TITLE 31. NATURAL RESOURCES AND CONSERVATION

PART 2. TEXAS PARKS AND WILDLIFE DEPARTMENT

CHAPTER 53. FINANCE

SUBCHAPTER A. FEES

DIVISION 1. LICENSE, PERMIT, AND BOAT AND MOTOR FEES

31 TAC §53.15

The Texas Parks and Wildlife Commission in a duly noticed meeting on November 3, 2016, adopted an amendment to §53.15, concerning Miscellaneous Fisheries and Wildlife Licenses and Permits, without changes to the proposed text as published in the September 30, 2016, issue of the Texas Register (41 TexReg 7681).

The amendment eliminates references to fees for certificates of location (oyster lease rentals). In another rulemaking published elsewhere in this issue of the Texas Register, the department adopts rules intended to address deleterious environmental conditions and negative impacts of harvest on oyster populations and habitat. The cumulative impacts of these recent events (hurricanes, drought, etc.) have contributed to the declining trends in oyster resources in Texas. The toll of these events and their impacts make it necessary for the department to take action to protect and restore oysters and oyster habitat, which include a fee increase for areas that the department has issued certificates of location for private oyster beds. That fee increase is addressed in the notice of adoption for amendments to 31 TAC §58.30, published elsewhere in this issue. Because the fees for certificates of location are being addressed in §58.30, it is no longer necessary to refer to them in Chapter 53; thus, the amendment removes them.

The department received no comments concerning the rule as proposed.

The amendment is adopted under Parks and Wildlife Code, §§76.017, 76.018, and 76.020 which, respectively, authorize the commission to establish the annual rental fee for the areas established under the certificate of location, to determine oyster location renewal procedures, and to require the recovery of oyster shell or other suitable cultch material to maintain or enhance public oyster reefs.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 29, 2016.

TRD-201606757

Ann Bright

General Counsel

Texas Parks and Wildlife Department

Effective date: January 18, 2017

Proposal publication date: September 30, 2016

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


CHAPTER 58. OYSTERS, SHRIMP, AND FINFISH

SUBCHAPTER A. STATEWIDE OYSTER FISHERY PROCLAMATION

31 TAC §§58.10, 58.11, 58.30, 58.40, 58.50, 58.60

1. Introduction.

The Texas Parks and Wildlife Commission in a duly noticed meeting on November 3, 2016 adopted amendments to §§58.10, 58.11, 58.30, 58.40, 58.50, and 58.60, concerning the Statewide Oyster Fishery Proclamation. Sections 58.11 and 58.30 are adopted with changes to the proposed text as published in the September 30, 2016, issue of the Texas Register (41 TexReg 7683). Sections 58.10, 58.40, 58.50, and 58.60 are adopted without changes to the proposed text and will not be republished.

The change to §58.30 eliminates proposed subsection (b) (concerning Active Use Criteria) and reduces the proposed rental fee as published in subsection (e)(5), from $60 per acre to $20 per acre.

The change to §58.11 eliminates the definition of "cultch." With the elimination of the Active Use Criteria from proposed §58.30, a definition of "cultch" is no longer necessary.

2. Justification for the Rules.

The amendments are intended, collectively, to maximize oyster production and protect public health by renewing areas under certificates of location to facilitate the transplant of oysters from restricted areas (areas containing high levels of bacteria) to approved areas to depurate. Oysters feed by filtering large volumes of water. In contaminated waters, this can result in the concentration of harmful toxins and pathogens in the oysters. Relocating oysters to areas free of environmental contamination allows the oysters to purge toxins and pathogens from their systems, a process known as depuration. After the depuration process, which takes approximately 14 days, the oysters will meet consumption standards established by the Texas Department of State Health Services (TDSHS).

To facilitate the transplant and depuration process, Parks and Wildlife Code, Chapter 76 authorizes the department to designate an oyster bed onto which contaminated oysters are transplanted as a private oyster bed by issuing a certificate of location. A certificate of location (sometimes referred to as a "lease") gives the holder of the certificate of location the right to transplant oysters from restricted areas to the designated approved area (the area covered by the certificate of location) to allow for the depuration of the transplanted oysters. As provided in Parks and Wildlife Code, §§76.061-76.040, the transplant of oysters from restricted areas to approved areas can only take place under a transplant permit issued by the department. These transplant permits are issued at no charge to certificate of location holders based on the need to transplant oysters. There are currently 43 certificates of location totaling 2,322 acres, all located in Galveston Bay. Unless renewed, current certificates of location will expire on February 28, 2017.

