Commission Agenda Item No. 4
Presenter: Brandi Reeder

Action
Oyster Proclamation
Possession of Undersized Oysters
August 22, 2013

  1. Executive Summary: This item seeks adoption of proposed changes to the Statewide Oyster Proclamation that would clarify the rules governing possession of undersized oysters
  1. Discussion: Responsibility for regulating the take, attempted take, possession, purchase, and sale of oyster resources in the salt waters of Texas is delegated to the Commission under Parks and Wildlife Code, Chapter 76.

    Department game wardens have reported scenarios in which multiple sacks of oysters are encountered on board a vessel, but the number of sacks of “culled” (oysters that have been separated by size) versus “unculled” oysters cannot be definitively ascertained. The proposed amendments are intended to eliminate confusion and create a definitive standard for purposes of compliance and enforcement.

    At the Work Session meeting on May 22, 2013, staff was authorized to publish the proposed rules in the Texas Register for public comment. The proposed rules appeared in the July 19, 2013 issue of the Texas Register (38 TexReg 4564-4566). A summary of public comment on the proposed rules will be presented at the time of the hearing.

  1. Recommendation: Staff recommends that the Commission adopt the proposed motion:
    “The Texas Parks and Wildlife Commission adopts amendments to §§58.11, 58.21, and 58.22, concerning the Statewide Oyster Fishery Proclamation, with changes as necessary to the proposed text as published in the July 19, 2013, issue of the Texas Register (38 TexReg 4564-4566).”

Attachments – 1

  1. Exhibit A—Statewide Oyster Fishery Proclamation

Commission Agenda Item No. 4
Exhibit A

POSSESSION OF UNDERSIZED OYSTERS

PROPOSAL PREAMBLE

 1. Introduction.

         The Texas Parks and Wildlife Department proposes amendments to §58.11, concerning Definitions, §58.21, concerning Taking or Attempting to Take Oysters from Public Oyster Beds: General Rules, and §58.22, concerning Commercial Fishing. The proposed amendments collectively would act to clarify rules governing the handling and storage of undersized oysters on licensed commercial oyster boats at the time of harvest. Under the provisions of §58.21(b)(4), it is unlawful for any person to take or possess a cargo of oysters if more than 15% of the oysters are undersized (between ¾-inch and three inches in length). Section 58.21(b)(2) requires undersized oysters to be returned to the reef following harvest. Therefore, as oysters are harvested, undersized oysters must be separated from oysters that are lawful to retain. This process is known as “culling.” Under current §58.22(d), it is unlawful to possess more than 50 sacks of culled oysters of legal size or to possess more than six sacks of unculled oysters while on the reef. Section 58.21(b)(3) further requires unculled oysters to be kept separate from culled oysters. Department game wardens have reported scenarios in which multiple sacks of oysters are encountered on board a vessel, but the number of sacks of culled versus unculled oysters cannot be definitively ascertained.  The proposed amendments are intended to eliminate confusion and create a definitive standard for purposes of compliance and enforcement.

         The proposed amendment to §58.11 would add a definition of “culling.” Current §58.21(b)(2) refers to “culled” and “unculled” oysters; however, “culling” is not defined. Therefore, the proposed amendment would define “culling” as “the process of separating undersized oysters from oysters that are lawful to possess.”

         The proposed amendment to §58.21 would alter subsection (b)(3) to prohibit the placement of unculled oysters in sacks. The department intends to create a clear distinction between oysters that have been culled and oysters that have not been culled.

         The proposed amendment to §58.22 would alter subsection (d)(3) to comport the six-sack limit of unculled oysters that may be possessed aboard a licensed commercial oyster boat while on a reef with the proposed amendment to §58.21. Since the proposed amendment to §58.21 would prohibit the sacking of unculled oysters, the department must alter the provisions of §58.22 to prevent a conflict; therefore, the proposed amendment limits the volume of unculled oyster that may be possessed aboard a licensed commercial oyster boat while on the reef as “the volumetric equivalent of 6 sacks.” A “sack” of oysters is currently defined as “a volume of oysters equivalent to a box that weighs no more than 110 pounds including the sack.”

