Presenter: Jerry Cooke

Commission Agenda Item No. 16
Action
Chapter 58 Oysters and Shrimp
– Proposed Rules and Rule Review
November 2005

I. Executive Summary: Section 2001.039 of the Texas Government Code requires state agencies to review each rule under its jurisdiction at least once every four years. An agency review of a rule must include an assessment of whether the reasons for initially adopting the rule continue to exist. Additionally, because this chapter deals with resource issues, staff reviewed each rule to determine if the effectiveness and enforceability had changed because of changes in the conditions that originally prompted the regulatory action. Notice of proposed review of 31 TAC Chapter 58-Oysters and Shrimp was published in the Texas Register on July 22, 2005 (30 Tex.Reg. 4229). Following review of this chapter, TPWD staff recommends several changes to ensure clarity and accuracy of the regulations and to eliminate unnecessary regulations which were published in the Texas Register on September 30, 2005 (30Tex.Reg. 6242). This action completes the review of Chapter 58.

II. Discussion: Following is a summary of the changes to Chapter 58:

Chapter 58, Shrimp and Oysters

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

"The Texas Parks and Wildlife Commission adopts Chapter 58, Oysters and Shrimp (located at Exhibit A) as published in the September 30, 2005, issue of the Texas Register (30 TexReg 6242-6250). The Texas Parks and Wildlife Commission adopts the review of Chapter 58."

Attachments - 1

  1. Exhibit A - Chapter 58, Oysters and Shrimp

Commission Agenda Item No. 16
Exhibit A

Chapter 58. Oysters and Shrimp

The Texas Parks and Wildlife Department proposes amendments to §§58.102, 58.150, and 58.160, concerning the Statewide Shrimp Fishery Proclamation; §§58.203, 58.205, 58.206, 58.208, and 58.209, concerning Statewide Crab Fishery Proclamation; and §58.302, concerning the Finfish Fishery Proclamation. The amendments are necessary as a result of the department’s review process under the provisions of Government Code, §2001.039, which requires each state agency to perform a review of all regulations not less than every four years and to either readopt, amend, or repeal each rule as necessary and appropriate. As a result of the review, the department has determined that rulemaking is necessary to remove unnecessary language which is redundant to language in federal regulations, clarify language and terminology, and correct outdated reference dates.

The proposed amendment to §58.102, concerning Definitions, amends the definition of Turtle Excluder Device (TED) to adopt through referencing the citation of the Federal Regulation which describes the approved TED devices. The proposed amendment to §58.150, concerning Sale, Purchase, and Handling of Shrimp—General Rules, clarifies that unless a commercial shrimp boat license holder sells his catch to a licensed person required to report the sale to the department, the commercial shrimp boat license holder is required to report the sale to the department himself. The proposed amendment to §58.160, concerning Taking or Attempting To Take Shrimp (Shrimping)—General Rules, removes redundant language, an expired effective date, and adopts through reference the Federal regulations that describe the approved Bycatch Reduction Devices (BRD) and Turtle Excluder Devices (TED) that are required in inside and outside waters. Further, the proposal removes the language describing approved BRD that now has been included through reference of the Federal Regulations. The rationale and justifications for the use of TEDs and BRDs in shrimp trawls is the same as previously stated in the proposed rulemaking published in the July 14, 2000, issue of the Texas Register (25 TexReg 6666), which was adopted in the October 6, 2000, issue of the Texas Register (25 TexReg 10152). Due to joint law enforcement agreements between state and federal enforcement officials the need to have the language specifically repeated in state law is not deemed necessary.

The proposed amendment to §58.203, concerning Licensing, and §58.205, concerning Display of License, clarifies that when fishing crab fishermen are required to have the "display license" rather than a metal "plate" clearly visible from both sides of the boat. This allows for the display license to be made from any material and thus replaces the language regarding a metal plate. The proposed amendment to §58.206, concerning Issuance and Renewal of Commercial Crab Fisherman's License, removes language needed to initiate the limited entry program for the crab fishery and expired effective dates. The proposed amendment to §58.208, concerning Limit on Number of Licenses Held; Designated License Holder, clarifies that businesses or partnerships must designate a person to hold their license. The proposed amendment to §58.209, concerning License Suspension and Revocation, removes an expired effective date and the conditional tone of the requirement that crab fishermen must obtain a license before fishing.

The proposed amendment to §58.302, concerning Display of License, clarifies that when fishing finfish fishermen are required to have the "display license" rather than a metal "plate" clearly visible from both sides of the boat. This allows for the display license to be made from any material and thus replaces the language regarding a metal plate.

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 local governments as a result of administering or enforcing the proposed rules. There will be reduced costs associated with state government as a result of these rules. Assuming that there are changes in the federal TED and BRD requirements in the next five years the actual cost to the state will be reduced as it will require fewer administrative costs to adopt the new rules through referencing a new date in the federal rules versus trying to mirror exactly the federal rules into state 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 amendments as proposed will be rules that are clearer, more concise and accurate. The requirements stated in the rules are not changing but the rules should be clearer and more understandable, causing less confusion for fishermen and thus greater compliance.

There will be no adverse economic effects on small businesses, microbusinesses, or persons required to comply with the rules as proposed, because the proposed rules adopt the current rules through reference and the other changes are clarifications and removal of stale effective dates.

The department has not drafted a local employment impact statement under the Administrative Procedures Act, §2001.022, as the agency has determined that the rules as proposed will not impact local economies.

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.

