Part 2. TEXAS PARKS AND WILDLIFE DEPARTMENT
The Texas Parks and Wildlife Department (the department) adopts the repeal of §§51.161 - 51.163, 51.165, and 51.166, and new §§51.161 - 51.167, regarding nonprofit organizations. Sections 51.163 and 51.167 are adopted with changes to the proposed text as published in the March 2, 2007, issue of the Texas Register (32 TexReg 1021). Sections 51.161, 51.162, and 51.164 - 51.166 are adopted without changes and will not be republished.
The adopted change to §51.163 adds the word "written" to subsection (a)(5) to clarify that the use of department facilities by a nonprofit partner should be pursuant to a written agreement. The adopted change to §51.163 adds a requirement in subsection (b)(7) that, if a department property, facility, or program has more than one closely related nonprofit partner, all such closely related nonprofit partners associated with the property, facility, or program should be notified of meetings of the closely related nonprofit partner and allowed to send a representative to the meetings. The adopted change to §51.167 adds a new subsection (c) to provide that if, a closely related nonprofit partner is required to adopt a policy or procedure, the department may develop a model policy or procedure. As a result of this change, proposed subsection §51.167(c) is now designated as subsection (d) and proposed subsection (d) is now subsection (e).
The adopted repeals and new sections are necessary to implement the requirements of Parks and Wildlife Code, Chapter 11, Subchapter J, §§11.201 - 11.207 and Government Code, §2255.001(a).
The Parks and Wildlife Code authorizes the department to work with nonprofit organizations to carry out the mission of the department. Parks and Wildlife Code, §11.202, requires the Parks and Wildlife Commission (the commission) to adopt rules to "establish the best practices for nonprofit partners." Parks and Wildlife Code, §11.203, requires the commission to adopt rules regarding "state standards and safeguards for accounting for state assets held by the nonprofit partner." Parks and Wildlife Code, §11.205, authorizes the commission to designate an official nonprofit partner dedicated to meeting department goals. Parks and Wildlife Code, §11.205(f), requires the commission to establish by rule guidelines for the official nonprofit partner’s solicitation and acceptance of sponsorships and the best practices of the official nonprofit partner.
Similarly, Government Code, Chapter 2255, requires a state agency to adopt rules regarding the relationship between donors and the agency, including the agency's employees if the agency is authorized to accept donations or if "a private organization exists that is designed to further the purposes and duties of the agency." Tex. Gov't Code, §2255.001(a).
Nonprofit partners serve an important function for the department. These organizations provide valuable financial and in-kind support to the department. In addition, these organizations provide assistance to the department in carrying out the department’s mission.
The adopted rules categorize each of the department’s nonprofit partners as a general nonprofit partner (GNP), a closely related nonprofit partner (CRNP), or the official nonprofit partner (ONP). A general nonprofit partner is a nonprofit partner that is not a closely-related nonprofit partner or the official nonprofit partner and has an agreement of any kind with the department, has a representative serving on a department or commission advisory committee, or otherwise has a relationship with the department. A closely related nonprofit partner is a nonprofit partner whose primary purpose is to benefit a specific department property, facility, or program. Closely related nonprofit partners include "friends groups" (e.g., Friends of Cedar Hill, Friends of San Angelo State Park). The official nonprofit partner is the entity designated as the official nonprofit partner of the department by the commission in accordance with Texas Parks and Wildlife Code, §11.205. In 2001, the commission designated the Texas Parks and Wildlife Foundation as the department’s official nonprofit partner.
The department desires to maintain a comprehensive list of all nonprofit organizations with which the department has a relationship. Because the ONP and CRNPs enjoy a closer relationship with the department, the rules impose additional and more stringent requirements on those organizations. The intent of the rules is to impose very basic requirements on GNPs. The term "nonprofit partner" refers collectively to GNPs, CRNPs, and the ONP.
To ensure clarity, adopted new §51.161, concerning Definitions, defines terms used in the rule, including closely related nonprofit partner, commission, department, donor, director, general nonprofit partner, gift, improvement, IRS 990, in-kind donation, local sponsorship, nonprofit entity, nonprofit partner, official nonprofit partner, program, regional director, sponsor, sponsorship, and statewide sponsorship.
Adopted new §51.162, concerning Criteria and General Requirements, sets out the general criteria for all nonprofit partners, including designation by the commission and receipt of a nonprofit determination letter from the U.S. Internal Revenue Service (IRS) within 180 days after being designated by the commission as a nonprofit partner. In addition, this section requires that a nonprofit partner’s activities for the department be consistent with the department’s mission and goals. This section also addresses the disposition of funds raised for the benefit of the department. These requirements are intended to ensure that all nonprofit partners meet the basic requirements of a nonprofit corporation and are properly designated by the commission.
In addition, adopted new §51.162 provides that the ONP and each CRNP must enter an agreement with the department within 60 days of being designated as a CRNP or an ONP, must be incorporated in accordance with the Texas Nonprofit Corporation Act (Business Organizations Code, Chapter 22), and must notify the department of any change in tax status. Incorporation in accordance with Texas law is desired to ensure that CRNPs and the ONP comply with Texas law regarding nonprofit corporations, given the close relationship that CRNPs and the ONP have with the department.
The adopted new rules describe four types of best practices: general best practices (§51.163); best practices regarding officers and directors (§51.164); best practices regarding fundraising (§51.165); and best practices regarding sponsorships (§51.166).
Adopted new §51.163, concerning Best Practices (General), describes the general best practices applicable to NPs. Subsection (a) applies to all nonprofit partners. Subsection (b) applies only to CRNPs and the ONP. Subsection (c) applies only to the ONP.
The general best practices applicable to all nonprofit partners in adopted new §51.163(a) prohibit an NP from holding or obligating department funds; prohibit an NP from using department intellectual property without the department’s written agreement; prohibit an NP from using department facilities or services without the department’s written approval; and require an NP to comply with applicable law and department guidelines, including anti-discrimination laws. These requirements are intended to ensure that the department’s property and funds are protected and that nonprofit organizations with which the department is associated comply with all applicable laws.
CRNPs and the ONP must comply with additional general best practices listed in adopted new §51.163(b). Each CRNP and the ONP must file with the department and make available to the public an annual IRS 990 (Return of Organization Exempt from Tax), regardless of whether the nonprofit is required to file a return with the Internal Revenue Service; conduct business in a manner to ensure transparency which is defined to mean that business practices and internal processes are conducted in a way that is open, clear, measurable, and verifiable; file an annual report and organizational documents (bylaws, articles of incorporation, financial statements) with the department and make those documents available to the public; and notify the department and associated CRNPs of each meeting and allow a department representative and a representative of an associated CRNP to attend. This section also prohibits CRNPs or the ONP from lobbying, as defined in Government Code, Chapter 305, or supporting a political candidate. Under this section, the ONP must also have an annual audit and maintain adequate officers and directors liability insurance. Because the ONP and CRNPs are closely associated with the department and often engage in activities on behalf of or intended to solely benefit the department, it is important that the activities and practices of the ONP and CRNPs are conducted in a manner that enables the organization to withstand public scrutiny.
Adopted new §51.164, concerning Best Practices (Officers and Directors), describes the best practices related to officers and directors. Subsection (a) applies to all nonprofit partners; subsection (b) applies only to CRNPs and the ONP; and subsection (c) applies only to the ONP.
Under adopted new §51.164(a), all nonprofit partner officers and directors must be provided a copy of the department’s Land and Water Resources Conservation and Recreation Plan (the Plan) or a link to the Plan on the department’s web site. This requirement is also contained in Parks and Wildlife Code, §11.204.
Adopted new §51.164(b) requires that each CRNP and the ONP have a conflict of interest policy; pay only reasonable compensation to executives and managers; hold regular board meetings; and provide organizational and related documents to new board members and directors. In addition, each CRNP and the ONP must prohibit a department employee or commissioner from being an officer or director (except in a non-voting capacity). These requirements are intended to ensure that a proper relationship is established between the department and the nonprofit partner and that the nonprofit partner’s officers and directors are appropriately informed regarding the organization’s roles and activities.
