Presenter: Robin Riechers

Commission Agenda Item No. 3
Action
Statewide Oyster Fishery Proclamation Amendments
January 2002

I. Discussion: 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. Currently the oyster lease program is confined to the Galveston Bay complex with 43 separate leases. The lease program allows for oysters to be removed from polluted areas to non-polluted areas to depurate. This program has been ongoing since 1891 and has 2,327 total acres currently under lease. The dockside value from lease landings each year accounts for about one-third of the entire oyster fishery in Texas and amounts to approximately $3 million dollars annually.

Proposed amendments are initiated at the direction of Senate Bill 305, 77th Legislature, Regular Session. Amendments include edit items for clarification and proposed amendments to provide consistency with Parks and Wildlife Code Chapter 76 as modified in Senate Bill 305. The proposed amendments include:

At the direction of the Regulations Committee, staff filed the proposed rule changes with the Texas Register which were published in the December 14, 2001 issue for 30-day public comment (26 TexReg 10232). One public hearing was conducted in Galveston County on December 19, 2001. Eleven people attended the public hearing. Two individuals stated they were against the $200 lease renewal fee indicating it was their understanding the fee would not apply to current lease holders and would not be implemented until a lease changed hands. Staff disagrees with this comment noting that the renewal fee is mandated by statute. Staff received no other comments specific to the proposed rule changes during the public comment period. Staff recommends no changes to the proposals.

II. Recommendation: Staff recommends the Texas Parks and Wildlife Commission adopt the following motion:

“The Texas Parks and Wildlife Commission adopts amendments to 31 TAC §§58. - and (located in Exhibit A), concerning Statewide Oyster Fishery Proclamation as published in the December 14, 2001 issue of the Texas Register (26 TexReg 10232).”

Attachments – 2

1. Exhibit A –Statewide Oyster Fishery Proclamation
2. Exhibit B - Fiscal Note (Available upon request.)


Commission Agenda Item No. 3
Exhibit A

Oyster Fishery Proclamation

§58.10. Application.

(a) This subchapter applies to the taking, attempting to take, possession, purchase, and sale of oyster resources in the salt waters of Texas. It carries out the Commission's rulemaking authority granted by the legislature in Parks and Wildlife Code, Chapter 76. The law covering the taking, attempting to take, possession, purchase, and sale of oyster resources in the salt waters of Texas is set forth in both Parks and Wildlife Code, Chapter 76 and this subchapter whereby the provisions of this subchapter prevail over any conflicting provision of Parks and Wildlife Code, Chapter 76 to the extent of the conflict as set forth in Parks and Wildlife Code, §76.301.

(b) This subchapter also applies to private oyster leases including the permitting and marking of, as well as transplant of oysters to, and harvest of oysters from private oyster leases.

§58.11. Definitions.

The following words and terms, when used in the subchapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Approved area—A molluscan shellfish growing area determined to be acceptable for harvesting of molluscan shellfish for direct marketing according to the National Shellfish Sanitation Program (NSSP).

(2) Barrel of oysters— As defined in Parks and Wildlife Code, §76.001, a barrel of oysters is equal to three boxes (bushels) of oysters in the shell. The dimensions of a box are ten inches by 20 inches by 13 1/2 inches. In filling a box for measurement the oysters may not be piled more than 2 1/2 inches above the height of the box at the center. Two gallons of shucked oysters without shells equals one barrel of oysters in the shell.

(3) Conditionally approved area—The classification of a shellfish growing area determined by the Texas Department of Health Seafood Safety Division to meet approved area criteria for a predictable period. The period is conditional upon established performance standards specified in a management plan. A conditionally approved area is a restricted area when the area does not meet the approved growing area criteria.

(4) Commission—Refers to the nine member Texas Parks and Wildlife Commission.

(5) Department—Refers to the Texas Parks and Wildlife Department.

(6) Natural oyster bed (reef)— As defined in Parks and Wildlife Code, §76.051, a [A] natural oyster bed exists when at least five barrels of oysters are found within 2,500 square feet of any position on a reef.

