Presenter: Robin Riechers

Commission Agenda Item No. 8
Action
2004-2005 Oyster Fishery Proclamation
April 2004

I. Executive Summary: The Oyster Lease Fishery consists of transporting oysters from reefs found in restricted waters (i.e., designated by Texas Department of Health) and placing them on private leases in approved waters long enough that they may again be harvested/marketed for consumption. Aside from conserving a state resource, making oysters available that otherwise could not be used, and minimizing poaching, this program allows the fresh oyster market to extend over most of the year. Also, it is not clear that commercial and recreational fishermen taking oysters for personal use may do so using non-mechanical means.

This item adopts changes to the Oyster Lease Fishery rules that resulted from a systematic review of 31 TAC Chapter 58 and reflect changes in the needs of the fishery.

II. Discussion: 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 Oysters. This item proposes amendments to 31 TAC Chapter 58, Subchapter A (Statewide Oyster Fishery), Section 58.40 Oyster Transplant Permits; Section 58.50 Oyster Harvest Permits; Section 58.60 Transplant and Harvest Permit Cancellation; §58.22 Commercial Fishing; and §58.23 Non-Commercial (Recreational) Fishing.

Currently it is unlawful to transplant oysters from restricted waters to a private lease or subsequently harvest oysters from a private lease unless the appropriate permits have been issued, and the boundaries of that lease are clearly marked. Administrative lead-time that historically was needed between application for and issuance of permits has been significantly reduced through the use of word processors. Also, the number of boats currently allowed in restricted waters for oyster transplanting has been determined traditionally through an informal consent arrangement. The informality was possible because very few were in this portion of the fishery, but recently equitable access to the resource has become an issue.

Difficulties of enforcing the current boat allocation and the cost to the department of boundary inspection prior to permit issuance, as well as other administrative issues, were discussed at a recent Oyster Advisory Committee Meeting and this proposal reflects that discussion. In order to maintain a reasonable and equitable allocation of transplant boats between leases, an amendment is proposed that provides that the department designate the total number of boats that may be used for transplanting and then equitably allocate those boats among leases. However, boat allocations may be voluntarily transferred between leases as long as those transfers are completed before transplanting permits are issued for those leases. Application lead-time is proposed to be reduced and the due date of transplant/harvest reports is clarified. The department’s requirement of inspecting lease boundary markers monthly is proposed to be removed because boundary marking is required by statute and failing to mark lease boundaries is a violation by rule. Game wardens would still be free to inspect those markers, but inspecting all lease boundaries prior to issuing harvest and transplant permits will not be required. And finally, enforcement of permit conditions would be enhanced if the permit were available for inspection on the vessel during all permitted activities. The proposal would create that requirement and provide for a five-calendar day cancellation of a permit for violating this provision.

Also, it is not clear that commercial and recreational fishermen taking oysters for personal use may do so using non-mechanical means. The proposal clarifies that issue by specifically allowing take by non-mechanical means.

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

"The Texas Parks and Wildlife Commission adopts amendments to 31 TAC Chapter 58, Subchapter A (Statewide Oyster Fishery), §58.22 Commercial Fishing; §58.23 Non-Commercial (Recreational) Fishing, § 58.40 Oyster Transplant Permits; §58.50 Oyster Harvest Permits; and §58.60 Transplant and Harvest Permit Cancellation; with changes to the proposed text as published in the March 5, 2004, issue of the Texas Register (29 TexReg 2235-2238)."

Attachments - 2

  1. Exhibit A - Oyster Fishery Proclamation
  2. Exhibit B - Fiscal Note

Commission Agenda Item No. 8
Exhibit A

Public Lands Proclamation
Proposal Preamble

1. Introduction.

The Texas Parks and Wildlife Department proposes amendments to 31 TAC Chapter 58, Subchapter A (Statewide Oyster Fishery), Section 58.40 Oyster Transplant Permits; Section 58.50 Oyster Harvest Permits; Section 58.60 Transplant and Harvest Permit Cancellation; §58.22 Commercial Fishing; and §58.23 Non-Commercial (Recreational) Fishing.