Parks and Wildlife Code, Chapter 76 provides for the regulation of oysters by the department and includes provisions regarding certificates of location. Parks and Wildlife Code, §76.006, provides that any citizen of the United States or domestic corporation may file a written application with the department for a certificate authorizing the applicant to plant oysters and make a private oyster bed in the public water of the state. Parks and Wildlife Code, §76.007, provides that a certificate of location cannot be issued for more than 100 acres. Similarly, a person may not own, lease, or control more than 300 acres of land covered by water under a certificate of location. Parks and Wildlife Code, §76.017, provides that the fee for a certificate of location is $6 per acre per year, but authorizes the commission to set a higher fee. The fee for a certificate of location is currently $6.00 per acre per year. Under Parks and Wildlife Code, §76.018, the term for a certificate of location is 15 years. Current certificates of location will expire on February 28, 2017.

The amendments provide for the renewal of certificates of location for an additional 15-year period. The amendments also increase fees for acreage under a certificate of location from $6 per acre per year to $20 per acre per year and provide for the adjustment of those fees at three-year intervals. In addition, the amendments standardize terminology and remove a redundant reporting requirement for harvest information.

Renewal of certificates of location provides economic value to the state of Texas and the oyster industry by providing a means for oysters to be harvested and sold for human consumption following depuration. An additional benefit is accrued because transplant of oysters reduces the likelihood that polluted oysters will be unlawfully harvested in areas where harvest is restricted by the Department of State Health Services. There is a continuing need for depuration of polluted oysters to protect human health and safety.

The amendments remove the words "lease," "leases," "private oyster lease," "private oyster leases," "leaseholder," and "leaseholders" wherever they occur in §§58.10, 58.11, 58.30, 58.40, 58.50, and 58.60, and where appropriate, replace those terms with more accurate descriptors implicating the certificate of location. The nonsubstantive change is intended to eliminate confusion and ambiguity. Additionally, the amendments remove outdated reference to a shellfish program at the Department of State Health Services and simply replace it with a reference to that agency, as well as replacing references to the entire name of that agency with an acronym.

The amendment to §58.11, concerning Definitions, consists of several components.

The proposed amendment to §58.11 adds new paragraph (3) to define the term "Certificate of Location" as "a department-issued certificate authorizing a person or domestic corporation to plant oysters in a specifically delineated area of the public water of the state for the purpose of establishing a private oyster bed." Because the amendments replace references to "lease," "leaseholders," etc., and replace them with references to "certificate of location," which is the technical term used in Parks and Wildlife Code, Chapter 76, a definition of that term is necessary.

The amendment to §58.11 alters current paragraph (4) (redesignated as (5)) to remove an unnecessary reference to the composition of the Texas Parks and Wildlife Commission.

The amendment to §58.11 alters current paragraph (6) (redesignated as (7), to remove a redundancy. The phrase "refers to" is unnecessary.

The amendment to §58.11 redesignates current paragraphs (16) (Harvester Shell/Recovery Tag) and (17) (Director) as new paragraphs (9) and (8), respectively, in order to preserve the alphabetical order of the terms in the section.

The amendment to §58.11 adds new paragraph (10) to define "location" as "the acreage of public water for which a certificate of location has been issued." As mentioned previously in this preamble, the amendments, collectively, eliminate references to the term "lease" and replace them with references to the term "certificate of location." Thus, terms such as "location" are invested with a specialized meaning and must be defined for purposes of compliance, administration, and enforcement.

The amendment to §58.11 adds new paragraph (11) to define "location term" as "the 15-year term of a certificate of location," which is necessary to provide a convenient term for ease of reference.

The amendment to §58.11 adds new paragraph (12) to define the term "locator" as "a person or domestic corporation to whom or which a certificate of location has been issued," which is necessary to provide a convenient term for ease of reference.