(7) Oyster—That species of molluscan shellfish identified as the Eastern oyster, Crassostrea virginica and its subspecies. No other species of molluscan shellfish are included within this proclamation.

(8) Possess—The act of having in possession or control, keeping, detaining, restraining, or holding as owner, or under a fishing ley, or as an agent, bailee, or custodian of another.

(9) Private oyster lease—Those state water bottoms leased from the state for the purpose of producing oysters to individuals or corporations incorporated under the laws of this state.

(10) Prohibited area—The classification of a shellfish growing area determined by the Texas Department of Health Seafood Safety Division to be unacceptable for the transplanting, gathering for depuration, or harvesting of shellfish. The only shellfish removal permitted from a prohibited area is for the purpose of depletion, as defined in the Control of Harvesting Section of Part 1 of the NSSP.

(11) Public oyster bed (reef)—As defined in Parks and Wildlife Code, §76.002, all natural oyster beds (reefs) are public. All oyster beds not designated as private are public.

(12) Restricted area—The classification of a shellfish growing area determined by the Texas Department of Health Seafood Safety Division to be unacceptable for harvesting of shellfish for direct marketing, but which is acceptable for transplanting or gathering for depuration. A restricted area may be closed for transplanting or gathering for depuration when the Seafood Safety Division determines that the area does not meet the restricted area criteria established in the NSSP.

§58.12. Texas Oyster Fishery Management Plan.

(a) The Oyster Fishery Management Plan and the Economic Impact Analysis are adopted by reference.

(b) Copies may be obtained at the Texas Parks and Wildlife Department offices at 4200 Smith School Road, Austin, Texas 78744.

§58.21. Taking or Attempting To Take Oysters from Public Oyster Beds: General Rules.

(a) Seasons and Times.

(1) The open season extends from November 1 of one year through April 30 of the following year.

(2) Legal oystering hours—sunrise to sunset.

(b) Size Limits and Possession of Undersized Oysters.

(1) Size limit—Legal oysters must be three inches or larger as measured along the greatest length of the shell.

(2) Oysters which are between 3/4 inch and three inches in length must be returned to the reef at the time of harvest.

(3) Unculled oysters shall be kept separate from culled oysters.

(4) It is unlawful for any person to take or possess a cargo of oysters more than 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.

(c) Area Closures. There is no open public season for oysters from areas declared to be restricted or prohibited by the Texas Department of Health or areas closed by the Commission.

§58.22. Commercial Fishing.

(a) Gear Restrictions. It is unlawful while taking or attempting to take oysters for pay or for 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 more than one dredge connected in any manner to a winch, chain or other lifting device during the open public season; or

(4) 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.

(b) Possession Limits. 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 have on board any licensed commercial oyster boat:

(1) more than 50 barrels of culled oysters of legal size; or

(2) more than two barrels of unculled oysters while on the reef.

(c) 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) 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.

(b) Possession Limit. It is unlawful to take or possess more than two bushels of legal sized oysters per person.

(c) Prohibition of Sale. It is unlawful to sell oysters taken without a valid commercial oyster fishing license.

§58.24. Penalties.

The penalties for violation of this subchapter are prescribed by Parks and Wildlife Code, Chapter 76.

§58.30. Private Oyster Leases.

(a) General Rules.

(1) [Leases will not be granted on areas determined to be natural oyster beds or that have been publicly fished within eight years of the lease application.

(2)] No lease will be issued for [a lease on]:

(A) a natural oyster bed as prescribed in Parks and Wildlife Code, §76.001;

(B) an area that has been fished within eight years of the lease application as prescribed in Parks and Wildlife Code, §76.003;

(C[B]) a bay shore area within 100 yards of the shore as prescribed in Parks and Wildlife Code, §76.004;

(D[C]) an area subject to an exclusive riparian right as provided under Parks and Wildlife Code, §76.004 and §76.005;

(E [D]) an area already under certification as a private lease; or

(F[E]) an area within 1,000 feet of an established lease not owned or controlled by the applicant.

