Commission Agenda Item No. 10
Presenter:  Robin Riechers

Action
Statewide Commercial Fishing Proclamation Regarding theConsistency of
Federal Rules Concerning Bycatch Reduction Device (BRD) Rules and
Individual Fishing Quota (IFQ) Rules
August 26, 2010

I.       Executive Summary:  This item presents proposed changes to rules governing the use of bycatch reduction devices (BRDs) and the landing of commercial catches of fish species affected by the federal Individual Fishing Quota (IFQ) system.  The proposed rules would:

  • Provide for the continued use in state waters of BRDs provisionally approved by the National Marine Fisheries Service for use in federal waters;
  • Adopt federal regulations governing IFQ species by reference 

II.     Discussion:  Under Parks and Wildlife Code, §77.007, the Commission is authorized to regulate the catching, possession, purchase, and sale of shrimp, including the times, places, conditions, and means and manner of catching shrimp.  Under Parks and Wildlife Code, §67.004, the Commission is required to establish any limits on the taking, possession, propagation, transportation, importation, exportation, sale, or offering for sale of nongame fish that the department considers necessary to manage the species.

Bycatch reduction devices (BRDs) reduce the mortality of non-target aquatic organisms that occurs during shrimping, especially among juvenile finfish and invertebrate populations.  The use of BRDs reduces shrimp-trawl bycatch fishing mortality for recreationally important species such as red snapper, flounder, Atlantic croaker, sand seatrout, and blue crab.  The use of BRDs also allows the escapement of other organisms, which enhances the overall viability of the ecosystem and has the potential to increase populations of finfish and invertebrates impacted by trawling.

The state rules requiring shrimp trawls to be equipped with BRDs have been in effect since 2000 and specify that only those BRDs classified by the National Marine Fisheries Service (NMFS) as “approved devices” are lawful for use in waters under state jurisdiction.  From time to time NMFS engages in federal rulemaking to designate new or modified BRD types as “approved devices.”  In a final rule published in the Federal Register on May 24, 2010 (75 FR 28760 ), NMFS extended the effectiveness of a previous rulemaking on February 13, 2008 (73 FR 8219), which added three new BRD types to the list of BRDs approved for use in the federal waters of the Gulf of Mexico.  The extended approval is until May 24, 2012 and the effective date of the federal rule change is June 23, 2010.  The proposed amendment allows the approved BRDs to continue to be used in state as well as federal waters.  By creating regulatory consistency between state and federal rules, the department intends to enable shrimp vessels that fish in both federal and state waters to continue to do so without having to switch BRDs.  The proposed rule also permits an increase in the types of BRDs that may be lawfully used by shrimp vessels, giving fishermen more options.  The rule as proposed also would provide for greater economic efficiency in the fishery and would eliminate potential confusion that could result from differential regulations enforced by state and federal authorities.

The Individual Fishing Quota (IFQ) is a federal regulatory program governing the commercial harvest of certain species of fish in federal waters.  Federal rules require a federal permit and an IFQ vessel endorsement for the harvest of Gulf of Mexico Reef Fish.  The IFQ is an allocation of a percentage of the total allowable harvest to individuals engaged in commercial fishing for certain species in federal waters, who in turn must comply with certain documentation and reporting requirements.  Until recently, federal IFQ rules impacted Texas only with respect to the commercial harvest of red snapper; however recent federal action extended the applicability of federal IFQ rules to include two additional species in the Gulf of Mexico (gulf groupers and tilefish).  The new rule adopts the federal rule by reference and is necessary to allow enforcement of these requirements in state as well as federal jurisdiction and to ensure that fish landed in Texas are landed in compliance with federal limits.

The proposed rules were published in the July 16, 2010, issue of the Texas Register (35 TexReg 6280).  A summary of public comment on the proposed rules will be presented at the time of the hearing.

III.    Recommendation:  Staff recommends that the Commission adopt the proposed motion:

“The Texas Parks and Wildlife Commission adopts an amendment to 57.160, concerning Taking or Attempting to Take Shrimp (Shrimping) — General Rules, and the repeal of §57.994 and new §§57.994, concerning Individual Fishing Quota, with changes as necessary to the proposed text as published in the July 16, 2010, issue of the Texas Register (35 TexReg 6280).”

Attachments – 2

  1. Exhibit A – Proposed Bycatch Reduction Devises (BRDs) Rules
  2. Exhibit B — Proposed Individual Fishing Quotas (IFQs) Rules

Commission Agenda Item No. 10
Exhibit A

Bycatch Reduction Device Rules
Proposal Preamble

1. Introduction.

         The Texas Parks and Wildlife Department (the department) proposes an amendment to §58.160, concerning Taking or Attempting to Take Shrimp (Shrimping) — General Rules.

         The proposed amendment would update the reference to federal regulations governing the dimensions and specifications of approved Bycatch Reduction Devices (BRDs) to accommodate changes to the federal rules.

         Bycatch reduction devices (BRDs) reduce the mortality of non-target aquatic organisms that occurs during shrimping, especially among juvenile finfish and invertebrate populations. The use of BRDs reduces shrimp-trawl bycatch fishing mortality for recreationally important species such as red snapper, flounder, Atlantic croaker, sand seatrout, and blue crab. The use of BRDs also allows the escapement of other organisms, which enhances the overall viability of the ecosystem and has the potential to increase populations of finfish and invertebrates impacted by trawling.