2. Fiscal Note.

         Brandi Reeder, Fisheries Law Administrator, has determined that for each of the first five years that the proposed rules will be in effect, there will be no fiscal implications to state or local governments as a result of administering or enforcing the proposed rules.

3. Public Benefit/Cost Note.

         Ms. Reeder also has determined that for each of the first five years the rules as proposed are in effect:

         (A) The public benefit anticipated as a result of enforcing or administering the rules as proposed will be the protection of the state’s oyster fishery from injury as a result of the harvest of undersize oysters.

         (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. As required by Government Code, §2006.002(g), the Office of the Attorney General has prepared guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small businesses. Those guidelines state that an agency need only consider a proposed rule’s “direct adverse economic impacts” to small businesses and micro-businesses to determine if any further analysis is required. For that purpose, the department considers “direct economic impact” to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services.

         Department records indicate that there are 522 persons who hold either a resident or nonresident commercial oyster boat license. The department has determined that most if not all businesses affected by the proposed rules qualify as small or microbusinesses. The department has also determined that the rules as proposed serve to clarify existing rules and will not result in direct economic impacts to small or microbusinesses.

         The proposed rules will not result in adverse economic effects on persons required to comply.

         (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 rules as proposed will not impact local economies.

         (D) The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rule.

4. Request for Public Comment

         Comments on the proposal may be submitted to Brandi Reeder, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4853; email: brandi.reeder@tpwd.state.tx.us.

5. Statutory Authority

         The amendments are proposed under Parks and Wildlife Code, §76.301, which authorizes the commission to regulate the taking, possession, purchase, and sale of oysters.

         The proposed amendments affect Parks and Wildlife Code, Chapter 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) Approved area — A molluscan shellfish growing area determined to be acceptable for harvesting of molluscan shellfish for direct marketing according to the National Shellfish Sanitation Program (NSSP).

                 (2) Barrel of oysters — As defined in Parks and Wildlife Code, §76.001, a barrel of oysters is three boxes of oysters in the shell or two gallons of shucked oysters without shells. The dimensions of a box are ten inches by 20 inches by 13 1/2 inches. In filling a box for measurement the oysters may not be piled more than 2 1/2 inches above the height of the box at the center.

                 (3) Conditionally approved area — The classification of a shellfish growing area determined by the Texas Department of State Health Services (TDSHS) to meet approved area criteria for a predictable period. The period is conditional upon established performance standards specified in a management plan. A conditionally approved area is a restricted area when the area does not meet the approved growing area criteria.

                 (4) Commission — Refers to the nine member Texas Parks and Wildlife Department Commission.

                 (5) Culling—The process of separating undersized oysters from oysters that are lawful to possess.

                 (6)[(5)] Department — Refers to the Texas Parks and Wildlife Department.

                 (7)[(6)] Natural oyster bed (reef) — As defined in Parks and Wildlife Code, §76.051, a natural oyster bed is an area where at least five barrels of oysters are found within 2,500 square feet of any position on a reef or bed.

                 (8)[(7)] Open season — A period during which it is lawful to take oysters.

                 (9)[(8)] Oyster — That species of molluscan shellfish identified as the Eastern oyster, Crassostrea virginica and its subspecies. No other species of molluscan shellfish are included within this proclamation.

                 (10)[(9)] Possess — The act of having in possession or control, keeping, detaining, restraining, or holding as owner, or as an agent, bailee, or custodian of another.

                 (11)[(10)] Private oyster lease — Those state water bottoms leased from the state for the purpose of producing oysters to individuals or corporations incorporated under the laws of this state.

                 (12)[(11)] Prohibited area — The classification of a shellfish growing area determined by the TDSHS to be unacceptable for the transplanting, gathering for depuration, or harvesting of shellfish. The only shellfish removal permitted from a prohibited area is for the purpose of depletion, as defined in the Control of Harvesting Section of Part 1 of the NSSP.

                 (13)[(12)] Public oyster bed (reef) — As defined in Parks and Wildlife Code, §76.002, all natural oyster beds (reefs) are public. All oyster beds not designated as private are public.

                 (14)[(13)] Restricted area — The classification of a shellfish growing area determined by the TDSHS to be unacceptable for harvesting of shellfish for direct marketing, but which is acceptable for transplanting or gathering for depuration. A restricted area may be closed for transplanting or gathering for depuration when the Seafood Safety Division determines that the area does not meet the restricted area criteria established in the NSSP.