(2[3]) The term of the lease is 15 years as prescribed in Parks and Wildlife Code, §76.018. [Failure to pay any rental when due terminates the lease.]

(3) In accordance with the Oyster Fishery Management Plan the Department may accept oyster lease applications.

(b) Application For Oyster Lease.

(1) If [All] applications for private oyster leasesare being accepted by the department if, they [will be submitted to the department for consideration and] shall be accompanied by a nonrefundable application fee for $200 [20].

(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 citizenas 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; [and]

(F) riparian rights; and

(G) presence of exposed shell; and

(H) presence of live oysters.

[(5) An authorized employee(s) of the department shall inspect the proposed lease site or sites to determine the presence of exposed shell.

(6) If exposed shell is found within the proposed lease site or sites, an authorized employee(s) of the department shall determine the 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 [Loran]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 [Loran] 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 [Loran] coordinates.

(4) The department shall return approved application for appropriate registration by applicant with the county clerk in the county of location [as prescribed in Parks and Wildlife Code, §76.014].

(5) Rental Fee.

(A) [No rental fee is owed on any lease when oysters are not sold or marketed from the lease for a period of five years after the date of the establishment of the lease.

(B) When oysters are sold or marketed from the lease and thereafter, t] The holder of a[the] certificate of location shall pay to the department $[3]6.00 per acre of location [lease] per year.

(B[C]) Rental fees are due annually by March 1as prescribed in Parks and Wildlife Code, § 76.017.

(C[D]) 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. [Failure to pay any rental when due terminates the lease.]

(D [E]) 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. [If oysters from the lease are not sold or marketed within five years from the date of establishment of the lease, the lease is void.]

(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 polluted oysters; and

(ii) other considerations as specified in the 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 [Loran] coordinates for all lease markers; and

(iii) a new survey will be conducted and provided to the department within one year of the lease renewal;

(E) Failure to meet any conditions of the lease shall result in forfeiture of the lease.

(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) quantity of unculled oysters as prescribed in Parks and Wildlife Code, § 76.031 requested and 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) Transplant permits will not be issued to any leaseholder who has not paid any rental, transfer, sale, renewal or late penalty fees which 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 not 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)Harvest permits will not be issued to any leaseholder who has not paid any rental, transfer, sale, renewal or late penalty fees which are owed to the department.

§58.60. Transplant or Harvest Permit Cancellation.

(a) Violations of the transplanting or harvesting procedures include, but are not limited to, the following:

(1) harvesting oysters from areas or leases other than covered under permit;

(2) harvesting oysters from restricted or prohibited areas as designated by the Texas Department of Health;

(3) transplanting oysters from unauthorized areas or to unauthorized leases;

(4) transplanting oysters without a valid transplanting permit;

(5) harvesting oysters without a valid harvesting permit;

(6) transplanting on or harvesting oysters from a lease which is not properly marked;

(7) failure to adhere to any conditions of the permit;

(8) failure to amend a transplant or harvest permit to include additions or deletions of boats; or

(9) failure to submit weekly transplant reports or monthly harvest reports.

(b) Violations of paragraphs (1) and (2) of subsection (a) of this section, shall result in a one year cancellation and withholding of all permits for the affected leases.

(c) Violations of paragraphs (3), (4), and (5) of subsection (a) of this section, shall result in a 45-day cancellation and withholding of all permits for the affected leases beginning on the next approved harvest or transplant day.

(d) Violations of paragraphs (6), (7), (8), and (9) of subsection (a) of this section, or the other provisions in the permits, shall result in a 5-day cancellation and withholding of all permits for the affected leases beginning on the next approved harvest or transplant day. [of all permits for the affected leases for a period of five working days]

(e) In the event a transplant or harvest permit is canceled, the lease holder may appeal to the executive director within five days, stating, in writing, why the permit should be reinstated.


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