PART 2. TEXAS PARKS AND WILDLIFE DEPARTMENT
SUBCHAPTER A. FEES
DIVISION 1. LICENSE, PERMIT, AND BOAT AND MOTOR FEES
The Texas Parks and Wildlife Commission adopts an amendment to §53.17, concerning Miscellaneous Fees, without changes to the proposed text as published in the April 18, 2008, issue of the Texas Register (33 TexReg 3161).
The amendment establishes a $25 fee for participation in the mentored hunting program offered by the department. Elsewhere in this issue of the Texas Register the department is adopting rules that create a mentored hunting permit for use on department wildlife management areas in conjunction with a hunting workshop. The intent of the mentored hunting permit is to provide an opportunity for persons who are not from traditional hunting backgrounds to learn about and participate in hunting activities on department wildlife management areas.
The amendment will function by establishing a $25 fee for the mentored hunting permit.
The department received three comments opposing adoption of the proposed amendment. Two of the commenters offered a specific reason or rationale for opposing adoption. The comments, accompanied by the department's response, are as follows:
One commenter opposed adoption and stated that the fee for the mentored hunting permit should be the same as that for the annual public hunting permit ($48). The department disagrees with the comment and responds that the mentored hunting permit authorizes one-time access to a wildlife management area to participate in a hunter workshop and subsequent mentored hunt. The annual public hunting permit is a comprehensive permit that allows year-round access to wildlife management areas for hunting and other recreational purposes and therefore the fee for the annual public hunting permit is higher. No changes were made as a result of the comment.
One commenter opposed adoption and stated that there should be no fee for the mentored hunting permit. The department disagrees with the comment and responds that a minimal fee serves two purposes. The first is to allow the department to defray the expense of creating and administering the mentored hunting program, which allows the opportunity for more people to participate in the program. The second is to avoid the waste of department resources and time by people who indicate that they would like to attend and then don't. The department believes that a nominal fee encourages people to attend. No changes were made as a result of the comment.
The department received nine comments supporting adoption of the proposed amendment.
The Texas Wildlife Association commented in support of adoption of the proposed amendment.
The amendment is adopted under the authority of Parks and Wildlife Code, §81.403, which authorizes the department to issue permits authorizing access to public hunting land or for specific hunting, fishing, recreational, or other use of public hunting land or wildlife management areas; requires the conditions for the issuance and use of such permits to be prescribed by rule; and requires the department to charge a permit fee by rule.
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 July 8, 2008.
TRD-200803503
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Effective date: July 28, 2008
Proposal publication date: April 18, 2008
For further information, please call: (512) 389-4775
SUBCHAPTER C. INTRODUCTION OF FISH, SHELLFISH AND AQUATIC PLANTS
31 TAC §§57.251 - 57.253, 57.258, 57.259
The Texas Parks and Wildlife Commission adopts amendments to §§57.251 - 57.253, 57.258, and 57.259, concerning Introduction of Fish, Shellfish and Aquatic Plants. Section 57.253, concerning Permit Application, and §57.258, concerning Prohibited Acts, are adopted with changes to the proposed text as published in the April 18, 2008, issue of the Texas Register (33 TexReg 3164). Sections 57.251, 57.252, and 57.259 are adopted without change and will not be republished.
The change to §57.253 alters subsection (c)(2)(B)(iv) to make a more generic statement concerning compliance with General Land Office regulations as a prerequisite for permit issuance. The proposed provision requires "approval from the General Land Office to install an offshore aquaculture facility in state waters." The rule as adopted has been changed to simply require that an applicant to obtain any necessary approval from the General Land Office.
The change to §57.258 inserts the word "or" between paragraphs (5) and (6) to make clear that each offense listed in the section is a separate offense by itself.
Parks and Wildlife Code, §12.015, requires the department to regulate the introduction and stocking of fish, shellfish, and aquatic plants into the public water of the state. Under Parks and Wildlife Code, §66.015, the department is required to adopt rules governing the issuance of permits for the introduction of fish, shellfish, and aquatic plants into public waters. Additionally, Agriculture Code, Chapter 134, requires the department to adopt rules to carry out its duties under that chapter.