Adopted new §51.165, concerning Best Practices (Fundraising), describes the best practices related to fundraising. Subsection (a) applies to all nonprofit partners. Subsection (b) applies only to CRNPs. Subsection (c) applies to CRNPs and the ONP.
Adopted new §51.165(a) allows all nonprofit partners to conduct fundraising and undertake programs to benefit the department as agreed in writing by the department, but prohibits an NP from obligating the department unless agreed in writing in advance by the department. This section requires that all nonprofit partners have financial procedures governing the handling of funds raised for the benefit of the department and engage in reasonable and prudent financial management practices. In addition, this section requires that funds raised and projects undertaken by a CRNP benefit the facility, property, or program with which the CRNP is associated or must further the CRNP’s mission related to the facility, property, or program. These fundraising restrictions are not intended to limit the ability of a nonprofit partner to make an unrestricted donation to the department. The new section also allows NPs, CRNPs, and the ONP to work together towards a common goal for the benefit of the department. As a state agency, the department must comply with restrictions on the use of the state’s resources and name. In addition, the ONP and CRNPs often use a name similar to that of the department or a department facility. To ensure confidence on the part of persons or entities that donate funds in support of a department program, event, facility, or property, it is important that donated funds are used as the donor intended. Similarly, it is important that representations made to donors regarding department programs, events, and properties are accurate and consistent with department plans. As a result, this section is intended to ensure coordination of fundraising between the department and CRNPs and the ONP.
Adopted new §51.166, concerning Best Practices (Sponsorship), describes the best practices related to sponsorships. Subsection (a) applies to all nonprofit partners. Subsection (b) applies only to CRNPs and the ONP.
Under adopted new §51.166, any nonprofit partner must have prior written approval from the department to sponsor a department program. The department will only provide the level of sponsorship recognition approved in advance by the department. Under the new section, statewide sponsorships would require the approval of the director; and local sponsorships would require the approval of the appropriate regional director. In addition, the new section places other limits on sponsorship, including prohibiting the acceptance of a sponsorship from certain persons or entities where a conflict of interest may result, including sponsorship by a person or entity holding a commercial license issued by the department. Parks and Wildlife Code, §11.026, prohibits the department from accepting donations from commercial licensees.
Adopted new §51.166 also prohibits sponsorship signage on vehicles that were purchased or are maintained with department funds, limits sponsorship recognition to the programs for which sponsorship support has been provided, and prohibits a department employee from acting as an agent for a nonprofit partner in negotiating a sponsorship package with the department. The new section also limits the level of sponsorship recognition that the department will provide to ensure that such recognition does not overshadow the department and is appropriate when considering the level of sponsor support. The department appreciates the valuable support provided by persons or entities sponsoring department events and programs. However, the Texas Constitution prohibits a state agency from making a "grant of public moneys to any individual, association of individuals, municipal or other corporations whatsoever," except in cases of public calamity. Tex. Const., art. III, §51. In addition, state resources are to be used for state purposes. Tex. Gov’t Code, §2203.004. An incidental private benefit is permissible if the primary purpose is a public purpose. Graves v. Morales 923 S.W.2d 754 (Tex. App. - Austin 1996, writ denied). As a result, the department must be vigilant in ensuring that the department program or event is not overshadowed by recognition of a corporate or other sponsor.
Adopted new §51.167, concerning Department Procedures, sets out general department procedures including the periodic designation of NPs and a prohibition on the department obligating NP funds or property. The adopted new section also allows the ONP to reimburse department employees for legitimate travel expenses, allows the ONP to award department scholarships, and requires commission approval of all donations of $500 or more. In addition, §51.167 provides that, if a policy or procedure is required by the new subchapter, the department will develop model policies and procedures that can be adopted by NPs. These provisions are intended to clarify the department’s actions regarding NPs and the department’s relationship with nonprofit partners.
The adopted new rules will function by establishing the general requirements and best practices for nonprofit entities that are considered nonprofit partners of the department.
The department received comments from two commenters. One commenter supported the rule but did not provide an explanation. The other commenter expressed support and made several suggestions.
A commenter suggested that §51.163(a)(5) be clarified to provide that an agreement to allow a nonprofit partner to use of a department facility must be in writing. The department agrees with this comment and has changed this section as adopted to reflect this comment.
A commenter suggested that §51.163(b)(7) be clarified to require that, if more than one CRNP is associated with a department site or project, that all CRNPs be notified of an associated CRNP meeting and allow a representative from each associated CRNP to attend. The department agrees with this comment and has made the recommended change.
A commenter suggested that the department develop model policies and procedures that could be adopted by nonprofit partners to satisfy the new rules’ requirements regarding adoption of policies and procedures. The department agrees with this comment and added a subsection to §51.167 providing that the department may develop model policies and procedures.
Subchapter G. NONPROFIT ORGANIZATIONS
§§51.161 - 51.163, 51.165, 51.166
The repeals are adopted under the authority of Parks and Wildlife Code, §§11.202, 11.203, and 11.205, and Government Code, §2255.001.
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 April 27, 2007.
TRD-200701596
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Effective date: May 17, 2007
Proposal publication date: March 2, 2007
For further information, please call: (512) 389-4775
The new rules are adopted under the authority of Parks and Wildlife Code, §§11.202, 11.203, 11.205, and Government Code, §2255.001.
§51.163.Best Practices (General).
(a) All NPs must comply with the general best practices prescribed in this subsection.
(1) NPs shall not hold or obligate department funds.
(2) NPs shall comply with all applicable rules, regulations, and laws, including all applicable laws regarding discrimination based on race, color, national origin, sex, age, and disability.
(3) NPs shall not use or authorize the use of department intellectual property, including trademarks, logos, name, or seal, without the express written agreement of the department.
(4) NPs shall not employ a department employee in a paid position or otherwise provide compensation or a direct personal benefit to a department employee. Provided, however, unless otherwise prohibited by law, benefits authorized by Penal Code, Chapter 36, are not prohibited by this subsection.
(5) NPs may use equipment, facilities, or services of employees of the department only in accordance with a written agreement that provides for the payment of adequate compensation and/or identifies the benefit to the department for such use. Notwithstanding this subsection, a NP may use department facilities to the same extent and for the same fee as members of the public.
(b) In addition to subsection (a) of this section, CRNPs and the ONP must comply with the general best practices prescribed in this subsection.
(1) CRNPs and the ONP shall conduct business in a way that will ensure public access and transparency. As used in this subsection, "transparency" shall mean that the CRNP’s and ONP’s business practices and internal processes are conducted in a way that is open, clear, measurable, and verifiable.
(2) CRNPs and the ONP shall file with the department and make available to the public an annual report that includes a list of the primary activities undertaken during the previous year, a summary of significant achievements and challenges over the previous year, and other information requested by the department.
(3) Regardless of whether a CRNP or the ONP is required to file an IRS 990 with the Internal Revenue Service, each CRNP and the ONP must complete and file an IRS 990 with the department each year, regardless of income, and must make the IRS 990 available to the general public, upon request.
(4) CRNPs and the ONP shall file with the department its articles of incorporation, by-laws, and most recent financial statements, and any updates to these documents and shall make these documents available to the public, upon request.
(5) CRNPs and the ONP shall not engage in activities that would require it or a person acting on its behalf to register as a lobbyist under Texas law, Texas Government Code, Chapter 305. However, this subsection is not intended to restrict CRNPs and the ONP from providing information to the legislature or to other elected or appointed officials.
(6) CRNPs and the ONP shall not donate funds to a political campaign or endorse a political candidate.
(7) CRNPs and the ONP shall notify the department of all meetings and allow a department representative to attend all meetings, including, but not limited to, meetings of its general membership, managing board, and committees. Meeting notices must be provided to the department sufficiently in advance of the meeting so that the department representative has ample opportunity to attend. Such notice may be provided by letter, email, or telephone. A CRNP should also notify other CRNPs associated with the property, facility, or program of all meetings and allow a representative to attend.
(c) In addition to subsections (a) and (b) of this section, the ONP must comply with the general best practices prescribed in this subsection.
