TITLE 31.NATURAL RESOURCES AND CONSERVATION

Part 2. TEXAS PARKS AND WILDLIFE DEPARTMENT

Chapter 57. FISHERIES

The Texas Parks and Wildlife Commission adopts the repeal of §57.383, concerning Permit Fee, amendments to §§57.111, 57.113, 57.114, 57.117, 57.134, and 57.135, concerning Harmful or Potentially Harmful Exotic Fish, Shellfish and Aquatic Plants; §57.156, concerning Mussels and Clams; §57.500, concerning Marking of Vehicles; §57.921, concerning Scientific Areas; and §§57.930, 57.932 and 57.934, concerning Aquatic Vegetation Management. Section 57.113 is adopted with changes to the proposed text as published in the February 25, 2005, issue of the Texas Register (30 TexReg 1023). The repeal of §57.383 and the amendments to §§57.111, 57.114, 57.117, 57.134, 57.135, 57.156, 57.500, 57.921, 57.930, 57.932 and 57.934 are adopted without change and will not be republished.

The change to §57.113, concerning Exceptions, adds subsection (m) to clarify that any person may possess water spinach solely for the purpose of personal consumption.

The repeal and amendments are necessary as a result of the department's review process under the provisions of Government Code, §2001.039, which requires each state agency to perform a review of all regulations not less than every four years and to either readopt, amend, or repeal each rule as necessary and appropriate. As a result of the review process, which included surveys and public hearings, the department determined that modifications should be made to simplify regulations, improve the efficiency and effectiveness of programs, and help users better understand the intent in the application of these programs. As a result of the review, the department has determined that rulemaking is necessary to correct outdated references, naming conventions, citations, and terminology, as well as to make existing provisions clearer and more user friendly.

In general, the amendments eliminate obsolete department program references and add clarity to activities that have evolved since the last review of the chapter.

The repeal of §57.383, concerning Permit Fee, is necessary because a previous rulemaking consolidated all provisions that establish fees in Chapter 53, concerning Finance.

The amendment to §57.111, concerning Definitions, amends the definition of penaeid shrimp family members by adding the genera Fenneropenaeus, Marsupenaeus, and Melicertus; and amends the definition of oyster family members by adding all species of Ostreidae except Crassostrea virginica and Ostrea equestris, and removing Crassostrea gigas because of changing naming conventions, and the addition of exotic species that are not currently being used in Texas mariculture but known to produce problems in other states. No impact is expected to Texas mariculture from this change. Also, reference to the Texas Natural Resource Conservation Commission is being changed to reflect the current name of that agency, the Texas Commission on Environmental Quality.

The amendment to §57.113, concerning Exceptions, clarifies that the rules are not intended to be applied to individually shucked oysters of exotic species. The amendment also adds water spinach the list of species that may be grown under permit. Water spinach (Ipomoea aquatica) was originally included on the list of harmful or potentially harmful species because of its rapid growth rate and consequent potential for invasiveness. However, the department recently became aware that it is a very highly prized food item in some communities and has been cultivated in Texas for at least 15 years without incident. Investigations indicated it has not escaped cultivation. The amendment also removes language authorizing the department to stock planktivorous fish. The amendment is necessary because the program has been completed. Similarly, the amendment eliminates provisions that grandfather certain exotic species permits, which is necessary because the permits no longer exist.

The amendment to §57.114, concerning Health Certification of Exotic Shellfish, clarifies that inspections are required before the harvesting of shellfish and any discharge of water because the two activities often occur at the same time. With respect to facility inspections, the amendment allows for inspections of portions of a facility when inspection of every pond in a facility is not necessary. The amendment also lengthens the mandatory notification period from 72 hours to 14 days. The change is necessary to better facilitate and better coordinate inspections for all concerned parties. The requirements for third-party samples of ponds submitted for analysis are also changed from 10 days to 14 days in order to maintain consistency with sampling protocols.

The amendment to §57.117, concerning Exotic Species Permit: Fee and Application Requirements, removes the provisions that establish fees. The amendment is necessary because an earlier rulemaking consolidated all provisions establishing fees in Chapter 53, concerning Finance. Also, outdated references to the precursor agency of the Texas Commission on Environmental Quality are updated.

The amendments to §57.134, concerning Wastewater Discharge Authority, and §57.135, concerning Memorandum of Understanding between the Texas Parks and Wildlife Department, the Texas Natural Resource Conservation Commission and the Texas Department of Agriculture, also update references to the precursor agency of the Texas Commission on Environmental Quality.

The amendment to §57.156, concerning Definitions, adds the definitions of ‘Prohibited Area’ and ‘Restricted Area.’ The new definitions are restated definitions taken from Texas Department of State Health Services rules relating to oyster harvest. The amendment is necessary for the convenience of the public, as these definitions are the subject of frequent questions. The addition of the definitions to the department's rules should simplify searches.

