in any manner to a
winch, chain or other lifting device during the open public season; or
(3)
have on board any dredge(s), other than the one connected
to a winch, chain, or other lifting device, unless secured below deck, to
or on the wheelhouse, or to the deck in such a manner as to not be readily
accessible for use.
(c)
Possession Limit. It is unlawful
for a person
to
take
in one day
or possess
,
more than two
sacks
[
(d)
Prohibition of Sale. It is unlawful to sell oysters taken
without a valid commercial oyster fishing license.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on April 10, 2006.
TRD-200602066
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Earliest possible date of adoption: May 21, 2006
For further information, please call: (512) 389-4775
Subchapter A. STATEWIDE HUNTING AND FISHING PROCLAMATION
2.
OPEN SEASONS AND BAG LIMITS--HUNTING PROVISIONS
while taking or attempting to take oysters for pay or the purpose
of sale, barter, or exchange or any other commercial purpose to have on board
any licensed commercial oyster boat
]:
more than
] 90 sacks of culled oysters of legal
size; or
more than
] 6 sacks of unculled oysters while
on the reef.
bushels
] of legal sized oysters [
per person
].
Chapter 65.
WILDLIFE