Presenter: Robin Riechers

Commission Agenda Item No. 10
Action
Proposed 2005–2006 Oyster Fishery Proclamation
August 2005

I. Executive Summary: Currently Texas Parks and Wildlife Code, Section 76.001 defines terms for measuring oyster take by using a box measurement. This definition discusses the measurements in terms of barrels and boxes of oysters. While this works adequately in terms of actual measurements it is not the language used within the fishery, and thus can lead to confusion and difficulties in certain aspects of enforcing the current regulations. The first part of this action defines the term "sack," which is commonly used by fishermen, so that it will have a legal context within the statutory units, and so that it will be standardized as a measurement. This definition will promote efficiency within fishery by making limits more understandable and allow for more effective enforcement. The second part of this action reduces the commercial daily bag limit to preserve and stabilize the economic value of oysters taken during the open season. However, this change will only accomplish this management goal because the number of boats within the fishery cannot increase.

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), §58.11 Definitions and §58.22 Commercial Fishing.

Currently, PWC §76.001 defines a "barrel" and "box" for the purposes of measuring take in the oyster fishery. However, neither of these terms reflect the way oysters are packaged on vessels or purchased at the dock. The purpose of defining a "sack" for measuring take is to place statutory volumes in a context understandable to fishermen by using their own terminology and standardizing it as a measurement. This action is intended to make it easier for fishermen to comply with limits and for Game Wardens to enforce them. This also makes the definition consistent with the one used in the Health and Safety Code, § 436.103.(b), as it relates to the "sack" tax currently collected in the oyster industry.

Following extensive discussions with our Oyster Advisory Committee, staff proposes to reduce the daily limit of oysters from 50 barrels (150 sacks) of culled oysters to 90 sacks and convert 2 barrels of unculled oysters in possession to 6 sacks to reflect the changed units. The purpose of this action is to promote efficiency in utilizing oyster resources by providing a more stable price structure for oysters taken through out the duration of the open season. This proposal will lengthen the productive part (in terms of sacks per vessel landed) of the season and maintain a higher average price throughout the season. This should create overall economic benefits for the industry. However, reducing the amount of oysters taken by an individual boat will not accomplish this management goal if the fishery responds by simply increasing the number of boats taking oysters. Therefore, this action is proposed in concert with recent legislation that limits the number of Commercial Oyster Boat Licenses that may be issued in Texas waters.

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

"The Texas Parks and Wildlife Commission adopts the 2005-2006 Oyster Fishery Proclamation (located at Exhibit A) as published in the July 22, 2005, issue of the Texas Register (30 TexReg 4195-4196)."

Attachments – 1

  1. Exhibit A – Oyster Fishery Proclamation

Commission Agenda Item No. 10
Exhibit A

Chapter 58. Oysters and Shrimp

Subchapter A. Statewide Oyster Fishery Proclamation

31 TAC §58.11, §58.22

The Texas Parks and Wildlife Department proposes amendments to §58.11, concerning Definitions, and §58.22, concerning Commercial Fishing.

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. Currently, Parks and Wildlife Code, §76.001, defines a "barrel" and "box" for the purposes of measuring take in the oyster fishery; however, neither of these terms reflect the way oysters are packaged on vessels or purchased at the dock. The proposed amendment to §58.11 would add a definition for the term ‘sack.’ The purpose of defining a sack as a measure of take is to place statutory volumes in a context understandable to fishermen in the terminology of the trade. The proposed amendment creates a standardized measurement (110 pounds of oysters, including the sack, equals the volume of one box as defined by statute). The proposed amendment is intended to make it easier for fishermen to comply with limits and easier for game wardens to enforce them. The proposed amendment also makes the definition consistent with that used in the Health and Safety Code, §436.103(b), as it relates to the "sack" tax currently collected in the oyster industry.

The amendment to §58.22 replaces the term ‘barrel’ with the term ‘sack’ throughout the section.

Following extensive discussions with the department’s Oyster Advisory Committee, the department proposes to reduce the daily limit of oysters from 50 barrels (150 sacks) of culled oysters to 90 sacks and to convert 2 barrels of unculled oysters in possession to 6 sacks to reflect the changed units. The purpose of this action is to promote efficiency in utilizing oyster resources by providing a more stable price structure for oysters taken throughout the duration of the open season. The proposed rulemaking, if adopted, is expected to lengthen the productive part (in terms of sacks per vessel landed) of the season. If landings are more stable, a more stable average price throughout the season could be expected, which should create overall economic benefits for the industry. An argument could be made that catching more sacks per trip will increase efficiency and create more catch per unit of effort leading to greater net profits. If price did not decline during these early harvest peaks that might in fact be the case; however, dealers have indicated that prices decline due to the high harvest levels at the beginning of the season.

The 2004 oyster season would be a good 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 occur between the fall and spring season for oysters. 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 fifty-three 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 would be 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 proposed rulemaking is made under the assumption that to receive the benefits of a stable market in a majority of future seasons, the fisherman’s daily harvest must be reduced from the current level of 150 sacks per day to the proposed bag limit of 90 sacks of oysters per day so that the total available oysters in Texas bays would 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 it self 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 offset the negative impacts of a reduced bag on early season efficiency.

Reducing the amount of oysters taken by an individual boat alone would not 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 is consistent with the industry’s recommendations to limit the number of commercial oyster boat licenses that may be issued for use in Texas waters.

Robin Riechers, Director of Science and Policy, has determined that for each of the first five years the rules as proposed are in effect, there will be positive implications to state government and no fiscal implications to local governments as a result of administering or enforcing the proposed rules. The rules as proposed will simplify the enforcement of the sack limit and create a standard "sack weight" equivalent to the "sack weight" used in the Health and Safety Code. A greater level of enforcement is expected with the new definition of a sack.

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.

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, §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.

§58.11.Definitions.

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

(1) - (12) (No change.)

(13) Sack of oysters—A volume of oysters equivalent to a box that weighs no more than 110 pounds including the sack.

§58.22Commercial Fishing.

(a) - (b) (No change.)

(c) 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 90 sacks[ 50 barrels ] of culled oysters of legal size; or

(2) more than 6 sacks [ two barrels ] of unculled oysters while on the reef.

(d) (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 11, 2005.

TRD-200502810

Gene McCarty

Chief of Staff

Texas Parks and Wildlife Department

Earliest possible date of adoption: August 21, 2005

For further information, please call: (512) 389-4775


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