The amendment to §57.500, concerning Marking of Vehicles, is amended to more accurately reflect the intent of Parks and Wildlife Code, §66.014, which provides the authority for rulemaking in this area. The department wishes to ensure that all vehicles used to transport aquatic products for commercial purposes be marked, and not just those that transport "fish," as stated in the current rule. The amendment is necessary to assure that the department is able to enforce statutes and regulations concerning the transport of aquatic products. The amendment also eliminates a reference to ‘arabic letters,’ which obviously is not the intent of the rule, and clarifies that legend, "FISH" be printed in capital letters.

The amendment to §57.921, concerning Redfish Bay State Scientific Areas, extends the termination date for the Redfish Bay Scientific Area from June 30, 2005 to June 30, 2010 and more accurately defines the area intended to be included in this area. The amendment is necessary because the department has determined that additional time is needed to study the impacts of propeller scarring on seagrass communities, and because technological advances have made it possible to more accurately delineate the boundaries of the scientific area.

The amendments to §57.930, concerning Definitions, §57.932, concerning State Aquatic Vegetation Plan, and §57.934, concerning Local Aquatic Vegetation Plan, update references to the precursor agency of the Texas Commission on Environmental Quality.

The repeal of §57.383 will function by eliminating a superfluous regulation.

The amendment to §57.111 will function by making definitions more precise, by eliminating definitions that are no longer applicable, and by adding definitions for exotic species that are subject to the regulations of the department.

The amendment to §57.113 will function by exempting individually shucked exotic species of oysters from the rules, by allowing water spinach to be grown under permit, and by removing obsolete language.

The amendment to §57.114 will function by requiring inspections prior to any harvesting of shellfish or discharge of water, by allowing inspections of portions of a facility, by lengthening the mandatory notification period, and by allowing third-party pond samples to be submitted up to 14 days prior to the first discharge.

The amendments to §§57.117, 57.134, and 57.135 will function by eliminating obsolete and redundant references.

The amendment to §57.156 will function by adding helpful definitions for the convenience of the public.

The amendment to §57.500 will function by making regulatory language more accurate.

The amendment to §57.921 will function by setting a new termination date for the Redfish Bay Scientific Area and by more accurately defining the boundaries of the area.

The amendments to §§57.930, 57.932, and 57.934 will function by updating references.

The department received no comments concerning adoption of the proposed repeal and amendments.

Subchapter A. HARMFUL OR POTENTIALLY HARMFUL EXOTIC FISH, SHELLFISH AND AQUATIC PLANTS

31 TAC §§57.111, 57.113, 57.114, 57.117, 57.134, 57.135

The amendments are adopted under the authority of Parks and Wildlife Code, Chapter 61, which provides the commission with authority to regulate the periods of time when it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life and the means, methods, and places in which it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life; Chapter 12, which provides authority to investigate pollution liable to impact fish or wildlife, to create a noxious vegetation program, and to regulate fish, shellfish, and aquatic plants; Chapter 66, which provides authority to regulate harmful or potentially harmful exotic fish, shellfish, and aquatic plants, to prescribe identification standards for vehicles transporting aquatic products, and rules governing the introduction of fish, shellfish, and aquatic plants; Chapter 67, which authorizes the commission to establish a fee for permits for the taking, possession, propagation, transportation, sale, importation, or exportation of a nongame species of fish or wildlife; Chapter 76, which provides authority to regulate the taking, possession, purchase, and sale of oysters; and Chapter 78, which provides authority to regulate the taking, possession, purchase and sale of mussels, clams, and crabs.

§57.113.Exceptions.

(a) A person who holds a valid Exotic Species Permit issued by the department may possess, propagate, sell and transport to the permittee's private facilities exotic harmful or potentially harmful fish, shellfish and aquatic plants only as authorized in the permit provided the harmful or potentially harmful exotic species are to be used exclusively:

(1) as experimental organisms in a department approved research program; or

(2) for exhibit in a public aquarium approved for display of harmful or potentially harmful exotic fish, shellfish and aquatic plants.

(b) A person may possess exotic harmful or potentially harmful fish or shellfish, exclusive of grass carp, without a permit, if the intestines of the fish or shellfish have been removed, or in the case of oysters, if the oysters have been shucked or otherwise removed from their shells.

(c) A person may possess grass carp harvested from public waters that have not been permitted for triploid grass carp, without a permit, if the intestines have been removed.

(d) A fish farmer who holds a valid exotic species permit issued by the department may possess, propagate, transport or sell triploid grass carp (Ctenopharyngodon idella), silver carp (Hypophthalmicthys molitrix), triploid black carp (Mylophryngogon piceus, also commonly known as snail carp), bighead carp (Aristichthys/Hypophthalmicthys nobilis), blue tilapia (Tilapia aurea), Mozambique tilapia (Tilapia mossambica), Nile tilapia (Tilapia nilotica), water spinach (Ipomoea aquatica), or hybrids between the three tilapia species, unless otherwise provided by conditions of the permit or these rules.

(e) A fish farmer who holds a valid exotic species permit issued by the department may possess, propagate, transport, or sell Pacific white shrimp (Litopenaeus vannamei) provided the exotic shellfish meet disease free certification requirements listed in §57.114 of this title (relating to Health Certification of Exotic Shellfish) and as provided by conditions of the permit and these rules.