Subchapter B. STATEWIDE SHRIMP FISHERY PROCLAMATION

31 TAC §§58.102, 58.150, 58.160

The amendments are proposed under the authority of Parks and Wildlife Code (PWC), Chapter 61, which provides the commission with authority to regulate the periods of time when it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life and the means, methods, and places in which it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life; Chapter 66, which requires reporting the sale of aquatic product within the state; Chapter 77, which provides the commission with authority to regulate the catching, possession, purchase, and sale of shrimp; and Chapter 78, which requires the commission to adopt any rules necessary for the administration of the program.

The proposed amendments affect Parks and Wildlife Code, Chapters 61, 66, 77, and 78.

§58.102.Definitions.

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

(1) - (29) (No change.)

(30) Turtle Excluder Device (TED)—a device designed to be installed in a shrimp trawl forward of the cod end (tail bag) for the purpose of excluding sea turtles from the net and that meets the dimensions and specifications of an approved device as described in 50 CFR Part 223 §223.207 on May 15, 2005 .

§58.150.Sale, Purchase, and Handling of Shrimp—General Rules.

(a) Reporting by licensee. A licensee under this section who catches and then sells [ lands ] shrimp in the state to individuals other than shrimp house operator, wholesale fish dealer, retail fish dealer, wholesale truck dealer, retail truck dealer, bait dealer, bait-shrimp dealer shall submit to the department by the tenth day of each month, the report required under Parks and Wildlife Code, §66.019. [ on forms furnished by the department, a report stating: ]

[ (1) the number of pounds of shrimp landed at points in the state by the licensee during the reporting period;]

[ (2) the water from which the shrimp were taken; and]

[ (3) the names of the species of shrimp.]

(b) - (c) (No change.)

§58.160.Taking or Attempting To Take Shrimp (Shrimping)—General Rules.

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

(c) All commercial shrimp boats are required to exhibit the vessel's documentation or registration number on the port and starboard sides of the deckhouse or hull and on an appropriate weather deck. The number in block [ Arabic ] numerals in contrasting color to the background must be at least 18 inches in height on vessels over 65 feet and ten inches in height for all other vessels and be permanently attached.

(d) (No change.)

(e) Bycatch Reduction Device (BRD) requirements.

(1) Except as otherwise provided in this section, [ effective September 1, 2001, ] all shrimp boats must have an approved BRD installed in each trawl that is rigged for fishing. A trawl is rigged for fishing if it is in the water, or if it is shackled, tied, or otherwise connected to any trawl door or board, or to any tow rope, cable, pole or extension, either on board or attached in any manner to the shrimp boat.

(2) - (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(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(h) on May 15, 2005; or

(ii) An extended funnel device similar to "Jones/Davis", "large mesh" constructed and installed as follows:

(I) Extension Material. The small-mesh sections used on both sides of the large-mesh escape section are constructed of No. 18 nylon webbing with a mesh size of 6-7/8 inches over 5 stretched meshes. The front section is 120 meshes around by 6-1/2 meshes deep. The back section is 120 meshes around by 23 meshes deep.

(II) Large-Mesh Escape Section. The large-mesh escape section is constructed of webbing with a mesh size of 40-50 inches over 5 stretched meshes. This section is cut on the bar to form a section that is 15 inches by 75 inches in circumference. The leading edge is attached to the 6-1/2-mesh extension section and the rear edge is attached to the 23-mesh extension section.

(III) Funnel. The funnel is constructed of with a mesh size of 6-7/8 inches over 5 stretched meshes, No. 18 depth-stretched and heat-set polyethylene webbing. The circumference of the leading edge is 120 meshes and the back edge is 78 meshes. The short side of the funnel is 30 to 32 inches long and the opposite side of the funnel extends an additional 20 to 22 inches. The circumference of the leading edge of the funnel is attached to the forward small-mesh section three meshes forward of the large-mesh escape section and is evenly sewn, mesh for mesh, to the small-mesh section. The after edge of the funnel is attached to the after small-mesh section at its top and bottom eight meshes back from the large-mesh escape panel. Seven meshes of the top and seven meshes of the bottom of the funnel are attached to eight meshes at the top and bottom of the small-mesh section, such eight meshes being located immediately adjacent to the top and bottom centers of the small-mesh section on the side of the funnel's extended side. The extended side of the funnel is sewn at its top and bottom to the top and bottom of the small-mesh section, extending at an angle toward the top and bottom centers of the small-mesh section.

(IV) Semi-Rigid Hoop. A 24-inch diameter hoop constructed of plastic-coated trawl cable, swaged together with a 3/8-inch micropress sleeve, is installed five meshes behind the trailing edge of the large mesh section. The extension webbing must be laced to the ring around the entire circumference and must be equally distributed on the hoop, that is, 30 meshes must be evenly attached to each quadrant.

(V) Installation. The extended funnel BRD is attached 8 inches behind the posterior edge of the TED. If it is attached behind a soft TED, a second semi-rigid hoop, as prescribed in subclause (IV) of this clause, must be installed in the front section of the BRD extension webbing at the leading edge of the funnel. The cod end of the trawl net is attached to the trailing edge of the BRD.

(iii) Expanded Mesh. The expanded mesh BRD is constructed and installed exactly the same as the standard size extended funnel BRD, except that one side of the funnel is not extended to form a lead panel.

[ (A) Fish Eye-like devices (similar to "Fish Eye" or "Sea Eagle") minimum construction and installation requirements.]

[ (i) Frame must be constructed of aluminum or steel rod at least 1/4 inch in diameter.]

[ (ii) The escape opening cannot have a diameter any smaller than 5.0 inches, and the total escape opening area smaller than 36.0 square inches.]