         The state rules requiring shrimp trawls to be equipped with BRDs have been in effect since 2000 and specify that only those BRDs classified by the National Marine Fisheries Service (NMFS) as “approved devices” are lawful for use in waters under state jurisdiction. From time to time NMFS engages in federal rulemaking to designate new or modified BRD types as “approved devices.” In a final rule published in the Federal Register on May 24, 2010 (75 FR 28760 ), NMFS extended the effectiveness of provisional BRDs authorized by a previous rulemaking on February 13, 2008 (73 FR 8219), which added three new BRD types to the list of BRDs approved for use in the federal waters of the Gulf of Mexico. The extended approval is until May 24, 2012 and the effective date of the federal rule change is June 23, 2010.

         The proposed amendment to §58.160 would allow the approved BRDs to continue to be used in state as well as federal waters. By creating regulatory consistency between state and federal rules, the department intends to enable shrimp vessels that fish in both federal and state waters to continue to do so without having to switch BRDs. The proposed rule also would permit an increased variety of BRDs to be lawfully used by shrimp vessels, giving fishermen more options in terms of what type of BRD to use. The rule as proposed also would provide for greater economic efficiency in the fishery and would eliminate potential confusion that could result from differential regulations enforced by state and federal authorities.

         As required by Parks and Wildlife Code, §77.077, the department finds that the use of BRDs demonstrably reduces bycatch of fish species by shrimp trawls and that the approval of additional types of BRDs neither jeopardizes bycatch species nor causes hardship for shrimpers.

2. Fiscal Note.

         Mr. Robin Riechers, Coastal Fisheries Division Director, 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 government as a result of enforcing or administering the rule.

3. Public Benefit/Cost Note.

         Mr. Riechers 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 a more sustainable shrimp fishery because increasingly efficient BRDs will reduce the impact of that fishery on other bycatch species.

         (B) Under the provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses and micro-businesses. The department has determined that there will be no direct economic effect on small or micro-businesses or persons required to comply as a result of the proposed rule. The rule would not compel or mandate any action on the part of any entity, including small businesses or microbusinesses.  Instead, the rule would create additional flexibility for the shrimp fishing industry by allowing three additional BRD designs to be used. Accordingly, the department has not prepared a regulatory flexibility analysis under Government Code, Chapter 2006.

         (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 Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rule.

         (E) 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.

4. Request for Public Comment.

         Comments on the proposed rule may be submitted to Jeremy Leitz, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4333; or jeremy.leitz@tpwd.state.tx.us.

5. Statutory Authority.

         The amendment is proposed under Parks and Wildlife Code, §77.007, which authorizes the commission to regulate the catching, possession, purchase, and sale of shrimp, including the times, places, conditions, and means and manner of catching shrimp.

         The proposed amendment affects Parks and Wildlife Code, Chapter 77.

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

                 (a) – (d) (No change.)

                 (e) Bycatch Reduction Device (BRD) requirements.

                         (1) – (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 in effect as of June 23, 2010[on February 13, 2008].

                                  (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 as of June 23, 2010[on February 13, 2008]; or

                                          (ii) – (iii) (No change.)

                 (f) (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, on


Commission Agenda Item No. 10
Exhibit B

Statewide Commercial Fishing Proclamation
Federal Individual Fishing Quota (IFQ) Rules
Proposal Preamble

1.  Introduction.

         The Texas Parks and Wildlife Department (the department) proposes the repeal of §57.994, concerning Individual Fishing Quota (IFQ) and new §57.994, concerning Individual Fishing Quota (IFQ). The proposed repeal and new rule would eliminate the current repetition of federal rule language and instead adopt the provisions of 50 CFR §§622.16 and 622.20 by reference.

         The IFQ is a federal regulatory program governing the commercial harvest of certain species of fish in federal waters. Federal rules require a federal permit and a federal Individual Fishing Quota (IFQ) vessel endorsement for the harvest of Gulf of Mexico Reef Fish. The IFQ is an allocation of a percentage of the total allowable harvest to individuals engaged in commercial fishing for certain species in federal waters, who in turn must comply with certain documentation and reporting requirements. Until recently, federal IFQ rules impacted Texas only with respect to the commercial harvest of red snapper; however recent federal action amended 50 CFR Part 622, Subpart B to extend the applicability of federal IFQ rules to include two additional species in the Gulf of Mexico (gulf groupers and tilefish). The final rule was published in the Federal Register on March 1, 2010 (75 FR 9116) and took effect on March 31, 2010. The new rule is necessary to allow enforcement of these requirements in state as well as federal jurisdiction and to insure that fish landed in Texas are landed in compliance with federal limits.

2. Fiscal Note.

         Mr. Robin Riechers, Coastal Fisheries Division Director, 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 government as a result of enforcing or administering the rule.

3. Public Benefit/Cost Note.

         Mr. Riechers 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 a single enforcement standard that eliminates potential confusion in enforcement and compliance.

         (B) Under the provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses and micro-businesses. The department has determined that since under federal law it is illegal to land red snapper, grouper, or tilefish in Texas that are not harvested, possessed, transported, or landed in compliance with federal law, there is no direct adverse economic effect on small or micro-businesses or persons required to comply as a result of the proposed rule, since it creates a state regulation mirroring the federal regulations that must be complied with anyway.

         (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 Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rule.

         (E) 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 rule may be submitted to Jeremy Leitz, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4333; or jeremy.leitz@tpwd.state.tx.us.

5. Statutory Authority.

         The amendment is proposed under Parks and Wildlife Code, §67.004, which requires the commission to establish any limits on the taking, possession, propagation, transportation, importation, exportation, sale, or offering for sale of nongame fish that the department considers necessary to manage the species.

         The proposed amendment affects Parks and Wildlife Code, Chapter 67.

         §57.994. Individual Fishing Quota (IFQ). The Texas Parks and Wildlife Department adopts by reference the provisions of 50 CFR §§622.16 and 622.20, which shall govern the take, possession, transportation, and landing of red snapper, grouper, and tilefish in Texas waters.

         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, on


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