(1) The ONP must have an annual audit by an independent accounting firm and shall make the results of that audit available to the department.
(2) The ONP must maintain an adequate directors and officers liability insurance policy.
§51.167.Department Procedures.
(a) The department will maintain and periodically update a list of GNPs and a separate list of CRNPs. This list will be made available to the public.
(b) The department will not hold or obligate NP funds or property.
(c) The ONP may reimburse department employees for legitimate, documented expenses. Additionally, the ONP may award scholarships to department employees from private, donor-directed sources, so long as there is a benefit to the department.
(d) The department may develop model policies and procedures for adoption by CRNPs or other NPs. Where a CRNP or the ONP is required by these rules to adopt a policy or procedure, adoption of the model policy or procedure shall be deemed to comply with that requirement.
(e) All donations to the department of $500 or more must be approved by commission, voting in public session.
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 April 27, 2007.
TRD-200701597
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Effective date: May 17, 2007
Proposal publication date: March 2, 2007
For further information, please call: (512) 389-4775
The Texas Parks and Wildlife Commission adopts amendments to §§53.2, 53.5, 53.6, 53.12, and 53.13, concerning License Fees and Boat and Motor Fees; and §53.60, concerning Stamps. Sections 53.2, 53.6, 53.12, and 53.60 are adopted with changes to the proposed text as published in the February 23, 2007, issue of the Texas Register (32 TexReg 728). Section 53.5 and §53.13 are adopted without changes and will not be republished.
The change to §53.2, concerning License Issuance Procedures, Fees, Possession, and Exemption Rules, removes the phrase "if applicable" from subsection (b)(2) and replaces it with the phrase "unless exempt," which is more accurate.
The change to §53.6, concerning Recreational Fishing Licenses, Stamps and Tags, adds language to subsection (a)(2) to clarify that a red drum tag is available at no charge to persons who purchase a special resident fishing license.
The change to §53.12, Commercial Fishing Licenses and Tags, eliminates subsection (b)(2)(B) to eliminate the reference to the nonresident commercial fishing boat license transfer and fee. The rulemaking combined the resident and nonresident commercial fishing boat licenses. Because there is no longer a nonresident license, there is no need for a nonresident transfer.
The change to §65.60, concerning Stamps alters subsection (e)(3) to replace "special license" with "youth license." The amendment to §53.5, concerning Recreational Hunting Licenses, Stamps, and Tags, eliminated the special license and replaced it with a license limited to persons under the age of 17. The change is necessary to reflect the new terminology.
The amendments as adopted are part of an overall department initiative to reduce the number of types of licenses sold by the department. By combining or replacing certain licenses and license packages and eliminating others that are not popular, the department will reduce administrative costs and regulatory complexity while still offering a sufficient variety of licenses to meet the various types of recreational demand.
The amendment to §53.2, concerning License Issuance Procedures, Fees, Possession and Exemption Rules, adds new paragraph (4) to subsection (a) to stipulate that persons under the age of 17 are considered to be residents for the purposes of the chapter. Under Parks and Wildlife Code, §42.001, the commission is authorized to designate categories of individual as residents. The amendment to subsection (b)(2) alters the license possession requirements to acknowledge that due to the implementation of the one-day fishing package the stamp requirement is no longer universal.
The amendment to §53.5, concerning Recreational Hunting Licenses, Stamps, and Tags, renames the Special Resident Hunting License the Senior Resident Hunting License, restricts its use to residents who are 65 years of age or older, and creates an additional license that is limited to persons under the age of 17. Under current rule, the Special Resident Hunting License is available to residents over the age of 65 and any person under 17 years of age, regardless of residency status. The department wishes to be able to more accurately track demographic trends in purchasing and use, which makes it necessary to stratify the two age groups currently eligible to purchase the special resident license. The price of the licenses remains unchanged.
The amendment to §53.6, concerning Recreational Fishing Licenses, Stamps, and Tags, allows persons who are legally blind to purchase the Special Resident Fishing License. The amendment also creates the Senior Resident Fishing License for residents who are 65 years of age or older; creates a Resident One-Day All-Water Fishing License ($10 fee), a Nonresident One-Day All-Water Fishing License ($15 fee), renames the special license packages as senior license packages, and implements a fee of $3 for the Bonus Red Drum Tag.
Under Parks and Wildlife Code, §46.004, the commission may establish a lower fee or waive the fee or license requirement for a resident who is blind as defined by Human Resources Code, §94.001. The department has always allowed legally blind persons to purchase a fishing license at a reduced cost; however, this has never been explicitly stated by rule. The amendment accomplishes that. The One-Day All-Water license is intended to replace a variety of licenses. To that end, the amendment to subsection (c) also eliminates the following licenses: July and August Resident Fishing, Day Resident Fishing, and Day Nonresident Fishing; and the following license packages: July and August Resident Fishing (freshwater, saltwater, all water), the resident and nonresident "Day Plus" Fishing (freshwater, saltwater, all water). The implementation of a fee for the bonus red drum tag is necessary for the department to recoup the administrative cost of providing anglers with the opportunity to take a red drum in addition to the red drum allowed under a fishing license. The amendment also eliminates obsolete references to effective dates and makes additional nonsubstantive changes to simplify and clarify the regulations.
The amendment to §53.12, concerning Commercial Fishing Licenses and Tags, eliminates both the Resident and Nonresident Commercial Fishing Boat License and creates a single license for residents and nonresidents alike, called the Commercial Fishing Boat License. The new license is required for any boat (resident or nonresident) used in taking aquatic products (except menhaden, oysters, crabs, and shrimp) from state waters or unloading aquatic products in Texas taken from outside state waters for commercial purposes. By combining the two licenses, the department will reduce administrative costs by issuing one license instead of two. The fee for the license is $25. The amendment also eliminates obsolete references to effective dates and makes additional nonsubstantive changes to simplify and clarify the regulations.
The amendment to §53.13, concerning Business Licenses and Permits (Fishing) renames the Resident Freshwater Fishing Guide license as the Freshwater Fishing Guide license, renames the Resident Saltwater Fishing Guide license as the Resident All-Water Fishing Guide license, and renames the Nonresident Saltwater Fishing Guide license as the Nonresident All-Water Fishing Guide license. The amendment is nonsubstantive. The amendment also eliminates obsolete references to effective dates and makes additional nonsubstantive changes to simplify and clarify the regulations.
The amendment to §53.60, concerning Stamps, creates an exemption from the stamp requirements for purchasers of the Special Fishing License, Resident One-Day All-Water Fishing License, and the Nonresident One-Day All-Water Fishing License.
The rules will function to combine or replace licenses and license packages, eliminate others that are not popular, reduce the number and type of licenses, and by making the system simpler for license purchasers, and providing better utilization and harvest data from various user groups.
The department received two comments opposing adoption of the rules as proposed. Of those commenters, one offered a specific rationale for opposition. The comment, accompanied by the agency's response, follow.
One commenter opposed adoption of the portion of the proposed rules that implemented a $3 fee for a bonus red drum tag and stated that the majority of fishermen rarely ever need the bonus tag, that the fee is just another attempt at getting into the pockets of the sportsman, and that the department should do away with stamps and tags and just raise the price of the license to reflect all the fees. The department disagrees with the comment and responds that enough fishermen use the bonus tag that the department is not recouping the administrative cost of providing it free of charge, so rather than eliminating it the department chose to charge a fee for it. The department also disagrees and responds that the fee is intended to recoup the administrative costs of making the bonus red drum tag available to those who wish to take an additional oversized red drum. The department believes that anglers should have the option of purchasing a comprehensive fishing license package that includes all stamps and created the combination license for that purpose. No changes were made as a result of the comment.
The department received four comments supporting adoption of the proposed amendments.