[ (iii) Beginning of the opening may not be placed more than 12 meshes to either side of the centerline of the tailbag.]

[ (iv) Frame must be installed in the cod end of the trawl to create an escape opening in the trawl, facing in the direction of the mouth of the trawl, no further forward than 11 feet from the cod end tie-off rings.]

[ (v) Opening may be placed forward of, but may not be placed within 24 inches aft of the lazy line attachment system (i.e. any mechanism, such as elephant ears or choker straps, used to attach the lazy line to the cod end).]

[ (vi) Opening must not be obstructed while trawl is being towed.]

[ (B) Extended Funnel devices (similar to "Jones/Davis", "large mesh", and "Extended Funnel devices") minimum construction and installation requirements.]

[ (i) These devices must be attached between the Turtle Excluder Device (TED) of the trawl and the tailbag, using a functional tailbag length no longer than 15 feet.]

[ (ii) Jones-Davis BRD must contain all of the following:]

[ (I) Webbing extension. The webbing extension must be constructed from a single piece of No. 30 nylon webbing with a mesh size of 8-1/4 inches over 5 stretched meshes measuring 42 meshes by 120 meshes. A tube is formed from the extension webbing by sewing the 42-mesh side together.]

[ (II) 28-inch cable hoop. A single hoop must be constructed of 1/2-inch steel cable 88 inches in length. The cable must be joined at its ends by a 3-inch piece of 1/2-inch aluminum pipe and pressed with a 3/8-inch die to form a hoop. The inside diameter of this hoop must be between 27 and 29 inches. The hoop must be attached to the extension webbing 17-1/2 meshes behind the leading edge. The extension webbing must be quartered and attached in four places around the hoop, and every other mesh must be attached all the way around the hoop using No. 24 twine or larger. The hoop must be laced with 3/8-inch polypropylene or polyethylene rope for chaffing.]

[ (III) 24-inch hoop. A single hoop must be constructed of either No. 60 twine 80 inches in length or 3/8-inch steel cable 75-1/2 inches in length. If twine is used, the twine must be laced in and out of the extension webbing 39 meshes behind the leading edge, and the ends must be tied together. If cable is used, the cable must be joined at its ends by a 3-inch piece of 3/8-inch aluminum pipe and pressed together with a 1/4-inch die to form a hoop. The inside diameter of this hoop must be between 23 and 25 inches. The hoop must be attached to the extension webbing 39 meshes behind the leading edge. The extension webbing must be quartered and attached in four places around the hoop, and every other mesh must be attached all the way around the hoop using No. 24 twine or larger. The hoop must be laced with 3/8-inch polypropylene or polyethylene rope for chaffing.]

[ (IV) Funnel. The funnel must be constructed from four sections of 1-1/2-inch heat-set and depth-stretched polypropylene or polyethylene webbing. The two side sections must be rectangular in shape, 29-1/2 meshes on the leading edge by 23 meshes deep. The top and bottom sections are 29-1/2 meshes on the leading edge by 23 meshes deep and tapered 1 point 2 bars on both sides down to 8 meshes across the back. The four sections must be sewn together down the 23-mesh edge to form the funnel.]

[ (V) Attachment of the funnel in the webbing extension. The funnel must be installed two meshes behind the leading edge of the extension starting at the center seam of the extension and the center mesh of the funnel's top section leading edge. On the same row of meshes, the funnel must be sewn evenly all the way around the inside of the extension. The funnel's top and bottom back edges must be attached one mesh behind the 28-inch cable hoop (front hoop). Starting at the top center seam, the back edge of the top funnel section must be attached four meshes each side of the center. Counting around 60 meshes from the top center, the back edge of the bottom section must be attached 4 meshes on each side of the bottom center. Clearance between the side of the funnel and the 28-inch cable hoop (front hoop) must be at least 6 inches when measured in the hanging position.]

[ (VI) Cutting the escape openings. The leading edge of the escape opening must be located within 18 inches of the posterior edge of the turtle excluder device (TED) grid. The area of the escape opening must total at least 864 square inches. Two escape openings 10 meshes wide by 13 meshes deep must be cut 6 meshes apart in the extension webbing, starting at the top center extension seam, 3 meshes back from the leading edge and 16 meshes to the left and to the right (total of four openings). The four escape openings must be double selvaged for strength.]

[ (VII) Alternative Method for Constructing the Funnel and Escape Openings. The following method for constructing the funnel and escape openings may be used instead of the method described in subclauses (IV) -(VI) of this clause. With this alternative method, the funnel and escape openings are formed by cutting a flap in each side of the extension webbing; pushing the flaps inward; and attaching the top and bottom edges along the bars of the extension webbing to form the v-shape of the funnel. Minimum requirements applicable to this method include:]

[ (-a-) The funnel's top and bottom back edges must be attached one mesh behind the 28-inch cable hoop (front hoop);]

[ (-b-) clearance between the side of the funnel and the 28-inch cable hoop (front hoop) must be at least 6 inches when measured in the hanging position;]

[ (-c-) the leading edge of the escape opening must be located within 18 inches (45.7 cm) of the posterior edge of the turtle excluder device (TED) grid; and,]