The department's statutory responsibility is to protect the health and viability of native populations of fish, shellfish, and aquatic life in state waters, including endangered species. Although offshore aquaculture is being practiced elsewhere in the world, it is in its infancy in the United States in general and the Gulf of Mexico in particular.
In November 2006, the Texas Parks and Wildlife Commission adopted rules to govern offshore aquaculture activities in Texas waters. Since that time, persons with a prospective engagement in offshore aquaculture have suggested changes to the rules that would make administrative processes more tractable and therefore more conducive to the establishment of offshore aquaculture activities in Texas.
The amendment to §57.251, concerning Definitions, alters the definition of "disease condition" to eliminate the 5% mortality rate set forth in paragraph (3)(B) as a determinative criteria for the assumption of a disease condition. Instead, the rule requires that a department-approved aquatic veterinarian be consulted within 48 hours of the discovery that a mortality rate of 5% or more has occurred in an enclosure within a seven-day period. The 48-hour notification was chosen because a longer time period would potentially allow for an epidemiologically unacceptable risk to native resource populations in public waters. The new provision is added as §57.252(e)(5).
The amendment to §57.252, concerning General Provisions, alters subsection (a) to enable the department to issue permits to corporations, companies, and other entities that meet all legal requirements for doing business in Texas.
Current §57.252(e)(5) provides that in the event a disease condition is discovered or a necessary permit is suspended or revoked, the department has the option of ordering removal of stock from an offshore aquaculture facility. The amendment to §57.252(e)(6) gives the department more flexibility in dealing with these issues, by providing that the department may take "other appropriate action" in addition to or instead of ordering removal of stock.
The amendment to §57.253, concerning Permit Application, alters subsection (c)(2)(B)(iv) to require that an applicant acquire any necessary approval from the General Land Office prior to applying for an offshore aquaculture permit.
The amendment to §57.253(d) allows the issuance of an offshore aquaculture permit to an entity that possesses a certificate of existence from the Texas Secretary of State and a franchise tax certification of account status from the Texas Comptroller of Public Accounts. The amendment would reduce potential or perceived administrative complexity for prospective offshore aquaculturists.
The amendment to §57.253 also adds new subsection (e) to authorize the department to request any additional information from an applicant necessary to evaluate the impact of a prospective offshore aquaculture operation. The amendment facilitates the department's investigations in determining whether a prospective offshore aquaculture operation poses minimal risk to native populations and systems.
The amendment to §57.253(f) establishes an informal review process for permittees who wish to seek review of a department decision to deny a permit application or to refuse to renew a permit issued under the subchapter. The amendment requires the department to notify a permittee upon a department determination to deny or suspend a permit. A permittee would then have ten working days from receipt of notification to request a review of such a decision. The review panel would consist of the director and deputy director of the Coastal Fisheries Division and the Deputy Executive Director for Operations (or his or her designee). The review panel would be required to make a determination within ten working days and the decision of the review panel would be final. The amendment provides an internal mechanism for review by senior agency managers in the event that a permittee contests a department decision to deny a permit application or to refuse to renew a permit.
The amendment to §57.258, concerning Prohibited Acts, makes it an offense for a permittee to construct an offshore aquaculture facility in a manner different from that indicated in an approved application. The current rule requires construction of the offshore aquaculture facility prior to issuance of a permit. Concern has been expressed that the existing rule inhibits project financing, since capital outlays would be required before all permits were secured. Accordingly, the proposed rule would allow issuance of the permit prior to construction. Adding the offense of construction in violation of the permit will help assure satisfactory facility construction.
The amendment to §57.259, concerning Violations and Penalties, allows for suspension or revocation of permits in the event of violations. The amendment refers to the statutory requirements in Government Code, Chapter 12, as the permittee's procedural recourse in the event the permittee wishes to challenge the department's intended suspension or revocation of a permit.
The department received one comment opposing adoption of the proposed rules. The commenter did not articulate a reason or rationale for opposing adoption. The department disagrees that the rules should not be adopted. No changes were made as a result of the comment.
The department received eight comments supporting adoption of the rules.