Subchapter A. FEES
Division 1. LICENSE, PERMIT, AND BOAT AND MOTOR FEES
31 TAC §§53.2, 53.5, 53.6, 53.12, 53.13
The amendments are adopted under the authority of Parks and Wildlife Code, §42.012, which authorizes the commission to establish a lower hunting license fee or waive the fee or license requirement for a resident who is under 17 years old; §43.402, which authorizes the commission to exempt persons from the saltwater fishing stamp requirements; §43.802, which authorizes the commission to exempt persons from the freshwater fishing stamp requirements; §46.004, which authorizes the commission to establish fees for resident and non-resident fishing licenses and to establish a lower fee or waive the fee or license requirement for a resident who is blind as defined by Human Resources Code, §94.001; §46.0045, which authorizes the commission to establish fees for initial and duplicate tags; §46.005, which authorizes the commission to establish fees for temporary sportfishing licenses of all types; and §47.007, which authorizes the commission to establish a fee for a commercial fishing boat license.
§53.2.License Issuance Procedures, Fees, Possession, and Exemption Rules.
(a) Hunting license possession.
(1) No person may hunt turkey in this state without having a valid hunting license in immediate possession.
(2) A person may hunt species other than turkey in this state without having a valid hunting license in immediate possession if that person has acquired a license electronically (including by telephone) and has a valid confirmation number in his possession. Confirmation numbers shall only be valid for 20 days from date of purchase.
(3) A person may hunt deer in this state without having a valid hunting license in immediate possession only if that person:
(A) has acquired a license electronically (including by telephone) and has a valid confirmation number in his possession; and
(B) is lawfully hunting:
(i) under the provisions of §65.26 of this title (relating to Managed Lands Deer (MLD) Permits);
(ii) under the provisions of §65.28 of this title (relating to Landowner Assisted Management Permits (LAMPS));
(iii) by special permit under the provisions of Subchapter H of this chapter (relating to Public Lands Proclamation);
(iv) on department-leased lands under the provisions of Parks and Wildlife Code, §11.0272; or
(v) by special antlerless permit issued by the U.S. Forest Service (USFS) for use on USFS lands that are part of the department's public hunting program.
(4) For the purposes of this chapter, any person under the age of 17 is a resident.
(b) Fishing license possession.
(1) A person may fish in this state without having a valid fishing license in immediate possession if that person:
(A) is exempt from holding a fishing license; or
(B) has acquired a license electronically (including by telephone) and has a valid confirmation number in possession. Confirmation numbers shall only be valid for 20 days from date of purchase.
(2) No person may catch and retain a red drum over 28 inches in length in the coastal waters of this state without having a valid fishing license, saltwater sportfishing stamp (unless exempt), and red drum tag in immediate possession.
(c) Issuance of licenses and stamps electronically (including by telephone).
(1) A person may acquire recreational hunting and/or fishing licenses electronically (including by telephone) from the department or its designated representatives by agreeing to pay a convenience fee of up to $5 per license in addition to the normal license fee.
(2) A person may acquire recreational hunting and/or fishing stamps electronically (including by telephone) from the department or its designated representatives by agreeing to pay a convenience fee of up to $5 per stamp order in addition to the normal stamp fee(s). This fee shall not be charged if a license is acquired during the same transaction.
(d) The following categories of persons are exempt from fishing license requirements and fees:
(1) residents under 17 years of age;
(2) non-residents under 17 years of age;
(3) non-residents 65 years of age or older who are residents of Louisiana and who possess a Louisiana recreational fishing license;
(4) non-residents 64 years of age or older who are residents of Oklahoma;
(5) persons who hold valid Louisiana non-resident fishing licenses while fishing on all waters inland from a line across Sabine Pass between Texas Point and Louisiana Point that form a common boundary between Texas and Louisiana if the State of Louisiana allows a reciprocal privilege to persons who hold valid Texas annual or temporary non-resident fishing licenses; and
(6) residents of Louisiana who meet the licensing requirements of their state while fishing on all waters inland from a line across Sabine Pass between Texas Point and Louisiana Point that form a common boundary between Texas and Louisiana if the State of Louisiana allows a reciprocal privilege to Texas residents who hold valid Texas fishing licenses.
(e) An administrative fee of $3 shall be charged for replacement of lost or destroyed licenses, stamps, or permits. This fee shall not be charged for items which have a fee for duplicates otherwise prescribed by rule or statute.
§53.6.Recreational Fishing Licenses, Stamps, and Tags.
(a) The items listed in this subsection are sold only as part of a package. The price and terms of these items are as follows:
(1) resident fishing license--$23;
(2) special resident fishing license (valid for residents who are legally blind as described in Parks and Wildlife Code, §46.004)--$6 (one red drum tag shall be available at no additional charge with the purchase of a special resident fishing license);
(3) senior resident fishing license (valid for residents who are 65 years of age or older on the date of license purchase)--$6;
(4) "year-from-purchase" resident fishing license--$30. The "Year-from-purchase" resident fishing license is valid from the date of purchase through the end of the purchase month of the subsequent year; and
(5) non-resident fishing license--$50.
(b) The items listed in this subsection may be sold individually or as part of a package. Stamps sold individually shall be valid from the date of purchase or the start date of the license year, whichever is later, through the last day of the license year. Stamps sold as part of a fishing package shall be valid for the same time period as the license included in the package as specified in this rule. The price of these stamps is as follows:
(1) freshwater fishing stamp--$5; and
(2) saltwater sportfishing stamp--$7 plus a saltwater sport fishing stamp surcharge of $3. A red drum tag shall be issued at no additional charge with each saltwater sportfishing stamp.
(c) Fishing packages and licenses. The price of any fishing package shall be the sum of the price of the individual items included in the package.
(1) resident freshwater fishing package--$28. Package consists of a resident fishing license and a freshwater fish stamp;
(2) resident saltwater fishing package--$33. Package consists of a resident fishing license and a saltwater sportfishing stamp with a red drum tag;
(3) resident "all water" fishing package--$38. Package consists of a resident fishing license, a freshwater fishing stamp, and a saltwater sportfishing stamp with a red drum tag;
(4) senior resident freshwater fishing package--$11. Package consists of a senior resident fishing license and a freshwater fishing stamp;
(5) senior resident saltwater fishing package--$16. Package consists of a senior resident fishing license and a saltwater sportfishing stamp with a red drum tag;
(6) senior resident "all water" fishing package--$21. Package consists of a senior resident fishing license, a freshwater fishing stamp, and a saltwater sportfishing stamp with a red drum tag;
(7) "year-from-purchase" resident "all water" fishing package--$45. Package consists of a "year-from-purchase" resident fishing license, a freshwater stamp, and a saltwater sportfishing stamp with a red drum tag;
(8) resident one-day all-water fishing license--$10. One red drum tag shall be available at no additional charge with the purchase of the first one-day license only.
(9) non-resident freshwater fishing package--$55. Package consists of a non-resident fishing license and a freshwater fish stamp.
(10) non-resident saltwater fishing package--$60. Package consists of a non-resident fishing license and a saltwater sportfishing stamp with a red drum tag.
(11) non-resident "all water" fishing package--$65. Package consists of a non-resident fishing license, a freshwater fishing stamp, and a saltwater sportfishing stamp with a red drum tag.
(12) non-resident one-day all-water fishing license--$15. One red drum tag shall be available at no additional charge with the purchase of the first one-day license only.
(13) Lake Texoma fishing license--$12. Holders of a valid Lake Texoma License are exempt from freshwater fishing stamp requirements solely for the purpose of fishing on Lake Texoma; and
(14) replacement fishing package or license--$10.
(d) Fishing tags:
(1) exempt angler red drum tag--$3. Provides a red drum tag for persons that are exempt from the purchase of a resident or non-resident fishing license of any type or duration;
(2) bonus red drum tag provides a second red drum tag to persons that have previously received a red drum tag)--$3;
(3) individual bait-shrimp trawl tag--$35; and
(4) saltwater trotline tag--$4.
§53.12.Commercial Fishing Licenses and Tags.
(a) Shrimping licenses:
(1) Licenses:
(A) resident commercial gulf shrimp boat--$450;
(B) resident commercial bay shrimp boat--$348;
(C) resident commercial bait-shrimp boat--$348;
(D) resident commercial shrimp boat captain's--$30;
(E) nonresident commercial gulf shrimp boat--$1,350;
(F) nonresident commercial bay shrimp boat--$750;
(G) nonresident commercial bait-shrimp boat--$750; and
(H) nonresident commercial shrimp boat captain's--$120.