The amendment to §58.11 eliminates the definition of "private oyster lease" in current paragraph (10) because, as discussed elsewhere in this preamble, references to "lease" are eliminated throughout the subchapter.

The amendment to §58.11 alters current paragraph (14) (Restricted area, redesignated as new paragraph (19)) to remove an outdated reference to a shellfish program at the Department of State Health Services and simply replace it with a reference to that agency.

The amendment to §58.11 adds new paragraph (21) to define "under location" as "an area subject to a certificate of location," which, for reasons previously discussed in this preamble, is necessary to create a convenient reference.

The amendment to §58.30, concerning Private Oyster Leases (renamed Certificate of Location, as explained above), increases the annual acreage-based fee for certificates of location, from the current $6 per acre to $20 per acre, and provides for proportional adjustment of the fee every three years, based on changes in the Consumer Price Index, updates to the administrative cost-recovery analysis, or both. The initial proposed fee of $60 per acre per year was based on a calculation of the costs incurred by the department, including costs incurred by law enforcement, to administer the certificate of location program. If law enforcement costs are excluded from this calculation, the estimated cost of administering the program, divided among the acreage under location, results in a fee of $20 per acre per year which is the fee approved by the commission.

The amendment to §58.50, concerning Oyster Harvest Permits, specifies that monthly harvest report forms required by the current rules to be submitted to the department’s commercial landings program by the 10th of the month following the month in which harvest occurred. The current rule specifies that the reports be filed with the department by the 15th of the month following the month in which harvest occurred; however, other department rules require all commercial landings of aquatic marine life to be submitted by the 10th of each month, which includes oysters. The removal of the redundant reporting requirement will result in greater administrative efficiency for both the department and the regulated community.

4. Summary of Public Comment.

The department received 11 comments opposing adoption of the proposed amendments. The department notes that because many individual comments contained multiple statements, and multiple individuals made similar comments, the number of responses does not equal the total number of comments.

Eleven commenters opposed adoption and stated that the proposed annual rental fee of $60 per acre was too high and would result in location holders being unable to compete with markets in other states. The department agrees with the comments and has made changes accordingly, adopting a rental fee of $20 per acre.

Ten commenters opposed adoption and recommended that the department implement a vessel transplant fee and/or increase the shell recovery fee currently in effect in lieu of raising the per-acre fee and implementing the proposed active use criteria. The department disagrees with the comments and responds that both of these recommendations are beyond the scope of the current rulemaking and would require separate rulemaking. However, as noted above, a lower annual rental fee was adopted. No changes were made as a result of the comments.

Seven commenters opposed adoption and stated that the active use criteria would be cost prohibitive to their businesses and that they are already depositing cultch onto their locations. The department agrees with the comments and has made changes accordingly.

One commenter opposed adoption and stated that the rules should retain the term "lease" because a certificate of location identifies submerged public land under public waters. Another commenter opposed adoption and stated that the term "oyster lease" should not be eliminated because the term has been around forever and statutory law refers to "private oyster leases on State water bottoms." The department disagrees with the comment and responds that Parks and Wildlife Code, Chapter 76, uses both "certificate of location" and "lease." "Certificate of location" is the more accurate term, and is used in the adopted rules to reduce confusion. No changes were made as a result of the comment.

One commenter opposed adoption and stated that the rules were an attempt by the department to establish authority over land the department doesn’t own. The department disagrees with the comment and responds that no provision of the rules as adopted affects the status of any submerged land, except as provided in Parks and Wildlife Code, Chapter 76. No changes were made as a result of the comment.

No groups or associations commented in support or opposition to the rules as proposed.

5. Statutory Authority.

The amendments are adopted under Parks and Wildlife Code, §§76.017, 76.018, and 76.020 which, respectively, authorize the commission to establish the annual rental fee for the areas established under the certificate of location, to determine oyster location renewal procedures, and to require the recovery of oyster shell or other suitable cultch material to maintain or enhance public oyster reefs.

§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) Certificate of Location--A department-issued certificate authorizing a person or domestic corporation to plant oysters in a specifically delineated area of the public water of the state for the purpose of establishing a private oyster bed.