[ (-d-) the area of the escape opening must total at least 864 square inches. To construct the funnel and escape openings using this method, begin 3-1/2 meshes from the leading edge of the extension, at the top center seam, count over 18 meshes on each side, and cut 13 meshes toward the back of the extension. Turn parallel to the leading edge, and cut 26 meshes toward the bottom center of the extension. Next, turn parallel to the top center seam, and cut 13 meshes forward toward the leading edge, creating a flap of webbing 13 meshes by 26 meshes by 13 meshes. Lengthen the flap to 18 meshes by adding a 4-1/2-mesh by 26-mesh rectangular section of webbing to the 26-mesh edge. Attach the 18-mesh edges to the top and bottom of the extension by sewing 2 bars of the extension to 1 mesh on the flap in toward the top center and bottom center of the extension, forming the exit opening and the funnel. Connect the two flaps together in the center with a 7-inch piece of No. 42 twine to allow adequate clearance for fish escapement between the flaps and the side openings. On each side, sew a 6-mesh by 10-1/2-mesh section of webbing to 6 meshes of the center of the 26-mesh cut on the extension and 6 meshes centered between the 13-mesh cuts 3-1/2 meshes from the leading edge. This forms two 10-mesh by 13-mesh openings on each side]

[ (VIII) Cone fish deflector. The cone fish deflector is constructed of 2 pieces of polypropylene or polyethylene webbing with a mesh size of 8-1/4 inches over 5 stretched meshes measuring 40 meshes wide by 20 meshes in length and cut on the bar on each side forming a triangle. Starting at the apex of the two triangles, the two pieces must be sewn together to form a cone of webbing. The apex of the cone fish deflector must be positioned within 10-14 inches of the posterior edge of the funnel.]

[ (IX) 11-inch cable hoop for cone deflector. A single hoop must be constructed of 5/16-inch or 3/8-inch cable 34-1/2 inches in length. The ends must be joined by a 3-inch piece of 3/8-inch aluminum pipe pressed together with a 1/4-inch die. The hoop must be inserted in the webbing cone, attached 10 meshes from the apex and laced all the way around with heavy twine.]

[ (X) Installation of the cone in the extension. The cone must be installed in the extension 12 inches behind the back edge of the funnel and attached in four places. The midpoint of a piece of No. 60 twine 4 feet in length must be attached to the apex of the cone. This piece of twine must be attached to the 28-inch cable hoop at the center of each of its sides; the points of attachment for the two pieces of twine must be measured 20 inches from the midpoint attachment. Two 8-inch pieces of No. 60 twine must be attached to the top and bottom of the 11-inch cone hoop. The opposite ends of these two pieces of twine must be attached to the top and bottom center of the 24-inch cable hoop; the points of attachment for the two pieces of twine must be measured 4 inches from the points where they are tied to the 11-inch cone hoop.]

[ (iii) Extended Funnel (standard size) must contain all of the following:]

[ (I) Extension Material. The small-mesh sections used on both sides of the large-mesh escape section are constructed of No. 30 nylon webbing with a mesh size of 8-1/4 inches over 5 stretched meshes. The front section is 120 meshes around by 6-1/2 meshes deep. The back section is 120 meshes around by 23 meshes deep.]

[ (II) Large-Mesh Escape Section. The large-mesh escape section is constructed of webbing with a mesh size of 40-50 inches over 5 stretched meshes. This section is cut on the bar to form a section that is 15 inches in length by 95 inches in circumference. The leading edge is attached to the 6-1/2-mesh extension section and the rear edge is attached to the 23-mesh extension section.]

[ (III) Funnel. The funnel is constructed of No. 30 depth-stretched and heat-set polyethylene webbing with a mesh size of 7-1/2 inches over 5 stretched meshes. The circumference of the leading edge is 120 meshes and the back edge is 78 meshes. The short side of the funnel is 34 to 36 inches long and the opposite side of the funnel extends an additional 22 to 24 inches. The circumference of the leading edge of the funnel is attached to the forward small-mesh section three meshes forward of the large-mesh escape section and is evenly sewn, mesh for mesh, to the small-mesh section. The after edge of the funnel is attached to the after small-mesh section at its top and bottom eight meshes back from the large-mesh escape panel. Seven meshes of the top and seven meshes of the bottom of the funnel are attached to eight meshes at the top and bottom of the small-mesh section, such eight meshes being located immediately adjacent to the top and bottom centers of the small-mesh section on the side of the funnel's extended side. The extended side of the funnel is sewn at its top and bottom to the top and bottom of the small-mesh section, extending at an angle toward the top and bottom centers of the small-mesh section.]

[ (IV) Semi-Rigid Hoop. A 30-inch diameter hoop constructed of plastic-coated trawl cable, swaged together with a 3/8-inch micropress sleeve, is installed five meshes behind the trailing edge of the large-mesh escape section. The extension webbing must be laced to the ring around the entire circumference and must be equally distributed on the hoop, that is, 30 meshes must be evenly attached to each quadrant.]

[ (V) Installation. The extended funnel BRD is attached 8 inches (20.3 cm) behind the posterior edge of the TED. If it is attached behind a soft TED, a second semi-rigid hoop, as prescribed in subclause (IV) of this clause, must be installed in the front section of the BRD extension webbing at the leading edge of the funnel. The cod end of the trawl net is attached to the trailing edge of the BRD.]

[ (iv) Extended Funnel (Inshore Size) must contain all of the following:]

[ (I) Extension Material. The small-mesh sections used on both sides of the large-mesh escape section are constructed of No. 18 nylon webbing with a mesh size of 6-7/8 inches over 5 stretched meshes. The front section is 120 meshes around by 6-1/2 meshes deep. The back section is 120 meshes around by 23 meshes deep.]