The Gulf Marine Institute of Technology and Bio-marine Technologies commented in support of adoption of the rules.
The amendments are adopted under Parks and Wildlife Code, §12.015, which requires the department to regulate the introduction and stocking of fish, shellfish, and aquatic plants into the public water of the state; §61.052, which requires the department to regulate taking or possessing aquatic animal life; §66.015(c), which requires the department to establish rules related to the issuance of permits for the introduction of fish, shellfish, or aquatic plants into the public water of the state; and Agriculture Code, §134.005, which requires the commission to adopt rules necessary to carry out its responsibilities under that chapter to regulate aquaculture.
§57.253.Permit Application.
(a) An applicant for a permit under this subchapter shall complete and submit an application to the department on a form supplied by the department, accompanied by the fee prescribed by §53.15 of this title (relating to Miscellaneous Fisheries and Wildlife Licenses and Permits).
(b) Except for applications for offshore aquaculture permits, an application must be received by the department at least 30 days before the proposed introduction.
(c) An application for an offshore aquaculture facility:
(1) must be received by the department at least 90 days prior to the proposed deployment of any enclosure or infrastructure;
(2) must include:
(A) The name, address, and telephone number of the owner(s) of the facility and all stock;
(B) proof that the applicant has obtained:
(i) a valid license issued by the Texas Department of Agriculture to operate an aquaculture facility (Agriculture Code Chapter 134);
(ii) all applicable state and/or federal permits or authorizations relating to water quality standards;
(iii) all applicable state and federal permits, authorizations, or clearances related to navigational hazards; and
(iv) any approval or permit required by the General Land Office;
(C) a clear and concise facility design, including scale plans and schematics of all infrastructure that, as determined by the department, is sufficient to:
(i) prevent the escape of stock from the facility; and
(ii) protect wildlife resources adjacent to the facility from:
(I) disease transmission from stock;
(II) the discharge of pollutants produced from feed or waste materials into public waters, including discharges resulting directly or indirectly from extreme weather conditions or physical collision;
(III) the escape of stock from the facility as a result of extreme weather conditions or physical collision; and
(IV) death or injury from ensnarement, entanglement, collision, or other physical interactions with enclosures or facility infrastructure;
(D) a clear and concise operations plan, which shall include best management practices that minimize potentially harmful discharges into public waters from the facility;
(E) a prospective timeline of proposed activities, by species, from the time of introduction to the time of harvest or removal for each enclosure;
(F) a plan for removing all stock from the facility within 72 hours of notice from the department under §57.252 of this title (relating to General Provisions); and
(G) a statement that all stock meets the requirements of §57.252 of this title.
(d) If the application is in the name of an entity other than an individual person or persons, the application must include a certificate of existence from the Texas Secretary of State and a franchise tax certification of account status from the Texas Comptroller of Accounts.
(e) The department may require the applicant to submit any other information that the department determines is necessary to evaluate the application or protect state resources.
(f) An applicant for a permit under this subchapter may request a review of a decision of the department to refuse issuance of a permit or permit renewal.
(1) An applicant seeking review of a decision of the department with respect to permit issuance under this subchapter shall first contact the department within 10 working days of being notified by the department of permit denial.
(2) The department shall conduct the review and notify the applicant of the results within 10 working days of receiving a request for review. The decision of the review panel shall be final.
(3) The request for review shall be presented to a review panel. The review panel shall consist of the following:
(A) the Deputy Executive Director for Operations (or his or her designee);
(B) the Director of the Coastal Fisheries Division; and
(C) the Deputy Director of the Coastal Fisheries Division.
§57.258.Prohibited Acts.
Except as provided in this subchapter, it is an offense if:
(1) a person holding a permit under this section fails to notify the department at least three calendar days prior to the placing of any fish, shellfish, or aquatic plant into public water;
(2) a person holding a permit under this section fails to notify the department at least three calendar days prior to removing any fish, shellfish, or aquatic plant from an offshore aquaculture facility;
(3) a person holding a permit under this section fails to notify the department immediately upon discovering that a disease condition exists within an offshore aquaculture facility;
(4) a person holding a permit under this section fails to notify the department immediately upon determining that an offshore aquaculture facility has been damaged and the threat of the unintentional release of stock exists;
(5) any person to whom the department has issued an offshore aquaculture permit fails to remove all enclosures and associated infrastructure from public waters within 10 calendar days of permit expiration or revocation; or
(6) a permittee constructs an offshore aquaculture facility in a manner different from the department-approved application.