(4) 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.

(5) Commission--The Texas Parks and Wildlife Department Commission.

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

(7) Department--The Texas Parks and Wildlife Department.

(8) Director--The executive director of the department.

(9) Harvester/Shell Recovery Tag--An identifying marker that must be affixed to the outside of each sack of oysters at the time of harvest, in the location of harvest, containing information required by the TDSHS under the NSSP, and remain affixed during transportation of the oysters to a dealer.

(10) Location--The acreage of public water for which a certificate of location has been issued.

(11) Location term--The 15-year term of a certificate of location.

(12) Locator--A person or domestic corporation to whom or which a certificate of location has been issued.

(13) 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.

(14) Open season--A period during which it is lawful to take oysters.

(15) 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.

(16) 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.

(17) 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.

(18) 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.

(19) 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 TDSHS determines that the area does not meet the restricted area criteria established in the NSSP.

(20) Sack of oysters--A volume of oysters, including dead oyster shell that weighs no more than 110 pounds including the sack.

(21) Under location-- An area subject to a certificate of location.

§58.30.Certificate of Location.

(a) General Rules.

(1) No certificate of location will be issued for:

(A) a natural oyster bed as prescribed in Parks and Wildlife Code, §76.001;

(B) an area that has been fished as a public reef within eight years of an application of a certificate of location as prescribed in Parks and Wildlife Code, §76.003;

(C) a bay shore area within 100 yards of the shore as prescribed in Parks and Wildlife Code, §76.004;

(D) an area subject to an exclusive riparian right as provided under Parks and Wildlife Code, §76.004 and §76.005;

(E) an area already under location; or

(F) an area within 1,000 feet of a location not owned or controlled by the applicant.

(2) The term of a certificate of location is 15 years as prescribed in Parks and Wildlife Code, §76.018.

(3) In accordance with the Oyster Fishery Management Plan the Department may accept applications for certificates of location.

(b) Application For Certificate of Location.

(1) If applications for certificates of location are being accepted by the department, they shall be accompanied by a nonrefundable application fee of $200.

(2) The applicant shall mark the proposed location site or sites with temporary poles and/or buoys in such a manner that the outline of the site or sites can be clearly determined.

(3) Each application shall contain:

(A) applicant's name and address;

(B) affirmation that applicant is a United States citizen as prescribed in Parks and Wildlife Code, §76.006;

(C) a description of the acreage to be authorized by the certificate of location, including a plat showing approximate size and location in relation to state land tracts; and

(D) signed letters each from the U.S. Army Corps of Engineers, General Land Office, and TDSHS indicating approval for the proposed location site.

(4) An authorized employee(s) of the department shall inspect the proposed location site or sites to determine its location with respect to:

(A) natural oyster reefs;

(B) shoreline;

(C) areas restricted or prohibited by the TSDHS;

(D) spoil disposal areas;

(E) other areas subject to a certificate of location;

(F) riparian rights;

(G) presence of exposed shell; and

(H) presence of live oysters.

(c) Public Hearing on Application.

(1) After having determined the proposed location site meets location and exposed shell requirements, the department shall:

(A) hold a public hearing to determine if the site has been publicly fished within eight years of the application for a certificate of location;

(B) publish a notification of the date, time, and purpose of the public hearing at least once in a newspaper of general circulation in the county closest to the proposed location;

(C) publish the notification between ten and 20 days prior to the public hearing;

(D) make available to the public information about the proposed application for a certificate of location ten days prior to the date of the hearing; and

(E) present the investigation report at the public hearing.

(2) Persons objecting to the proposed certificate of location must submit a sworn affidavit or testify under oath at the public hearing stating reasons for the objection.

(3) The department shall review findings of the public hearing and submit recommendations to the Coastal Fisheries Division Director for approval.

(4) The applicant will be notified within ten days after the hearing of either approval or denial of the application for a certificate of location.

(5) The application approved by the department will be forwarded to the Coastal Coordination Council for final approval.

(d) Approved Procedures for Applicant.

(1) Applicant shall be responsible for having a final survey of the approved location conducted by a registered surveyor who will furnish the department with survey notes and a plat showing:

(A) the location in relation to state land tract boundaries; and

(B) latitude and longitude coordinates for all location corner markers.