Currently it is unlawful to transplant oysters from restricted waters to a private lease or subsequently harvest oysters from a private lease unless the appropriate permits have been issued, and the boundaries of that lease are clearly marked. Difficulties of enforcing the current boat allocation and the cost to the Department of boundary inspection prior to permit issuance, as well as other administrative issues, were discussed at a recent Oyster Advisory Committee Meeting and this proposal reflects that discussion. The proposed amendments that affect the private lease component of the oyster fishery can be summarized as: a) reducing the time for processing of applications, b) clarifying reporting requirements; c) clarifying that the number of vessels are part of a transplant permit, and d) clarifying that permitted vessels must have a permit on board the vessel when operating. The other proposed amendments allow for both the recreational and commercial harvest of oysters by hand.

The administrative lead time that historically was needed between application for and issuance of permits has been significantly reduced through the use of word processors. In addition, the proposal to remove the department’s requirement to inspect each lease boundary marker monthly allows for more streamlined processing of applications.

Also, the number of boats currently allowed in restricted waters for oyster transplanting has been determined traditionally through an informal consent arrangement. The informality was possible because very few were in this portion of the fishery, but recently equitable access to the resource has become an issue.

In order to maintain a reasonable and equitable allocation of transplant boats between leases, an amendment is proposed that provides that the department designate the total number of boats that may be used for transplanting and then equitably allocate those boats among leases. However, boat allocations may be voluntarily transferred between leases as long as those transfers are completed before transplanting permits are issued for those leases. In addition to the reduction in the time required to process an application the due date of transplant/harvest reports is clarified. The department’s requirement of inspecting lease boundary markers monthly is proposed to be removed because boundary marking is required by statute and as part of the lease and failing to mark lease boundaries is a violation by rule. Game Wardens would still be free to inspect those markers, but inspecting all lease boundaries prior to issuing harvest and transplant permits will not be required. And finally, enforcement of permit conditions would be enhanced if the permit were available for inspection on the vessel during all permitted activities. The proposal would create that requirement and provide for a 5 calendar day cancellation of a permit for violating this provision.

Also, it is not clear that fishermen taking oysters for commercial or personal use may do so using non-mechanical means. The proposal clarifies that issue by specifically allowing take by non-mechanical means.

2. Fiscal Note.

Robert Macdonald, regulations coordinator, 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 governments as a result of enforcing or administering the rule.

3. Public Benefit/Cost Note.

Mr. Macdonald also has determined that for each of the first five years the rule as proposed is in effect:

(A) The public benefit anticipated as a result of enforcing or administering the rule as proposed will be the continued ability of the department to discharge its statutory duty to protect and manage the coastal fisheries resources of the state.

(B) The rule will not result in economic costs to businesses, microbusinesses, or persons required to comply with the rule.

(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 rule as proposed will not impact local economies.

(D) 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.

4. Request for Public Comment.

Comments on the proposed rules may be submitted to Robin Riechers, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas, 78744; (512) 389-4645 (e-mail: robin.riechers@tpwd.state.tx.us).

5. Statutory Authority.

The amendment and new sections 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. 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 Oysters.

The amendment affects Parks and Wildlife Code, Chapter 61 and 76.

§58.22 Commercial Fishing

(a) It is lawful to take oysters for personal use by non-mechanical means.

(ab) 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.

(bc) 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.

(cd) 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.

(ab) 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.

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

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

§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; and

(E) a description of the type, number, and location of lease markers; and

(F)(E) beginning and ending dates of transplant operations.

(2) Written applications for transplant permits must be received by the department ten two days prior to the beginning of transplanting operations.

(3) Written applications for transplant permit amendments must be received by the department at least five two 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)(6) A valid transplant permit must be on the vessel during any transplanting activities.

(8)(7) 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.

(8) The number of boats that may be allocated to a lease for transplanting oysters shall be based on:

(A) the total number of boats that the department determines may be used to transport oysters during that specific season, and

(B) the total number of active leases during that season.

(9) Boat allocations may be transferred between leases so long as those transfers occur before Private Oyster Transplant Permits are issued for those specific leases and must be identified and included on the transplant permit request.

(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 and submitted at the end of each week and supplied to the department each Monday following the week of transplant.

§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 two 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)(4) 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 by the 15th of the month following the month in which harvest occurred.

(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.

§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.

(10) failure to have a valid permit on the vessel during authorized activities.

(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-calendar-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), and (10) of subsection (a) of this section, or the other provisions in the permits, shall result in a 5-calendar-day cancellation and withholding of all permits for the affected leases beginning on the next approved harvest or transplant day.

(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.


Top of Page
Back to Top
Back to Top