(2) Shrimping license surcharge for shrimp marketing account:
(A) resident commercial gulf shrimp boat--$45;
(B) resident commercial bay shrimp boat--$34.80;
(C) nonresident commercial gulf shrimp boat--$135; and
(D) nonresident commercial bay shrimp boat--$75.
(3) License transfers:
(A) Transfers between living persons.
(i) resident commercial gulf shrimp boat license transfer--$25;
(ii) resident commercial bay shrimp boat license transfer--$348;
(iii) resident commercial bait-shrimp boat license transfer--$348;
(iv) nonresident commercial gulf shrimp boat license transfer--$25;
(v) nonresident commercial bay shrimp boat license transfer--$750; and
(vi) nonresident commercial bait-shrimp boat license transfer--$750.
(B) Transfers to heirs (as defined in Parks and Wildlife Code, §77.113).
(i) resident commercial bay shrimp boat--$10;
(ii) resident commercial bait shrimp boat--$10;
(iii) nonresident commercial bay shrimp boat--$10; and
(iv) nonresident commercial bait shrimp boat--$10;
(4) Replacement display licenses.
(A) resident commercial gulf shrimp boat--$25;
(B) resident commercial bay shrimp boat--$25;
(C) resident commercial bait-shrimp boat--$25;
(D) nonresident commercial gulf shrimp boat--$25;
(E) nonresident commercial bay shrimp boat--$25; and
(F) nonresident commercial bait-shrimp boat--$25.
(b) Oystering licenses.
(1) Licenses:
(A) resident commercial oyster boat--$420;
(B) resident sport oyster boat--$12;
(C) resident commercial oyster boat captain's--$30;
(D) resident commercial oyster fisherman's--$120;
(E) nonresident commercial oyster boat--$1,680;
(F) nonresident sport oyster boat--$48;
(G) nonresident commercial oyster boat captain's--$120; and
(H) nonresident commercial oyster fisherman's--$300.
(2) License transfers:
(A) resident commercial oyster boat transfer--$25; and
(B) nonresident commercial oyster boat transfer--$25.
(3) Replacement display licenses:
(A) resident commercial oyster boat--$25; and
(B) nonresident commercial oyster boat--$25.
(c) General, finfish, menhaden, mussel, clam, and miscellaneous licenses.
(1) Licenses and permits.
(A) commercial fishing boat (required for any boat used in taking aquatic products (except menhaden, oysters, crabs and shrimp) from state waters or unloading aquatic products in Texas taken from outside state waters for commercial purposes)--$25;
(B) class A menhaden boat--$4,200;
(C) class B menhaden boat--$50;
(D) resident general commercial fisherman's--$24;
(E) resident commercial mussel and clam fisherman's--$36;
(F) resident shell buyer's--$120;
(G) nonresident general commercial fisherman's--$180;
(H) nonresident commercial mussel and clam fisherman's--$960;
(I) nonresident shell buyer's--$1,800;
(J) menhaden fish plant permit--$180;
(K) mussel dredge fee--$36; and
(L) permit to sell non-game fish--$60.
(2) License transfers. Resident commercial fishing boat license transfer--$10.
(3) Replacement display licenses.
(A) resident commercial fishing boat--$10; and
(B) nonresident commercial fishing boat--$10.
(d) Crab licenses.
(1) Licenses and permits.
(A) resident commercial crab fisherman's--$600; and
(B) nonresident commercial crab fisherman's--$2,400.
(2) License transfers.
(A) Transfers between living persons.
(i) resident commercial crab fisherman's--$600; and
(ii) nonresident commercial crab fisherman's--$2,400.
(B) Transfers to heirs (as defined by Parks and Wildlife Code, §78.109).
(i) resident commercial crab fisherman's--$10; and
(ii) nonresident commercial crab fisherman's--$10.
(3) Duplicate display licenses.
(A) resident commercial crab fisherman's--$25; and
(B) nonresident commercial crab fisherman's--$25.
(e) Finfish licenses.
(1) Licenses and permits.
(A) resident commercial finfish fisherman's--$360; and
(B) nonresident commercial finfish fisherman's--$1,440.
(2) License transfers.
(A) Transfers between living persons.
(i) resident commercial finfish fisherman's--$360; and
(ii) nonresident commercial finfish fisherman's--$1,440.
(B) Transfers to heirs. A license may be transferred to an heir or devisee of the deceased holder of the commercial finfish license, but only if the heir or devisee is a person who in the absence of a will would be entitled to all or a portion of the deceased's property.
(i) resident commercial finfish fisherman's--$10; and
(ii) nonresident commercial finfish fisherman's--$10.
(3) Duplicate display licenses.
(A) resident commercial finfish fisherman's--$25; and
(B) nonresident commercial finfish fisherman's--$25.
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 April 24, 2007.
TRD-200701561
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Effective date: May 14, 2007
Proposal publication date: February 23, 2007
For further information, please call: (512) 389-4775
The amendment is adopted under the authority of Parks and Wildlife Code, §43.402, which authorizes the commission to exempt persons from the saltwater fishing stamp requirements, and §43.802, which authorizes the commission to exempt persons from the freshwater fishing stamp requirements.
§53.60.Stamps.
(a) Stamp form. Stamp sizes and formats shall be prescribed by the executive director.
(b) Stamp Design. An artist's original rendition will be the basic design. Stamps issued by an automated system may be an alternate design as prescribed by the executive director.
(c) Stamp Manner of Issuance. The stamp will be issued upon payment of the prescribed fee in a manner determined by the executive director.
(d) Stamp Purchase Identification and Possession Requirements.
(1) A person may hunt without a required state hunting stamp in immediate possession if the person has acquired a stamp electronically (including by telephone) and has a valid authorization number in possession. Authorization numbers shall only be valid for 20 days from purchase date.
(2) A person may fish without a required fishing stamp in immediate possession if the person has acquired a stamp electronically (including by telephone) and has a valid authorization number in possession. Authorization numbers shall only be valid for 20 days from purchase date.
(3) A state hunting or fishing stamp issued in an automated manner to a person using the stamp is valid for hunting or fishing purposes without the user's signature on its face.
(e) Stamp Exemptions.
(1) The commission grants the executive director authority to exempt persons participating in any event organized for the primary purpose of promoting participation in fishing or hunting activities from the requirement to purchase or possess the following stamps:
(A) migratory game bird stamp;
(B) archery hunting stamp;
(C) upland game bird stamp;
(D) saltwater sportfishing stamp; and
(E) freshwater fishing stamp.
(2) All nonresident spring turkey hunting license holders are exempt from requirements for acquisition and possession of the upland game bird stamp.
(3) Youth license holders and lifetime resident hunting license holders are exempt from requirements for acquisition and possession of the following stamps:
(A) migratory game bird stamp;
(B) upland game bird stamp; and
(C) archery hunting stamp.
(4) All lifetime resident combination hunting and fishing license holders are exempt from requirements for acquisition and possession of the following stamps:
(A) migratory game bird stamp;
(B) upland game bird stamp;
(C) archery hunting stamp;
(D) saltwater sportfishing stamp; and
(E) freshwater fishing stamp.
(5) All lifetime resident fishing license holders are exempt from requirements for acquisition and possession of the following stamps;
(A) saltwater sportfishing stamp;
(B) freshwater fishing stamp.
(6) All persons meeting the definition of a qualified disabled veteran under the provisions of Parks and Wildlife Code, §42.012(c), are exempt from the fees for the following stamps:
(A) migratory game bird stamp;
(B) upland game bird stamp;
(C) archery;
(D) saltwater fishing; and
(E) freshwater fishing.
(7) All Texas residents on active duty in the armed forces of the United States (including members of the Reserves and National Guard on active duty) are exempt from the fees for the following stamps:
(A) migratory game bird stamp;
(B) upland game bird stamp;
(C) archery;
(D) saltwater fishing; and
(E) freshwater fishing.
(8) Special fishing license holders are exempt from the requirements for acquisition and possession of the following stamps:
(A) saltwater sportfishing stamp; and
(B) freshwater fishing stamp.