[ (II) Large-Mesh Escape Section. The large-mesh escape section is constructed of webbing with a mesh size of 40-50 inches over 5 stretched meshes. This section is cut on the bar to form a section that is 15 inches by 75 inches in circumference. The leading edge is attached to the 6-1/2-mesh extension section and the rear edge is attached to the 23-mesh extension section.]

[ (III) Funnel. The funnel is constructed of with a mesh size of 6-7/8 inches over 5 stretched meshes, No. 18 depth-stretched and heat-set polyethylene webbing. The circumference of the leading edge is 120 meshes and the back edge is 78 meshes. The short side of the funnel is 30 to 32 inches long and the opposite side of the funnel extends an additional 20 to 22 inches. The circumference of the leading edge of the funnel is attached to the forward small-mesh section three meshes forward of the large-mesh escape section and is evenly sewn, mesh for mesh, to the small-mesh section. The after edge of the funnel is attached to the after small-mesh section at its top and bottom eight meshes back from the large-mesh escape panel. Seven meshes of the top and seven meshes of the bottom of the funnel are attached to eight meshes at the top and bottom of the small-mesh section, such eight meshes being located immediately adjacent to the top and bottom centers of the small-mesh section on the side of the funnel's extended side. The extended side of the funnel is sewn at its top and bottom to the top and bottom of the small-mesh section, extending at an angle toward the top and bottom centers of the small-mesh section.]

[ (IV) Semi-Rigid Hoop. A 24-inch diameter hoop constructed of plastic-coated trawl cable, swaged together with a 3/8-inch micropress sleeve, is installed five meshes behind the trailing edge of the large mesh section. The extension webbing must be laced to the ring around the entire circumference and must be equally distributed on the hoop, that is, 30 meshes must be evenly attached to each quadrant.]

[ (V) Installation. The extended funnel BRD is attached 8 inches behind the posterior edge of the TED. If it is attached behind a soft TED, a second semi-rigid hoop, as prescribed in subclause (IV) of this clause, must be installed in the front section of the BRD extension webbing at the leading edge of the funnel. The cod end of the trawl net is attached to the trailing edge of the BRD.]

[ (v) Expanded Mesh. The expanded mesh BRD is constructed and installed exactly the same as the standard size extended funnel BRD, except that one side of the funnel is not extended to form a lead panel.]

(f) Turtle Excluder Device (TED) requirements.

(1) - (3) (No change.)

[ (4) Approved TEDs.]

[ (A) Hard TEDs. Hard TEDs are TEDs with rigid deflector grids and are categorized as "hooped hard TEDs," such as the NMFS and Cameron TEDs, or "single-grid hard TEDs," such as the Matagorda and Georgia TEDs. Hard TEDs complying with the following generic design criteria are approved TEDs:]

[ (i) Construction materials. A hard TED must be constructed of one or a combination of the following materials, with minimum dimensions as follows:]

[ (I) Solid steel rod with a minimum outside diameter of 1/4 inch;]

[ (II) Fiberglass or aluminum rod with a minimum outside diameter of 1/2 inch; or]

[ (III) Steel or aluminum tubing with a minimum outside diameter of 1/2 inch and a minimum wall thickness of 1/8 inch (also known as schedule 40 tubing).]

[ (ii) Method of attachment. A hard TED must be sewn into the trawl around the entire circumference of the TED with heavy twine.]

[ (iii) Angle of deflector bars.]

[ (I) The angle of the deflector bars must be between 30 degrees and 55 degrees from the normal, horizontal flow through the interior of the trawl, except:]

[ (II) In a hard TED with the position of the escape opening at the bottom of the trawl when the trawl is in its deployed position, the angle of the deflector bars from the normal, horizontal flow through the interior of the trawl, at any point, must not exceed 55 degrees, and:]

[ (-a-) If the deflector bars that run from top to bottom are attached to the bottom frame of the TED, the angle of the bottom-most 4 inches of each deflector bar, measured along the bars, must not exceed 45 degrees;]

[ (-b-) If the deflector bars that run from top to bottom are not attached to the bottom frame of the TED, the angle of the imaginary lines connecting the bottom frame of the TED to the bottom end of each deflector bar which runs from top to bottom must not exceed 45 degrees.]

[ (iv) Space between bars. The space between deflector bars and between the deflector bars and the frame must not exceed 4 inches.]

[ (v) Direction of bars. The deflector bars must run from top to bottom of the TED, as the TED is positioned in the trawl, except that up to four of the bottom bars and two of the top bars, including the frame, may run from side to side of the TED.]

[ (vi) Position of escape opening. The entire width of the escape opening from the trawl must be centered on and immediately forward of the frame at either the top or bottom of the trawl when the trawl is in its deployed position. The escape opening must be at the top of the trawl when the slope of the deflector bars from forward to aft is upward, and must be at the bottom when such slope is downward. For a single-grid TED, the escape opening must be cut horizontally along the same plane as the TED, and may not be cut in a fore-and-aft direction.]

[ (vii) Size of escape opening.]

[ (I) Hooped hard TED. The escape opening must not be smaller than 25 inches by 25 inches. A door frame may not be used over the escape opening.]

[ (II) Single-grid hard TED—The cut in the trawl webbing for the escape opening cannot be narrower than the outside width of the grid minus 4 inches on both sides of the grid, when measured as a straight line width. The resulting escape opening in the trawl webbing must measure at least 32 inches in horizontal taut length and, simultaneously, 10 inches in vertical taut height. The vertical measurement must be taken at the midpoint of the horizontal measurement.]

[ (viii) Size of hoop or grid.]

[ (I) Hooped hard TED.]

