Presenter: Larry McKinney

Commission Agenda Item No. 5
Action
Commission Delegation of Authority to Close and Open the Summer Gulf Shrimp Season
January 25, 2007

I. Executive Summary: Parks and Wildlife Code §77.062 related to Change in General Closed Season for Gulf Shrimp allows the Texas Parks and Wildlife Commission to delegate its authority to close and open the summer gulf shrimp season in outside waters to the Executive Director. Prior to the Commission adoption of the Shrimp Fishery Management Plan (SFMP) in 1989 the Commission had been granted authority under the Shrimp Management Act of 1959 to alter the gulf closed season to provide for an earlier, later or longer season not to exceed 60 days and the Commission was allowed to delegate its authority to the Executive Director in order to accomplish these alterations in seasons based on sound biological data. Historically, Texas state waters were managed and the summer closure period was changed through the delegation to the Executive Director. In 1981, a coordinated effort to close both state and federal waters became know as the "Texas Closure" and has been carried out with the delegation of authority to the Executive Director as needed.

II. Discussion: Responsibility for adopting rules covering the taking, attempting to take, possession, purchase, and sale of shrimp resources in the salt waters of Texas is set forth in Parks and Wildlife Code, Chapter 77 Shrimp. This item amends 31 TAC Chapter 58, Subchapter B (Statewide Shrimp Fishery Proclamation), §58.161 Shrimping in Outside Waters.

Prior to the adoption of the SFMP and since the adoption of the plan, the Executive Director has exercised that authority based on wording in the statute, which allows that delegation and the discussion regarding that authority in the SFMP. However, the Commission has delegated its authority to the Executive Director several times since then (e.g., Migratory Game Bird Proclamation 31 TAC §65.313, contracting 31 TAC §51.60 etc.), but in each of these instances clear language has been provided by rule using the Administrative Procedures Act that explicitly conveys this authority. Staff believes that the establishment of these procedures aids the public in understanding the workings of the Department and should be used at every opportunity. To be consistent with these procedures, this action amends 31 TAC §58.161 Shrimping in Outside Waters, delegating the Commission's authority to close and open the summer gulf shrimp season in outside waters to the Executive Director.

III. Recommendation: Staff recommends that the Regulations Committee send the Commission the following proposed motion:

"Texas Parks and Wildlife Commission amends 31 TAC Chapter 58, Subchapter B (Statewide Shrimp Fishery Proclamation), §58.161 Shrimping in Outside Waters, as published in the December 22, 2006 Texas Register (31 TexReg. 10247)."

Attachments – 1

  1. Exhibit A – Delegation of Commission Authority to Close and Open Gulf Shrimp Season to Executive Director

Commission Agenda Item No. 5
Exhibit A

Delegation of Commission Authority to Close and Open
Gulf Shrimp Season to Executive Director
Proposal Preamble
January 25, 2007

1. Introduction.

Responsibility for adopting rules covering the taking, attempting to take, possession, purchase, and sale of shrimp resources in the salt waters of Texas is set forth in Parks and Wildlife Code, Chapter 77 Shrimp. This action proposes an amendment to 31 TAC Chapter 58, Subchapter B (Statewide Shrimp Fishery Proclamation), §58.161 Shrimping in Outside Waters.

Parks and Wildlife Code § 77.062 related to Change in General Closed Season for Gulf Shrimp allows the Texas Parks and Wildlife Commission to delegate its authority to close and open the summer gulf shrimp season in outside waters to the Executive Director. Prior to the Commission adoption of the of the Shrimp Fishery Management Plan (SFMP) in 1989 the Commission had been granted authority under the Shrimp Management Act of 1959 to alter the gulf closed season to provide for an earlier, later or longer season not to exceed 60 days and the Commission was allowed to delegate its authority to the Executive Director in order to accomplish these alterations in seasons based on sound biological data. Historically, Texas state waters were managed and the summer closure period was changed through the delegation to the Executive Director. In 1981, a coordinated effort to close both state and federal waters became know as the “Texas Closure” and has been carried out with the delegation of authority to the Executive Director as needed.

Prior to the adoption of the SFMP and since the adoption of the plan, the Executive Director has exercised that authority based on wording in the statute which allows that delegation and the discussion regarding that authority in the SFMP. However, the Commission has delegated its authority to the Executive Director several times since then (e.g., Migratory Game Bird Proclamation 31 TAC §65.313, contracting 31 TAC §51.60 etc.), but in each of these instances clear language has been provided by rule using the Administrative Procedures Act that explicitly conveys this authority. Staff believes that the establishment of these procedures aids the public in understanding the workings of the Department and should be used at every opportunity. To be consistent with these procedures, this action amends 31 TAC §58.161 Shrimping in Outside Waters, delegating the Commission’s authority to close and open the summer gulf shrimp season in outside waters to the Executive Director.

2. Fiscal Note.

Robin Riechers has determined that for each of the first five years that the proposed rule is in effect, there will be no fiscal implications to state or local governments as a result of administering or enforcing the proposed rule. This rule just establishes in proclamation the clear delegation of authority and will have not have any direct costs associated with that delegation.

3. Public Benefit/Cost Note.

Robin Riechers also has determined that for each of the first five years the rule as proposed is in effect:

(A) The public benefit expected as a result of the proposed rule will be clarification of the procedure of delegation of authority to the Executive Director reducing any confusion that exists regarding the Director authority to approve the opening or closing of the summer gulf shrimp season.

(B) There will be no direct costs for persons required to comply with the rule as proposed.

(C) The department has determined that Government Code, § 2001.0225 (Regulatory Analysis of Major Environmental Rules) does not apply to the proposed rule.

(D) The department has determined that Government Code, Chapter 2007 (Governmental Action Affecting Private Property Rights), does not apply to the proposed rule.

4. Request for Public Comment.

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.

5. Statutory Authority.

The new rule is proposed under the authority of Parks and Wildlife Code, Chapter 77, which provides the commission with authority to regulate the taking, attempting to take, possession, purchase, and sale of shrimp resources in the salt waters of Texas. This chapter also allows the Parks and Wildlife Commission to delegate its authority for closing and opening the shrimp season in the Texas territorial sea portion of the Gulf of Mexico.

The proposed new rule affects Parks and Wildlife Code, Chapter 77.

§58.161 Shrimping in Outside Waters

(a) — (c) no change.

(d) Gulf shrimping seasons. The outside waters are open to shrimping except:

(1) — (2) no change.

(3) Summer closed season:

(A) The outside waters are closed from 30 minutes after sunset on May 15 to 30 minutes after sunset July 15.

(B) The commission may change the opening and closing dates to provide an earlier, later, or longer closed season not to exceed 75 days, and the Executive Director is delegated to exercise this authority to open and close the season as provided in PWC § 77.062. CHANGE IN GENERAL CLOSED SEASON.

(C) The department will provide 72 hours public notice prior to a change in the closing date, and 24 hours public notice prior to reopening the season.

(4) — (5) no change.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.

Issued in Austin, Texas,


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