(9) All one-day all-water fishing license holders are exempt from requirements for acquisition and possession of the following stamps:
(A) saltwater sportfishing stamp; and
(B) freshwater fishing stamp.
(f) Obsolete Stamps and Decals. An obsolete stamp is a stamp that is not valid.
(1) Obsolete stamps and decals shall be sold for informational purposes, either at an established fee for collector's edition stamp package, or at face value for individual stamps, plus a processing charge sufficient to recover shipment, postage, and sales tax.
(2) Stamps and decals shall remain on sale for a maximum of one fiscal year after expiration. During the second year, obsolete stamps and decals shall be sold only by book.
(3) Previous issues of Nongame and Endangered Species stamps may be made available for sale at $10 for individual stamps or decals, and $75 or less for a complete set of the 11 stamps issued from 1985 through 1995. The department may sell a limited number of collector's sets of the 11 stamps issued from 1985 through 1995, framed and mounted, for $300 or less per set. The department may add to this price a processing charge sufficient to recover shipment, postage, and sales tax. The Department may give away earlier issues of decals and use previously issued stamps in merchandise items that are offered for sale or as promotional items.
(g) Nongame and Endangered Species stamps issued during and after 1996 are one of seven stamps issued as collectors series set and are subject to the same rules as other obsolete stamps.
(1) The executive director may maintain a limited number of stamps and decals of each type and year.
(2) All other obsolete stamps and decals shall be destroyed.
(h) Collector's edition stamp package.
(1) A collector's edition stamp package shall consist of one each of the following stamps:
(A) migratory game bird stamp;
(B) upland game bird stamp;
(C) nongame stamp;
(D) archery stamp;
(E) saltwater sportfishing stamp; and
(F) freshwater fishing stamp.
(2) Stamps in the package are not valid for hunting or fishing.
(3) Fee for the package shall be $10 wholesale price and $20 retail price plus applicable sales tax.
(i) In addition to the freshwater fishing stamp, the department may make available a collectible freshwater habitat stamp for a fee of $5.
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 April 24, 2007.
TRD-200701560
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Effective date: May 14, 2007
Proposal publication date: February 23, 2007
For further information, please call: (512) 389-4775
Division 1. LICENSE, PERMIT, AND BOAT AND MOTOR FEES
The Texas Parks and Wildlife Commission adopts an amendment to §53.16, concerning Vessel, Motor, and Marine Licensing Fees, without changes to the proposed text as published in the February 23, 2007, issue of the Texas Register (32 TexReg 730).
Under current rule, record information concerning ownership of a boat or motor is obtainable for a fee of $2 per record. The current fee was promulgated to allow the department to recoup the administrative expenses incurred in retrieving and verifying information; however, the introduction of the department's automated Boat Registration Information and Titling System (BRITS) has reduced the cost of accessing records to the extent that the fee is no longer necessary. Eliminating the $2 per record fee will enable the department to more efficiently provide these records.
The adopted amendment will eliminate the current fee of $2 to obtain a record of boat or motor ownership.
The department received one comment opposed to adoption of the proposed amendment. The commenter did not elaborate or offer a rationale for opposition. The department disagrees with the comment and responds that it is no longer necessary to impose a fee for accessing boat ownership records. No changes were made as a result of the comment.
The department received five comments supporting adoption of the proposed amendment.
The Boating Trades Association of Texas and the Gulf Coast Yacht Brokers Association commented in favor of adoption of the proposed amendment.
The amendment is adopted under the authority of Parks and Wildlife Code, §31.039, which authorizes the commission promulgate rules to charge fee for access to ownership records and other records made or kept under Chapter 31.
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 April 25, 2007.
TRD-200701575
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Effective date: August 1, 2007
Proposal publication date: February 23, 2007
For further information, please call: (512) 389-4775
Subchapter A. HARMFUL OR POTENTIALLY HARMFUL FISH, SHELLFISH, AND AQUATIC PLANTS
The Texas Parks and Wildlife Commission adopts amendments to §57.111 and §57.113, concerning Harmful or Potentially Harmful Exotic Fish, Shellfish and Aquatic Plants. Section 57.113 is adopted with changes to the proposed text as published in the December 22, 2006, issue of the Texas Register (31 TexReg 10240). Section 57.111 is adopted without changes and will not be republished.
The adopted change to §57.113 alters subsection (d) to allow any person who holds a valid exotic species permit to possess, propagate, transport, or sell the species listed in the section. As proposed, the rule would have allowed only aquaculturists to possess, propagate, transport, or sell the affected species. The department has become aware that, as proposed, the rule would prohibit grocery stores and markets from possessing, transporting, or selling tilapia and water spinach, which is not the intent of the department.
The adverse effects of intentional and accidental introductions of exotic aquatic species into natural aquatic systems have been widely studied and documented around the world. The impact of a specific exotic species on a given native ecosystem is difficult to predict; but in general terms, the threat potential can be characterized by: (1) evidence that the species is invasive elsewhere, (2) potential suitable range, (3) reproductive potential, (4) habitat quality, (5) the presence/absence of similar species, (6) the prey/predator relationship within the prospective habitat, and (7) food abundance. In addition, other factors, such as dispersal dynamics, can affect the efficacy of establishment. Once established, invasive exotic species are extremely difficult if not impossible to eliminate.
Based on empirical scientific evidence and the widely acknowledged threat that exotic species pose to native species and ecosystems, the department believes that the regulation of those fish, shellfish, and aquatic plants that pose demonstrable, potential, or unknown threats to native populations is an integral component of maintaining and protecting existing aquatic ecosystems. The species subject to restrictions by these rules have been selected because the department believes they are or could be threats to native ecosystems in Texas.
The adopted amendment to §57.111, concerning Definitions, is necessary to standardize terminology and add several families, genera, and species to the definition of harmful or potentially harmful exotic fish, shellfish, and aquatic plants in order to better protect native aquatic resources and to be consistent with United States Department of Agriculture and Texas Department of Agriculture regulations.
The adopted amendment to §57.113, concerning Exceptions, is necessary to replace terminology as necessary to be consistent with the amendments to §57.111, concerning Definitions, and to clarify the conditions under which exotic fish or shellfish may be possessed without a permit. The current rule specifies that exotic fish and shellfish may be possessed without a permit if ‘the intestines have been removed.’ The amendment would replace that phrase with the phrase ‘gutted or beheaded.’ The intent of the current rule is to prevent live exotic fish and shellfish from being released into native ecosystems. By using the term ‘gutted,’ the department hopes to provide a more precise description of the condition that must exist in order for the exception to apply and provides for beheading in addition to evisceration as an acceptable practice for ensuring non-viability. The amendment also would allow the sale and transport of live Parastacidae to restaurants for on-premises consumption and would allow the transport of live Parastacidae outside Texas.
The adopted amendment to §57.111, concerning Definitions, alters the definition of "fish farmer" by including the term "aquaculturist," replaces the term "fish farm" with the term "aquaculture facility" and replaces the term "fish farm complex" with the term "aquaculture complex". The amendment is necessary to clarify that the subchapter applies to persons who culture or possess harmful or potentially harmful exotic aquatic plants as well as animals. The amendment also defines the terms ‘gutted’ and ‘beheaded’ to ensure unambiguous meanings of those terms for the purposes of enforcing the provisions of the subchapter that set forth the conditions under which exotic fish may be possessed or transported.
The adopted amendment to §57.111 also reflects changes to scientific nomenclature and the reclassification of certain species, corrects errors, and makes nonsubstantive changes in the interest of clarification and consistency, including the redesignation of elements of the rule’s structure where necessary.
The adopted amendment to §57.111(16) clarifies that the provisions of the subchapter affect only the genus Hydrocynus and adds the correct subfamily name, which is necessary to make the provisions of the subchapter taxonomically accurate.
The adopted amendment to §57.111(16)(F) corrects a misspelling (Pirambebas) and excludes the genus Piaractus from the provisions of the subchapter. The adopted amendment is necessary to maintain accurate taxonomic references and to exempt a genus that is fairly popular in the pet trade and not deemed to be an ecological threat to native ecosystems.