[ (-a-) An oval front hoop on a hard TED must have an inside horizontal measurement of at least 32 inches and an inside vertical measurement of at least 20 inches.]

[ (-b-) A circular front hoop on a hard TED must have an inside diameter of at least 32 inches.]

[ (II) Single-grid hard TED. A single-grid hard TED must have an inside horizontal and vertical measurement of at least 28 inches. The required inside measurements must be at the mid-point of the deflector grid.]

[ (ix) Flotation. Flotation is required on all hard TEDs with bottom escape openings.]

[ (I) Installation and construction requirements:]

[ (-a-) floats must be attached to the top one-half of the TED;]

[ (-b-) floats may be attached either outside or inside the trawl;]

[ (-c-) floats must be attached with heavy twine or rope;]

[ (-d-) floats must be constructed of aluminum, hard plastic, expanded polyvinyl chloride, or expanded vinyl acetate unless otherwise specified.]

[ (II) Flotation compliance options. The requirements of this clause may be satisfied if any of the criteria below are met.]

[ (-a-) Dimension requirements:]

[ (-1-) For hard TEDs with a circumference of 120 inches or more, a minimum of either one round, aluminum or hard plastic float, no smaller than 9.8 inches in diameter, or two expanded polyvinyl chloride or expanded ethylene vinyl acetate floats, each no smaller than 6.75 inches in diameter by 8.75 inches in length, must be attached.]

[ (-2-) For hard TEDs with a circumference of less than 120 inches, a minimum of either one round, aluminum or hard plastic float, no smaller than 9.8 inches in diameter, or one expanded polyvinyl chloride or expanded ethylene vinyl acetate float, no smaller than 6.75 inches in diameter by 8.75 inches in length, must be attached.]

[ (-b-) Float buoyancy requirements. Floats of any size and in any combination must be attached such that the combined buoyancy of the floats, as marked on the floats, equals or exceeds the weight of the hard TED, as marked on the TED. The buoyancy of the floats and the weight of the TED must be clearly marked on the floats and the TED as follows:]

[ (-1-) Float buoyancy markings. Markings on floats must be made in clearly legible raised or recessed lettering by the original manufacturer. The marking must identify the buoyancy of the float in water, expressed in grams or kilograms, and must include the metric unit of measure. The marking may additionally include the buoyancy in English units. The marking must identify the nominal buoyancy for the manufactured float.]

[ (-2-) TED weight markings. The marking must be made by the original TED manufacturer and must be permanent and clearly legible. The marking must identify the in-air, dry weight of the TED, expressed in grams or kilograms, and must include the metric unit of measure. The marking may additionally include the weight in English units. The marked weight must represent the actual weight of the individual TED as manufactured. Previously manufactured TEDs may be marked upon return to the original manufacturer. Where a TED is comprised of multiple detachable components, the weight of each component must be separately marked.]

[ (-c-) Buoyancy-dimension requirements. Floats of any size and in any combination, provided that they are marked pursuant to clause (ix)(II)(-a-) of this subparagraph, must be attached such that the combined buoyancy of the floats equals or exceeds the following values:]

[ (-1-) For floats constructed of aluminum or hard plastic, regardless of the size of the TED grid, the combined buoyancy must equal or exceed 14 lb. (6.4 kg);]

[ (-2-) For floats constructed of expanded polyvinyl chloride or expanded ethylene vinyl acetate, where the circumference of the TED is 120 inches or more, the combined buoyancy must equal or exceed 20 lb. (9.1 kg); or]

[ (-3-) For floats constructed of expanded polyvinyl chloride or expanded ethylene vinyl acetate, where the circumference of the TED is less than 120 inches, the combined buoyancy must equal or exceed 10 lb. (4.5 kg).]

[ (B) Jones TED. The Jones TED must be constructed of at least 1-1/4 inch outside diameter aluminum or steel pipe, and the pipe must have a wall thickness of at least 1/8 inch. It must be generally oval in shape with a flattened bottom. The deflector bars must be attached to the frame at a 45-degree angle from the horizontal positioning downward and each bar must be attached at only one end to the frame. The deflector bars must be attached and lie in the same plane as the frame. The space between the ends of the bottom deflector bars and the bottom frame bar must be no more than 3 inches. The spacing between the bottom three deflector bars on each side must be no greater than 2-1/2 inches. The spacing between all other deflector bars must not exceed 3-1/2 inches and spacing between ends of opposing deflector bars also must not exceed 3-1/2 inches. This TED must comply with subparagraphs (A)(ii), (iii), (vi), (vii)(II), (viii)(II), and (ix) of this paragraph with respect to the method of attachment, the angle of the deflector bars, the position of the escape opening, the size of the escape opening, the size of the grid, and flotation.]

[ (C) Soft TEDs. Soft TEDs are TEDs with deflector panels made from polypropylene or polyethylene netting. The Parker TED is the only approved TED. The Parker TED is a soft TED, consisting of a single triangular panel, composed of webbing of two different mesh sizes, that forms a complete barrier inside a trawl and that angles toward an escape opening in the top of the trawl.]

