Commission Meeting Agenda Item No. 3
Presenter: Dr. Tiffany Hopper
Action
Oyster Advisory Committee
Recommended Adoption of Proposed Rule
January 25, 2024
I. Executive Summary: Staff seeks adoption of a proposed new rule to create the Oyster Advisory Committee (OAC).
II. Discussion: Under Texas Parks and Wildlife Code, Chapter 76, the Texas Legislature has designated Texas Parks and Wildlife Department (TPWD) as the primary regulatory agency for public oyster beds and certificates of location (oyster leases), including the taking, possession, purchase, and sale of oysters. Texas Parks and Wildlife Code section 11.0162 authorizes the Chairman (Chairman) of the Texas Parks and Wildlife Commission (Commission) to appoint committees to advise the Commission on issues under its jurisdiction. Under this authority, the Commission has established several advisory committees to provide TPWD with informed opinions regarding various aspects and dimensions of TPWD’s mission. These advisory committees perform a valuable service for TPWD and the people of Texas.
Texas Government Code, Chapter 2110 requires state agencies to adopt rules regarding each advisory committee. Unless otherwise provided by specific statute, the rules must state the purpose of the committee and describe the way the committee will report to the agency. The rules may also establish the date on which the committee will automatically be abolished, unless the advisory committee has a specific duration established by statute.
The Chairman has determined that it would be beneficial to form an advisory group composed of various members of the public interested in oyster-related matters to assist TPWD in ensuring that regulation of oysters in Texas continues to reflect TPWD’s strong commitment to the long-term health of oyster resources and the additional habitat and ecosystem services they provide. The proposed new rule would create the OAC and provide the statutorily required elements for its existence.
At the Commission Work Session meeting on November 1, 2023, staff was authorized to publish the proposed rule in the Texas Register for public comment. The proposed rule appeared in the December 22, 2023, issue of the Texas Register (48 TexReg 7865). A summary of public comment on the proposed rule will be presented at the meeting.
III. Recommendation: Staff recommends that the Commission adopt the following motion:
“The Texas Parks and Wildlife Commission adopts new 31 Texas Administrative Code §51.673, concerning Oyster Advisory Committee (OAC), as listed in Exhibit A, with changes as necessary to the proposed text as published in the December 22, 2023, issue of the Texas Register (48 TexReg 7865).”
Commission Agenda Item No. 3
Exhibit A
ADVISORY COMMITTEE RULES
OYSTER ADVISORY COMMITTEE
PROPOSAL PREAMBLE
1. Introduction
The Texas Parks and Wildlife Department proposes new 31 TAC §51.673, concerning the Oyster Advisory Committee (OAC).
Parks and Wildlife Code, §11.0162, authorizes the Chairman of the Texas Parks and Wildlife Commission (the Commission) to "appoint committees to advise the commission on issues under its jurisdiction." Under Parks and Wildlife Code, Chapter 76, the legislature has designated TPWD as the primary regulatory agency for public oyster beds and certificates of location (oyster leases), including the taking, possession, purchase, and sale of oysters. Government Code, Chapter 2110, requires that rules be adopted regarding each state agency advisory committee. Unless otherwise provided by specific statute, the rules must state the purpose of the committee and describe the way the committee will report to the agency. The rules may also establish the date on which the committee will automatically be abolished, unless the advisory committee has a specific duration established by statute. Under this authority, the Commission has established a number of advisory committees to provide the department with informed opinion regarding various aspects and dimensions of the department’s mission. These advisory committees perform a valuable service for the department and the people of Texas.
The department is the primary state agency responsible for the regulation and management of public and private oyster beds, including the taking, possession, purchase, and sale of oysters. Staff have determined that the creation of an advisory board for matters involving oysters would be helpful in assisting the department and the commission in determining and executing appropriate strategies to maximize the long-term health of oyster resources and the additional habitat and ecosystem services they provide.
2. Fiscal Note.
Dr. Tiffany Hopper, Science and Policy Branch Chief, Coastal Fisheries Division, has determined that for each of the first five years that the rule as proposed is in effect, there will be no fiscal implications to state or local government as a result of administering the rule. There will be no impact on persons required to comply with the rule as proposed.
3. Public Benefit/Cost Note.
Dr. Hopper also has determined that for each of the first five years that the rule as proposed is in effect:
(A) The public benefit anticipated as a result of enforcing or administering the proposed rule will be the enhancement of department and commission decision-making with respect to regulation of oysters.
(B) Under 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. 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. The department has determined that the proposed rule will not result in any direct economic costs to any small businesses, micro-businesses, or rural community; therefore, the department has a determined that neither the economic impact statement nor the regulatory flexibility analysis described in Government Code, Chapter 2006, is required.
(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.
(F) In compliance with the requirements of Government Code, §2001.0221, the department has prepared the following Government Growth Impact Statement (GGIS). The rules as proposed, if adopted, will:
(1) neither create nor eliminate a government program;
(2) not result in an increase or decrease in the number of full-time equivalent employee needs;
(3) not result in a need for additional General Revenue funding;
(4) not affect the amount of a fee;
(5) create a new regulation (to provide for the new advisory group);
(6) not expand an existing regulation;
(7) neither increase nor decrease the number of individuals subject to regulation; and
(8) not positively or adversely affect the state’s economy.
4. Request for Public Comment.
Comments on the proposed rule may be submitted to Michaela Cowan, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-8575; email: cfish@tpwd.texas.gov or via the department website at www.tpwd.texas.gov.
5. Statutory Authority.
The amendment is proposed under Government Code, Chapter 2110, which requires the adoption of rules regarding state agency advisory committees.
The proposed amendment affects Government Code, Chapter 2110.
6. Rule Text.
§51.673. Oyster Advisory Committee (OAC).
(a) The OAC is created to advise the department on all matters pertaining to oysters in Texas.
(b) The OAC shall be composed of up to 24 members of the public.
(c) The OAC shall comply with the requirements of §51.601 of this title (relating to General Requirements).
(d) The OAC shall expire on July 1, 2026.
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