The adopted amendment to §57.111(16)(G) adds the family and common names for tetras affected by the subchapter in order to provide clarity and maintain parallelism with the identification convention employed throughout the subchapter.
The adopted amendment to §57.111(16)(H) adds the family name for affected dourados in order to provide clarity.
The adopted amendment to §57.111(16)(J) revises the taxonomic references in the paragraph to conform with those prescribed by the American Fisheries Society. The amendment is necessary to ensure accurate taxonomic references.
The adopted amendment to §57.111(16)(M) adds the common names of carps and minnows subject to the provisions of the subchapter and adds two new genera (Labeo and Catlocarpio) to the list of prohibited carps and minnows, in addition to making changes to reflect reclassifications, corrections, and clarifications. Carp in the genera Labeo and Catlocarpio are nearly identical to those in two already-prohibited genera, Cirrhinus and Catla, respectively. Generally, exotic carp have caused a wide array of ecological problems in Texas and elsewhere; and it is reasonable to assume that the genera Labeo and Catlocarpio have the potential to cause similar problems. These genera were not restricted previously because there did not appear to be an importation threat. However, small specimens of Catlocarpio are beginning to become available in the international pet trade, including over the internet. Catlocarpio are large Asian carp that reach sizes of eight feet or more. Aquarium fish that rapidly grow very large are prime candidates for illegal releases in local waters. Therefore, it is prudent to restrict these genera now before major trade markets have developed as opposed to attempting to eliminate them after they have become established in food markets or the pet trade.
The adopted amendment to §57.111(16)(S) adjusts taxonomic references as necessary to reflect reclassification within the Tilapia family by the scientific community.
The adopted amendment to §57.111(16)(V) adjusts taxonomic references as necessary to reflect reclassification within the Percidae family by the scientific community.
The adopted amendment to §57.111(16)(W) adds taxonomic language to address differences of opinion within the scientific community regarding the family name of Nile perch.
The adopted amendment to §57.111(16)(X) corrects the common names of the species affected by the subparagraph. The amendment is necessary to improve clarity.
The adopted amendment to §57.111(16)(Z) corrects a misspelling (Ruffe). The amendment is necessary to maintain accurate taxonomic references.
The adopted amendment to §57.111(16)(DD) corrects an error by moving Heteropneustidae to subparagraph (AA). Heteropneustidae is the scientific name for the air sac catfishes family and should not be listed under the goby family. The amendment also adds a single genus of the goby family to the definition of harmful or potentially harmful fish, shellfish, and aquatic plants. Round gobies have already invaded the Great Lakes and have caused significant detrimental ecological impacts there by devouring native fishes and their eggs and by their aggressive habits of driving native species from their spawning, nursery, and feeding areas.
The adopted amendment to §57.111(16)(CC) adds the common name of the Anguilliidae family. The amendment is necessary to improve clarity.
The adopted amendment to §57.111(16)(EE) and (FF) adds two new families (Moronidae and Percichthyidae) to the definition of harmful or potentially harmful fish, shellfish, and aquatic plants. The Asian and European Moronidae and the Percichthyidae are ecological counterparts of Texas native striped and white basses and would compete for the same ecological niches. The Moronidae have already become established in the Great Lakes, where they are known to eat the eggs of white bass and other native species and to hybridize with native bass. The Percichthyidae, or Chinese perches, also known as cold water groupers, are cold and salinity-tolerant fish with very large mouths that are very similar to bass and have the potential to be competitive to a detrimental extent with Texas native basses.
The adopted amendment to §57.111(17)(A) expands the prohibition on harmful or potentially harmful crayfish from a single genus to all southern hemisphere species. Virtually all crayfish species can cause ecological problems when introduced outside their natural ranges. Crayfish are a central component of freshwater food webs and ecosystems, acting as the dominant consumers of benthic invertebrates, detritus, macrophytes, and algae and as important forage for fish. Thus, additions to or removals of crayfish species from a native ecosystem often lead to large ecosystem effects, including changes in fish populations and losses in biodiversity. North American crayfish species are particularly susceptible to invasions from non-indigenous species because they have limited natural ranges. The single greatest threat to crayfish biodiversity worldwide is from accidental or intentional introduction of non-indigenous crayfish. In Europe, native crayfish have suffered from competition with introduced crayfish; but the greater impact has been caused by a fungal plague carried by non-indigenous species. Consequently, it is prudent to restrict non-indigenous crayfish species now before they become components of the aquaculture or pet industries and emerge as a significant problem.
The adopted amendment to §57.111(17)(C), (E), and (G) reflects reclassifications and makes clarifications. Under the current rules, a single genus of giant rams-horn snails and a single species of applesnails are prohibited. The amendment expands the prohibition to include the entire family, which now includes both of these groups as a result of reclassification. The expansion is necessary because many of these snails are significant agricultural and ecological pests, eating plants and carrying diseases and parasites. An exception has been made for the spiketop applesnail, which is the primary snail sold for aquarium culture. The spiketop applesnail is not cold-tolerant, does not eat larger aquatic plants, and is unlikely to become established or problematic in Texas. The amendment also alters taxonomic references to reflect reclassification within the Penaeid shrimp family by the scientific community, which is necessary to maintain accurate taxonomic references.
The adopted amendment to §57.111(18)(A), (C), (I), and (L) revises scientific names, includes alternate common names (duckweed, water spinach), reflects reclassification of certain species by the scientific community (waterhyacinth), and adds eight species to the list of harmful or potentially harmful exotic aquatic plants in order to be consistent with United States Department of Agriculture and Texas Department of Agriculture regulations. The amendment is necessary to improve accuracy and clarity and to ensure that the rules do not conflict with federal provisions.
The adopted amendment to §57.111(19) and (31) clarifies the boundary description of the harmful or potentially harmful exotic species exclusion zone and explicitly states that shellfish and/or water from a quarantined facility may not come into contact with public water. The amendment is necessary to more accurately identify the area of the state to which the exclusion provisions apply and to explicitly state a prohibition so as to remove the possibility of ambiguity.
The adopted amendment to §57.111(32) adds a definition for "shellfish disease specialist." The amendment is necessary because the provisions of §57.114, concerning Health Certification of Exotic Shellfish, require that exotic shellfish be certified as disease free by a shellfish disease specialist. The amendment establishes the criteria that a person must meet in order to be regarded by the department as qualified to certify the health status of exotic shellfish.
Data and methodology used include the following studies, as well as surveys of the industry.
Cook, B., S. Choy, and J. Davie. undated. Potential ecological impacts of translocating redclaw crayfish, Cherax quadricarinatus. Online abstracts. www.vims.edu/tcs/ICC5_abstracts.htm.
De Moor, I. 2002. Potential impacts of alien freshwater crayfish in South Africa. African Journal of Aquatic Science 27:125-139.
Hanson, J.M., P.A. Chambers, and E.E. Prepas. 1990. Selective foraging by the crayfish Orconectes virilis and its impact on macroinvertebrates. Freshwater Biology 24:69-80.
Hepworth, D.K., and D.J. Duffield. 1987. Interactions between an exotic crayfish and stocked rainbow trout in Newcastle Reservoir, Utah. North American Journal of Fisheries Management 7:554-561.
Kats, L.B. and R.P. Ferrer 2003. Alien predators and amphibian declines: review of two decades of science and the transition to conservation. Diversity and Distributions 9:99-110.
Hobbs H. H. I.; Jass J. P.; and Huner J. V. 1989 A review of global crayfish introductions with particular emphasis on two North American species (Decapoda, Cambaridae). Crustaceana 56:303-309.
Huner J. V. 1977. Introductions of the Louisiana red swamp crayfish, Procambarus clarkii (Girard); an update. Freshwater Crayfish 3:193-202.
Lodge, D.M., M.W. Kershner, J.E. Aloi, and A.P. Covich. 1994. Effects of an omnivorous crayfish (Orconectes rusticus) on freshwater littoral food web. Ecology 75:1265-1281.
Lodge, D.M., T.K. Kratz, and G.M. Capelli. 1986. Long-term dynamics of three crayfish species in Trout Lake, Wisconsin. Can. J. Fish. Aquat. Sci. 43:993-998.