[ (i) Excluder Panel. The excluder panel of the Parker TED must be constructed of a single triangular piece of webbing with a mesh size of 40 inches over 5 stretched meshes and two trapezoidal pieces of webbing with a mesh size of 20 inches over 5 stretched meshes. The webbing must consist of No. 48 (3-mm thick) or larger polypropylene or polyethylene webbing that is heat-set knotted or braided. The leading edge of the triangular panel must be 36 meshes wide and be tapered on each side with all-bar cuts to converge on an apex, such that the length of each side is 36 bars. The leading edges of the trapezoidal panel must be 8 meshes wide and must be cut with all-bar cuts running parallel to each other, such that the length of the inner edge is 72 bars and the length of the outer edge is 89 bars and the resulting fore-and-aft edge is 8 meshes deep. The two trapezoidal panels must be sewn to the triangular panel to create a single triangular excluder panel. The 72-bar edge of each trapezoidal panel must be securely joined with twine to one of the 36-bar edges of the triangular panel, tied with knots at each knot of the trapezoidal webbing and at least two wraps of twine around each bar of trapezoidal and the adjoining bar of the 8-inch (20.3-cm) mesh. The adjoining fore-and-aft edges of the two trapezoidal panels must be sewn together evenly.]

[ (ii) Limitations on which trawls may have a Parker TED installed. The Parker TED must not be installed or used in a two-seam trawl with a tongue, nor in a triple-wing trawl (a trawl with a tongue along the headrope and a second tongue along the footrope). The Parker TED may be installed and used in any other trawl if the taper of the body panels of the trawl does not exceed 4 bars, 1 point and if it can be properly installed in compliance with subparagraph (C)(iii) of this paragraph.]

[ (iii) Panel installation:]

[ (I) Leading edge attachment. The leading edge of the excluder panel must be attached to the inside of the bottom of the trawl across a straight row of meshes. For a two-seam trawl or a four-seam, tapered-wing trawl, the row of meshes for attachment to the trawl must run the entire width of the bottom body panel, from seam to seam. For a four-seam, straight-wing trawl, the row of meshes for attachment to the trawl must run the entire width of the bottom body panel and half the height of each wing panel of the trawl. Every mesh of the leading edge of the excluder panel must be evenly sewn to this row of meshes; meshes may not be laced to the trawl.]

[ (II) Apex attachment. The apex of the triangular excluder panel must be attached to the inside of the top body panel of the trawl at the centerline of the trawl.]

[ (III) Side attachment. The sides of the excluder panel must be attached evenly to the inside of the trawl from the outside attachment points of the excluder panel's leading edge to the apex of the excluder panel. Each side must be sewn with the same sewing sequence, and, if the sides of the excluder panel cross rows of bars in the trawl, the crossings must be distributed evenly over the length of the side attachment.]

[ (iv) Escape opening for the Parker soft TED must be a longitudinal cut and meet the following specifications. A slit at least 56 inches in taut length must be cut along the centerline of the top body panel of the trawl immediately forward of the apex of the panel webbing. The slit must not be covered or closed in any manner. The edges and end points of the slit must not be reinforced in any way; for example, by attaching additional rope or webbing or by changing the orientation of the webbing.]

[ (D) Allowable modifications to hard TEDs and special hard TEDs. Unless otherwise prohibited in subparagraph (B) of this paragraph, only the following modifications may be made to an approved hard TED or an approved special hard TED:]

[ (i) Floats. In addition to floats required pursuant to subparagraph (A)(ix) of this paragraph, floats may be attached to the top one-half of the TED, either outside or inside the trawl, but not to a flap. Floats attached inside the trawl must be behind the rear surface at the top of the TED.]

[ (ii) Accelerator funnel. An accelerator funnel may be installed in the trawl, if it is made of net webbing material with a stretched mesh size not greater 8-1/4 inches over a series of 5 stretched meshes if it has an inside horizontal opening of at least 39 inches when measured in a taut position, if it is inserted in the trawl immediately forward of the TED, and if its rear edge does not extend past the bars of the TED. The trailing edge of the accelerator funnel may be attached to the TED on the side opposite the escape opening if not more than 1/3 of the circumference of the funnel is attached, and if the inside horizontal opening of at least 39 inches is maintained. In a bottom-opening TED, only the top 1/3 of the circumference of the funnel may be attached to the TED. In a top-opening TED, only the bottom 1/3 of the circumference of the funnel may be attached to the TED.]

[ (iii) Webbing flap. A webbing flap may be used to cover the escape opening under the following conditions: No device holds it closed or otherwise restricts the opening; it is constructed of webbing with a stretched mesh size not greater 8-1/4 inches over a series of 5 stretched meshes; it lies on the outside of the trawl; it is attached along its entire forward edge forward of the escape opening; it is not attached on the sides beyond the row of meshes that lies 6 inches behind the posterior edge of the grid; and it does not extend more than 24 inches beyond the posterior edge of the grid, except for boats fishing with a hard TED with the position of the escape opening at the bottom of the trawl when the trawl is in its deployed position, in which case the webbing flap must not extend beyond the posterior edge of the grid.]

[ (iv) Chafing webbing. A single piece of nylon webbing, with a twine size no smaller than size 36 (2.46 mm in diameter), may be attached outside of the escape opening webbing flap to prevent chafing on bottom opening TEDs. This webbing may be attached along its leading edge only. This webbing may not extend beyond the trailing edge or sides of the existing escape opening webbing flap, and it must not interfere or otherwise restrict the turtle escape opening.]

[ (v) Roller gear. Roller gear may be attached to the bottom of a TED to prevent chafing on the bottom of the TED and the trawl net. When a webbing flap is used in conjunction with roller gear, the webbing flap must be of a length such that no part of the webbing flap can touch or come in contact with any part of the roller gear assembly or the means of attachment of the roller gear assembly to the TED, when the trawl net is in its normal, horizontal position. Roller gear must be constructed according to one of the following design criteria:]

[ (I) A single roller consisting of hard plastic shall be mounted on an axle rod, so that the roller can roll freely about the axle. The maximum diameter of the roller shall be 6 inches, and the maximum width of the axle rod shall be 12 inches. The axle rod must be attached to the TED by two support rods. The maximum clearance between the roller and the TED shall not exceed 1 inch at the center of the roller. The support rods and axle rod must be made from solid steel or solid aluminum rod no larger than 1/2 inch in diameter. The attachment of the support rods to the TED shall be such that there are no protrusions (lips, sharp edges, burrs, etc.) on the front face of the grid. The axle rod and support rods must lie entirely behind the plane of the face of the TED grid.]

