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that rulemaking is necessary to correct outdated references, naming conventions,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
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
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
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 B. MUSSELS AND CLAMS
Subchapter E. PERMITS TO SELL NONGAME FISH TAKEN FROM PUBLIC FRESH WATER
Subchapter G. MARKING OF VEHICLES
Subchapter K. SCIENTIFIC AREAS