PART 2. TEXAS PARKS AND WILDLIFE DEPARTMENT
CHAPTER 58. OYSTERS AND SHRIMP
SUBCHAPTER B. STATEWIDE SHRIMP FISHERY PROCLAMATION
The Texas Parks and Wildlife Department (the department) proposes an amendment to §58.160, concerning Taking or Attempting To Take Shrimp (Shrimping)--General Rules. The proposed amendment would update the reference to federal regulations governing the dimensions and specifications of approved Bycatch Reduction Devices (BRDs) to accommodate recent changes to the federal rules.
Bycatch reduction devices (BRDs) reduce the mortality of non-target aquatic organisms that occurs during shrimping, especially among juvenile finfish and invertebrate populations. The use of BRDs reduces shrimp-trawl bycatch fishing mortality for recreationally important species such as red snapper, flounder, Atlantic croaker, sand seatrout, and blue crab. The use of BRDs also allows the escapement of other organisms, which enhances the overall viability of the ecosystem and has the potential to increase populations of finfish and invertebrates impacted by trawling.
The state rules requiring shrimp trawls to be equipped with BRDs have been in effect since 2000 and specify that only those BRDs classified by the National Marine Fisheries Service (NMFS) as "approved devices" are lawful for use in waters under state jurisdiction. From time to time NMFS engages in federal rulemaking to designate new or modified BRD types as "approved devices." In a final rule published in the Federal Register on February 13, 2008, NMFS added three new BRD types to the list of BRDs approved for use in the federal waters of the Gulf of Mexico (73 FR 8219). The federal rules took effect March 14, 2008.
The proposed amendment to §58.160 would allow the newly approved BRDs to be used in state as well as federal waters. By creating regulatory consistency between state and federal rules, the department intends to enable shrimp vessels that fish in both federal and state waters to continue to do so without having to switch BRDs. The proposed rules also would permit an increased variety of BRDs that could be lawfully used by shrimp vessels, giving fishermen more options in terms of what type of BRD to use. The rule as proposed also would provide for greater economic efficiency in the fishery and would eliminate potential confusion that could result from differential regulations enforced by state and federal authorities.
As required by Parks and Wildlife Code, §77.077, the department finds that the use of BRDs demonstrably reduces bycatch of fish species by shrimp trawls and that the approval of additional types of BRDs neither jeopardizes bycatch species nor causes hardship for shrimpers.
Mr. Robin Riechers, Director of Science and Policy, Coastal Fisheries Division, has determined that for each of the first five years the rule as proposed is in effect, there will be no fiscal implications to state or local government as a result of enforcing or administering the rule.
Mr. Riechers also has determined that for each of the first five years the rule as proposed is in effect, the public benefit anticipated as a result of enforcing or administering the rule as proposed will be a more sustainable shrimp fishery because increasingly efficient BRDs will reduce the impact of that fishery on other bycatch species.
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. The department has determined that there will be no direct economic effect on small or micro-businesses or persons required to comply as a result of the proposed rule. The rule would not compel or mandate any action on the part of any entity, including small businesses or microbusinesses. Instead, the rule would create additional flexibility for the shrimp fishing industry by allowing three additional BRD designs to be used. Accordingly, the department has not prepared a regulatory flexibility analysis under Government Code, Chapter 2006.
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.
The department has determined that Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rule.
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.
Comments are requested on the proposed rule changes from any interested person. Written comments may be submitted to Mr. Paul Hammerschmidt, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4650, e-mail: paul.hammerschmidt@tpwd.state.tx.us.
The amendment is proposed under Parks and Wildlife Code, §77.007, which authorizes the commission to regulate the catching, possession, purchase, and sale of shrimp, including the times, places, conditions, and means and manner of catching shrimp.
The proposed amendment affects Parks and Wildlife Code, Chapter 77.
§58.160.Taking or Attempting to Take Shrimp (Shrimping)--General Rules.
(a) - (d) (No change.)
(e) Bycatch Reduction Device (BRD) requirements.
(1) (No change.)
(2) Exemptions from the BRD requirement--A shrimp boat is exempt from the BRD requirements of subsection (e)(1) if it:
(A) (No change.)
(B) Is fishing under the provisions of an [a
] individual bait-shrimp trawl tag as established in §58.165
of [,] this title [chapter]
(relating to Non-commercial (Recreational) Shrimping).
(C) (No change.)
(3) (No change.)
(4) Approved BRDs:
(A) In outside waters: Any BRD that meets the dimensions
and specifications of an approved device as described in 50 Code Federal
Regulations (CFR) Part 622 §622.41 on February 13, 2008 [
Part 622 §622.41(h) on May 15, 2005].
(B) In inside waters:
(i) Any BRD (other than an extended funnel devices
similar to "Jones/Davis" and "large mesh" devices) that meets the
dimensions and specifications of an approved device as described in
50 Code Federal Regulations (CFR) Part 622 §622.41 on February
13, 2008 [Part 622 §622.41(h) on May 15, 2005]; or
(ii) - (iii) (No change.)
(f) - (g) (No change.)
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 July 1, 2008.
TRD-200803423
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Earliest possible date of adoption: August 17, 2008
For further information, please call: (512) 389-4775