Lodge, D.M., and J.G. Lorman. 1987. Reductions in submersed macrophyte biomass and species richness by the crayfish Orconectes rusticus. Can. J. Fish. Aquat. Sci. 44:591-597.
Lodge, D.M., C.A. Taylor, D.M. Holdich, and J. Skurdal. 2000a. Nonindigenous crayfishes threaten North American freshwater biodiversity: lessons from Europe. Fisheries Vol. 25, No. 8:7-20.
Lodge, D.M., C.A. Taylor, D.M. Holdich, and J. Skurdal. 2000b. Reducing impacts of exotic crayfish introductions: new policies needed. Fisheries Vol. 25, No. 8:21-23.
Lorman J.G. and J.J. Magnuson. 1978. The role of crayfishes in aquatic ecosystems. Fisheries 3:6-8.
Masser, M.P. and D.B. Rouse. 1997. Red claw crayfish. Southern Regional Aquaculture Center. SRAC Publication No. 244.
Momot W. T. 1995. Redefining the role of crayfish in aquatic ecosystems. Reviews in Fisheries Science 3:33-63.
Olsen, T.M., D.M. Lodge, G.M. Capelli, and R.J. Houlihan. 1991. Mechanisms of impact on an introduced crayfish (Orconectes rusticus) on littoral congeners, snails, and macrophytes. Can. J. Fish. Aquat. Sci. 48:1853-1861.
Piper, L. 2000. Potential for expansion of freshwater crayfish industry in Australia. Rural Industries Research and Development Corporation. RIRDC Publication No. 00/142.
Short, W.J. 2000. Crustaceans 1 freshwater crayfish. Leaflet 0057, Queensland Museum, South Brisbane Australia.
Williams, E.H. Jr., L. Bunkley-Williams, C.G. Lilyestrom, and E.A.R. Ortiz-Corps. 2001. A review of recent introductions of aquatic invertebrates in Puerto Rico and implications for the management of nonindigenous species. Caribbean Journal of Science, Vol. 37, No. 3-4, 246-251.
Regulatory Impact Analysis. Although Government Code §2001.0225, Regulatory Analysis of Major Environmental Rules, does not apply to the rule, TPWD nonetheless provides the regulatory analysis, as follows. The benefit TPWD anticipates as a result of implementing the rule is protection of native aquatic ecosystems from the potential adverse effects of introduced species. The adverse effects of intentional and accidental introductions of exotic aquatic species into natural aquatic systems have been widely studied and documented around the world. Once established, invasive exotic species are extremely difficult if not impossible to eliminate.
The adopted rules will minimize cost and avoid unnecessary duplication by clarifying many scientific and popular names, therefore, decreasing confusion and lessening the cost of compliance.
Persons required to comply with the adopted rules will incur the costs associated with: (1) The cost of $250 per year for an exotic species permit, (2) any business lost as a consequence of the prohibition of the intrastate sale of live Parastacidae for the pet trade, and (3) approximately eight hours per year for reporting and recordkeeping if a permit is required.
An alternative method of achieving the purpose of the rule that was considered was banning the sale of both live and dead Parastacidae to both in-state and out-of-state buyers. It was determined that, given present knowledge regarding this family, this approach would unnecessarily affect the business of raising Parastacidae for human consumption or sale out-of-state; accordingly, the department has adopted a less-restrictive rule.
The department finds that, compared to the alternative proposals considered and rejected, the rule will result in the best combination of effectiveness in obtaining the desired results and of economic costs not materially greater than the costs of the alternative regulatory methods considered.
The department received one comment opposing adoption of the rule. The commenter did not articulate a reason for opposing adoption. The department disagrees with the comment and responds that the rules are necessary to protect native aquatic ecosystems. No changes were made as a result of the comment.
The department received no other comments concerning the adoption of the proposed rules.
The amendments are adopted under the authority of Parks and Wildlife Code, §66.007, which authorizes the commission to regulate the importation, possession, sale, and placing into the water of this state harmful or potentially harmful exotic fish, shellfish, and aquatic plants, and under Agriculture Code, §134.020, which authorizes the commission to regulate the importation, propagation, and sale of harmful or potentially harmful exotic species by an aquaculturist.
§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 fish or shellfish have been gutted, 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 grass carp have been gutted.
(d) A person who holds a valid exotic species permit issued by the department may possess, propagate, transport or sell water spinach, triploid grass carp, silver carp, triploid black carp, commonly known as snail carp, bighead carp, blue tilapia (Oreochromis aureusa), Mozambique tilapia (O. mossambica), Nile tilapia (O. nilotocusa), or hybrids between the three tilapia species, unless otherwise provided by conditions of the permit or these rules.
(e) An aquaculturist 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 or private facility 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 triploid grass carp, silver carp, triploid black carp, bighead carp, blue tilapia, Mozambique tilapia, Nile tilapia or hybrids of those species 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 fish have been gutted or beheaded; or
(2) Live Pacific white shrimp (Litopenaeus vannamei) held in the place of business if the place of business is not located within the exclusion zone described in §57.111 of this title (relating to Definitions). 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) An aquaculturist 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) A person operating a mechanical plant harvester in accordance with the provisions 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 for personal consumption.
(n) An aquaculturist who holds a valid exotic species permit issued by the department may possess, propagate, transport, and sell Parastacidae. Live Parastacidae may be possessed without a permit only:
(1) at a restaurant or other food service establishment for purposes of on-premises consumption as food; or
(2) while being transported to an out-of-state destination.
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 April 24, 2007.
TRD-200701559
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Effective date: May 14, 2007
Proposal publication date: December 22, 2006
For further information, please call: (512) 389-4775
Subchapter A. GENERAL PROVISIONS
The Texas Water Development Board (board) adopts amendments to 31 TAC §365.10 concerning Ethics and Conflicts of Interest without changes to the proposed text as published in the March 16, 2007, issue of the Texas Register (32 TexReg 1483). The text will not be republished. Adopted amendments to this section are adopted to comply with the requirement of Texas Government Code, §2263.004, that the board adopt standards of conduct applicable to financial advisors or service providers who are not employees of the state agency, who may reasonably be expected to receive more than $10,000 in compensation during a fiscal year, and who provide financial services to the state agency or advise the state agency or a member of the governing body of the state agency in connection with the management or investment of state funds.
The addition of §365.10(c) incorporates the language of Government Code, §2263.005, that financial analysts and service providers described by Government Code, §2263.004, should avoid:
(1) any relationship with any party to a transaction with the board or the Texas Water Resources Finance Authority (authority), other than a relationship necessary to the investment or funds management services that the financial advisor or service provider performs for the board or authority, if a reasonable person could expect the relationship to diminish the financial advisor's or service provider's independence of judgment in the performance of the person's responsibilities to the board or authority.
(2) any direct or indirect pecuniary interest in any party to a transaction with the board or authority, if the transaction is connected with any financial advice or service the financial advisor or service provider provides to the board or authority or to a member of the board in connection with the management or investment of state funds.
The addition of §365.10(d) requires that financial analysts or service providers described by Government Code, §2263.004, must report any relationship or pecuniary interest described in subsection (c) in writing to the board's executive administrator or designated representative, without regard to whether the relationship is a direct, indirect, personal, private, commercial, or business relationship.
No comments were received concerning the proposed rulemaking.
The amendments are adopted under the authority of the Texas Water Code, §6.101, which provides the Texas Water Development Board with the authority to adopt rules necessary to carry out the powers and duties in the Texas Water Code and other laws of the State, and the Texas Government Code, §2263.004, which requires the Texas Water Development Board to adopt rules regarding standards of conduct applicable to financial advisors and service providers who are not employees of the board, who provide financial services to the state agency or advise the state agency or a member of the governing body of the state agency in connection with the management or investment of state funds.
The amendments implement Texas Government Code, Chapter 2263.
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 April 27, 2007.
TRD-200701606
Wendall Corrigan Braniff
General Counsel
Texas Water Development Board
Effective date: May 17, 2007
Proposal publication date: March 16, 2007
For further information, please call: (512) 475-2052