(2) The applicant shall mark the boundaries of the location with buoys or other permanent markers at the time of the final survey and maintain buoys or other permanent markers until termination of the certificate of location. Supplemental markers may be required along the boundaries if one corner marker is not clearly visible from another corner marker.

(A) All marker buoys or other permanent markers must be:

(i) at least six inches in diameter;

(ii) at least three feet out of the water at mean high tide;

(iii) of a shape and color that is visible for at least 1/2 mile under normal weather conditions;

(iv) marked with the certificate of location number (Buoys or other permanent markers common to two or more locations must be marked with all numbers of the certificate of location);

(v) marked with at least two-inch high letters in plain Arabic block letters in a location where it will not be obscured by water or marine growth; and

(vi) marked with all required U.S. Coast Guard markings.

(B) Buoys must be anchored by:

(i) A screw anchor with a minimum one-inch galvanized sucker rod and 12-inch head inserted ten feet into the bottom; or

(ii) two anchors per buoy and each anchor having a minimum weight of 300 pounds.

(C) If replacement of buoys or other permanent markers is necessary, original latitude and longitude coordinates of the final survey must be used to relocate markers.

(3) An authorized employee(s) of the department shall inspect and verify latitude and longitude coordinates.

(4) The department shall return approved application for appropriate registration by applicant with the county clerk in the county of location.

(5) Rental Fee.

(A) The holder of a certificate of location shall pay to the department ($20) per acre of location per year. The fee established by this subparagraph shall be recalculated at three-year intervals beginning on the effective date of this section and proportionally adjusted to any change in the Consumer Price Index, the department’s cost-recovery needs, or both.

(B) Rental fees are due annually by March 1 as prescribed in Parks and Wildlife Code, §76.017.

(C) The holder of a certificate shall pay the department a late penalty fee equal to 10 percent of the amount due for any rental, transfer, sale, or renewal fee that is not paid when due as prescribed in Parks and Wildlife Code, §76.017.

(D) Failure to pay any rental, transfer, sale, renewal, or late penalty fee within 90 days of the due date terminates the (certification of location) as prescribed in Parks and Wildlife Code, §76.017.

(6) Renewal of Certificate of Location.

(A) As prescribed in Parks and Wildlife Code, §76.018, at the end of a location term the department shall determine the need for continuation of the certificate of location based on:

(i) the need for depuration of oysters from non-approved areas; and

(ii) other considerations as specified in §58.12 of this title (relating to Oyster Fishery Management Plan).

(B) If the certificate of location is to be renewed under the conditions of the department as prescribed in Parks and Wildlife Code, §76.018, the holder of the certificate of location shall be offered the first right of refusal for renewal as prescribed in Parks and Wildlife Code, §76.018.

(C) If there is any alteration to the boundaries of a location, the holder of a certificate of location shall be responsible for having the location resurveyed by a registered surveyor who will provide the department with survey notes and a plat of the location showing:

(i) the location in relation to state land tract boundaries; and

(ii) latitude and longitude coordinates for all corner markers.

(D) The survey will be conducted and provided to the department within one year of renewal of the certificate of location;

(7) Auction Procedures.

(A) The department may auction a location that is not renewed as prescribed by Parks and Wildlife Code, §76.018.

(B) The department may determine a minimum acceptable bid based on:

(i) bid offers from previous auctions;

(ii) established open market prices; and

(iii) other relevant factors.

(C) The department may refuse all bids below the minimum acceptable bid.

(D) The department must follow prescribed bid guidelines for state agencies.

(8) Transfers or Sale as prescribed in Parks and Wildlife Code, §76.019.

(A) A transfer or sale of a location does not change location terms.

(B) A payment of $200 will be due upon transfer or sale of a location.

(C) A transfer fee will not be required when a location is inherited.

(D) A completed transfer form prescribed by the department will be required at time of transfer.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 29, 2016.

TRD-201606758

Ann Bright

General Counsel

Texas Parks and Wildlife Department

Effective date: January 18, 2017

Proposal publication date: September 30, 2016

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