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

                 (16)[(15)] Harvester/Shell Recovery Tag — An identifying marker that must be affixed to the outside of each sack of oysters at the time or harvest, in the location of harvest, contain information required by the Department of State Health Services under the National Shellfish Sanitation Program, and remain affixed during transportation of the oysters to a dealer.

                 (17)[(16)] Director — The executive director of the department.

         §58.21. Taking or Attempting to Take Oysters from Public Oyster Beds: General Rules.

                 (a) Seasons and Times.

                         (1) The open season extends from November 1 of one year through April 30 of the following year.

                         (2) Legal oystering hours — sunrise to 3:30 p.m.

                 (b) Size Limits and Possession of Undersized Oysters.

                         (1) Size limit — Legal oysters must be three inches or larger as measured along the greatest length of the shell.

                          (2) Oysters which are between 3/4 inch and three inches in length must be returned to the reef at the time of harvest.

                         (3) Unculled oysters must not be sacked and must [shall]be kept separate from culled oysters at all times.

                         (4) It is unlawful for any person to take or possess a cargo of oysters more than 15% of which are between 3/4 inch and three inches measured from beak to bill or along an imaginary line through the long axis of the shell.

                 (c) Area Closures. There is no open public season for oysters from areas declared to be restricted or prohibited by the Department of State Health Services or areas closed by the commission.

                         (1) The director may close an area to the taking of oysters upon finding that the area is being overworked or damaged or the area is to be reseeded or restocked, and may re-open the areas as provided in Parks and Wildlife Code, §76.115.

                         (2) An order to close an area shall state the criteria used by the director to determine that the closure is warranted.

                         (3) The department shall consult with members of the oyster industry regarding the management of oyster beds in the state.

                         (4) For the purposes of this section an area will include those designated by the Department of State Health Services as "Approved" and "Conditionally Approved" or other areas based on evaluation by the department.

                         (5) No person may harvest oysters in an area closed by order of the commission or the executive director.

         §58.22. Commercial Fishing.

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

                 (b) Gear Restrictions. During the open public season, it is unlawful while taking or attempting to take oysters for pay or the purpose of sale, barter, or exchange or any other commercial purpose to:

                         (1) use more than one dredge;

                         (2) use a dredge which exceeds 48 inches in width and a two-barrel capacity;

                         (3) have on board more than one dredge, unless spare dredges are secured, to or on the wheelhouse, or to the deck in such a manner as to not be readily accessible for use;

                         (4) have on board more than one winch chain, cable, or rope unless spare chains, cables or ropes are secured below deck; or

(5) have on board more than one lifting block unless spare blocks are secured below deck.

                 (c) Seasons and Times.

                         (1) The open season extends from November 1 of one year through April 30 of the following year.

                         (2) Legal oystering hours — sunrise to 3:30 p.m.

                 (d) Possession Limits. It is unlawful to take in one day, for pay or the purpose of sale, barter, or exchange, or any other commercial purpose, or to have on board any licensed commercial oyster boat more than:

                         (1) 50 sacks of culled oysters of legal size; or

                         (2) the volumetric equivalent of 6 sacks of unculled oysters while on the reef.

                 (e) Harvester/Shell Recovery Tag. A person who harvests oysters from Texas waters for commercial purposes shall, immediately upon harvest, attach a properly executed harvester/shell recovery tag to the outside of the sack in which the oysters are placed.

                         (1) A Harvester/Shell Recovery Tag is properly executed when all required information has been entered on the tag.

                         (2) The tag must be placed on the outside of the sack immediately upon filling, prior to unloading, and remain until the sack is empty or retagged and thereafter kept on file for 90 days.

                         (3) The appropriate harvester/shell recovery tag (green or white) must be affixed to the sack regardless of the season or whether the requirements of 25 TAC §241.57 (relating to Molluscan Shellfish Harvesting and Handling) apply.

                 (f) Reporting Requirements. A dealer who purchases or receives oysters directly from any person other than a licensed dealer must file a report with the department each month as prescribed under Parks and Wildlife Code, §66.019(c).

         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.

         Issued in Austin, Texas on