(f) An operator of a wastewater treatment facility in possession of a valid exotic species permit issued by the department may possess and transport permitted exotic species to their facility only for the purpose of wastewater treatment.

(g) A person may possess Mozambique tilapia in a private pond subject to compliance with §57.116(d) of this title (relating to Exotic Species Transport Invoice).

(h) The holder of a valid triploid grass carp permit issued by the department may possess triploid grass carp as provided by conditions of the permit and these rules.

(i) A licensed retail or wholesale fish dealer is not required to have an exotic species permit to purchase or possess:

(1) live individuals of species or hybrids of species listed in subsection (d) of this section held in the place of business, unless the retail or wholesale fish dealer propagates one or more of these species. However, such a dealer may sell or deliver these species to another person only if the intestines or head of the fish are removed; or

(2) Live Pacific white shrimp (Litopenaeus vannamei) held in the place of business if the place of business is not located within the Harmful or Potentially Harmful Exotic Species Exclusion Zone. However, such a dealer may only sell or deliver this species to another person if the shrimp are dead and packaged on ice or frozen.

(j) The department is authorized to stock triploid grass carp into public waters in situations where the department has determined that there is a legitimate need, and when stocking will not affect threatened or endangered species, coastal wetlands, or specific management objectives for other important species.

(k) A fish farmer who holds a valid exotic species permit issued by the department may possess, propagate, transport and sell Pacific blue shrimp (Litopenaeus stylirostris) provided the exotic shellfish are cultured under quarantine conditions in private facilities located outside the harmful or potentially harmful exotic species exclusion zone, and meet disease free certification requirements listed in §57.114 of this title (relating to Health Certification of Exotic Shellfish) and as provided by conditions of the permit and these rules.

(l) An operator of a mechanical plant harvester in possession of a valid exotic species permit issued by the department may remove and dispose of prohibited plant species from public or private waters only by means authorized in the permit.

(m) Any person may possess Water spinach (Ipomoea aquatica) for personal consumption.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 9, 2005.

TRD-200502361

Gene McCarty

Chief of Staff

Texas Parks and Wildlife Department

Effective date: June 29, 2005

Proposal publication date: February 25, 2005

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


Subchapter B. MUSSELS AND CLAMS

31 TAC §57.156

The amendments are adopted under the authority of Parks and Wildlife Code Chapter 61, which provides the commission with authority to regulate the periods of time when it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life and the means, methods, and places in which it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life; and under Chapter 78, which provides authority to regulate the taking, possession, purchase, and sale of mussels, clams, and crabs.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 9, 2005.

TRD-200502360

Gene McCarty

Chief of Staff

Texas Parks and Wildlife Department

Effective date: June 29, 2005

Proposal publication date: February 25, 2005

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


Subchapter E. PERMITS TO SELL NONGAME FISH TAKEN FROM PUBLIC FRESH WATER

31 TAC §57.383

The repeal is adopted under the authority of Parks and Wildlife Code, Chapter 67, which authorizes the commission to establish a fee for permits for the taking, possession, propagation, transportation, sale, importation, or exportation of a nongame species of fish or wildlife.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 9, 2005.

TRD-200502362

Gene McCarty

Chief of Staff

Texas Parks and Wildlife Department

Effective date: June 29, 2005

Proposal publication date: February 25, 2005

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


Subchapter G. MARKING OF VEHICLES

31 TAC §57.500

The amendments are adopted under the authority of Parks and Wildlife Code, Chapter 66, which provides the commission with authority to prescribe requirements for identification of vehicles transporting aquatic products.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 9, 2005.

TRD-200502363

Gene McCarty

Chief of Staff

Texas Parks and Wildlife Department

Effective date: June 29, 2005

Proposal publication date: February 25, 2005

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


Subchapter K. SCIENTIFIC AREAS

31 TAC §57.921

The amendments are adopted under the authority of Parks and Wildlife Code, Chapter 81, which provides the authority to promote and establish a state system of scientific areas for the purposes of education, scientific research, and preservation of flora and fauna of scientific or educational value.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 9, 2005.

TRD-200502364

Gene McCarty

Chief of Staff

Texas Parks and Wildlife Department

Effective date: June 29, 2005

Proposal publication date: February 25, 2005

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


Subchapter L. AQUATIC VEGETATION MANAGEMENT

31 TAC §§57.930, 57.932, 57.934

The amendments are adopted under the authority of Parks and Wildlife Code, Chapter 12, which provides authority to investigate pollution liable to impact fish or wildlife and create a noxious vegetation program, regulate fish, shellfish, and aquatic plants; and Chapter 66, which provides authority to regulate exotic harmful or potentially harmful fish, shellfish, and aquatic plants, identification of vehicles transporting aquatic products, and the introduction of fish, shellfish, and aquatic plants to public waters.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on June 9, 2005.

TRD-200502365

Gene McCarty

Chief of Staff

Texas Parks and Wildlife Department

Effective date: June 29, 2005

Proposal publication date: February 25, 2005

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