[ (II) A single roller consisting of hard plastic tubing shall be tightly tied to the back face of the TED grid with rope or heavy twine passed through the center of the roller tubing. The roller shall lie flush against the TED. The maximum outside diameter of the roller shall be 3-1/2 inches, the minimum outside diameter of the roller shall be 2 inches, and the maximum length of the roller shall be 12 inches. The roller must lie entirely behind the plane of the face of the grid.]

(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 September 19, 2005.

TRD-200504141

Gene McCarty

Chief of Staff

Texas Parks and Wildlife Department

Earliest possible date of adoption: October 30, 2005

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


Subchapter C. STATEWIDE CRAB FISHERY PROCLAMATION

31 TAC §§58.203, 58.205, 58.206, 58.208, 58.209

The amendments are proposed under the authority of Parks and Wildlife Code (PWC), Chapter 61, which provides the commission with authority to regulate the periods of time when it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life and the means, methods, and places in which it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life; Chapter 66, which requires reporting the sale of aquatic product within the state; Chapter 77, which provides the commission with authority to regulate the catching, possession, purchase, and sale of shrimp; and Chapter 78, which requires the commission to adopt any rules necessary for the administration of the program.

The proposed amendments affect Parks and Wildlife Code, Chapters 61, 66, 77, and 78.

§58.203.Licensing.

(a) (No change.)

(b) A person may operate a boat bearing a commercial crab fisherman's display license plate, ONLY if that person possesses on board the boat the following documentation:

(1) - (2) (No change.)

(c) (No change.)

§58.205.Display of License.

(a) (No change.)

(b) No more than one set of commercial crab fisherman's display license plates may be on board a commercial crab fishing boat at any one time.

§58.206.Issuance and Renewal of Commercial Crab Fisherman's License.

(a) The [ Beginning September 1, 1998, the department will issue a commercial crab fisherman's license only to a person who documents to the satisfaction of the department that the person concurrently held each of the following licenses and tags during the period September 1, 1995, through November 13, 1996: ]

[ (1) General commercial fisherman's license;]

[ (2) Commercial fishing boat license; and]

[ (3) One or more commercial crab trap tags.]

[ (b) After August 31, 1999, the ] department may renew a commercial crab fisherman's license only if the person seeking to renew the license held the license to be renewed at the end of [ during ] the previous license year.

(b) [ (c) ] Individuals not meeting the requirements set forth in subsection [ subsections ] (a) [ and (b) ] of this section may appeal by application to the Crab License Management Review Board as provided in Parks and Wildlife Code, §78.103.

(c) [ (d) ] When evaluating a license application or license renewal application, the department may also consider department records pertaining to the applicant's history in the crab fishery.

§58.208.Limit on Number of Licenses Held; Designated License Holder.

(a) (No change.)

(b) A commercial crab fisherman's license may only be issued to an individual. A business or partnership [ person, other than an individual who wishes to retain or seeks to renew a license ] must designate an individual to whom the license will be issued.

§58.209.License Suspension and Revocation.

(a) The executive director, after notice and the opportunity for a hearing, may suspend a commercial crab fisherman's license if the license holder and all other operators of the vessel operated for the purposes of commercial crab fishing, in the aggregate, are convicted of two or more flagrant offenses. The suspension shall be for:

(1) six months, if:

(A) the date of each offense is within any 12-consecutive-month period [ after August 31, 1998 ]; and

(B) (No change.)

(2) (No change.)

(b) - (c) (No change.)

(d) For purposes of this section, a flagrant offense includes:

(1) - (3) (No change.)

(4) fishing for crabs without obtaining the appropriate license[ , if required, as ] prescribed in this subchapter [ section ]; or

(5) (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 September 19, 2005.

TRD-200504142

Gene McCarty

Chief of Staff

Texas Parks and Wildlife Department

Earliest possible date of adoption: October 30, 2005

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


Subchapter D. FINFISH FISHERY PROCLAMATION

31 TAC §58.302

The amendments are proposed under the authority of Parks and Wildlife Code (PWC), Chapter 61, which provides the commission with authority to regulate the periods of time when it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life and the means, methods, and places in which it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life; Chapter 66, which requires reporting the sale of aquatic product within the state; Chapter 77, which provides the commission with authority to regulate the catching, possession, purchase, and sale of shrimp; and Chapter 78, which requires the commission to adopt any rules necessary for the administration of the program.

The proposed amendments affect Parks and Wildlife Code, Chapters 61, 66, 77, and 78.

§58.302.Display of License.

(a) A boat operated for the purposes of commercial finfish fishing is required to have a commercial finfish fisherman's display license [ plate ] issued under this subchapter prominently displayed as to be clearly visible from both sides of the boat.

(b) No more than one set of commercial finfish fisherman's display license [ plates ] may be on board a commercial finfish fishing boat at any one time.

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 September 19, 2005.

TRD-200504143

Gene McCarty

Chief of Staff

Texas Parks and Wildlife Department

Earliest possible date of adoption: October 30, 2005

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


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