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 July 9, 2008.
TRD-200803532
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Effective date: July 29, 2008
Proposal publication date: April 18, 2008
For further information, please call: (512) 389-4775
SUBCHAPTER H. PUBLIC LANDS PROCLAMATION
31 TAC §§65.191, 65.193, 65.194
The Texas Parks and Wildlife Commission adopts amendments to §§65.191, 65.193, and 65.194, concerning the Public Lands Proclamation, without changes to the proposed text as published in the April 18, 2008, issue of the Texas Register (33 TexReg 3167).
The Parks and Wildlife Code authorizes the department to issue permits for hunting in wildlife management areas and to establish a fair method for distribution of those permits. Tex. Parks & Wild. Code §81.403(a). Also, department employees are charged with providing outreach and education to "increase the participation in outdoor recreation . . . consistent with the mission and goals of the department." Tex. Parks & Wild. Code §11.0181. The department's mission includes providing "hunting and fishing and outdoor recreation opportunities for the use and enjoyment of present and future generations."
In an effort to increase participation in hunting and provide additional hunting opportunities, the amendments to §65.191 and §65.193 create and implement a new type of public hunting permit, the Mentored Hunting Permit (MHP). This pilot program would offer limited opportunities on a first-come, first-served reservation basis to persons interested in participating in a multi-day workshop on a department wildlife management area (WMA) that would teach hunting skills, safety, ethics, game processing and preparation, elements of habitat management, and provide guidance and advice for finding future hunting opportunities. As part of the workshop, participants would have the opportunity to participate in a mentored hunt on a WMA, accompanied by an experienced hunter. The pilot program is intended to explore possible initiatives to increase hunter recruitment. The mentored hunter program could be an effective vehicle for providing the opportunity for persons who are not from traditional hunting backgrounds to learn about and participate in hunting activities.
Among the permits that allow for access to WMAs is the Field Trial Permit, which authorizes permit holders to participate in competitive events on a WMA in which the skills of hunting dogs are tested. The amendment to §65.194, concerning Competitive Hunting Dog Event (Field Trials) and Fees, allows event spectators to be named on the permit and therefore be exempt from access permit fees. The department issues an average of two field trial permits per year. These events are staged by trial groups and are attended by handlers, trainers, officials, and spectators. Spectators are typically persons who have dogs in training and wish to observe the progress of their dogs. Under current rule, dog handlers and officials are exempt from access permit fees, but not spectators. There is no regulatory criterion for distinguishing a spectator from a handler or official. Rather than developing a definition to distinguish spectators from handlers and officials and attempting to enforce it, which would not be cost-effective, the department has determined that it would be more effective to allow spectators to be listed on the field trial permit and thereby exempted from the access permit requirement. The field trial permittee already pays a permit fee of between $100 and $500 per day (based on the number of participants) and must have $250,000 in liability insurance (personal injury and property damage) and a $5,000 performance bond; therefore, spectators should be exempt from access fees, provided their names and social security numbers are on the list required to be kept by the field trial permittee. Both state and federal laws regarding child support collection require the department to obtain social security numbers for each person to whom a recreational license is issued. Tex. Fam. Code §§231.302, 42 U.S.C. §666.
The amendment to §65.194 also updates a reference to Chapter 53, Subchapter A, which has been retitled since the last time §65.194 was amended.
The amendments to §65.191 and §65.193 will function by establishing the mentored hunting permit and providing for its use. The amendment to §65.194 will function by eliminating the access permit requirement for spectators at field dog trials held on wildlife management areas.
The department received four comments opposing adoption of the proposed amendments. One of those commenters provided a specific reason or rationale for opposing adoption. The commenter stated that there should be no fee for the mentored hunting permit. The department disagrees with the comment and responds that a minimal fee serves two purposes. The first is to allow the department to defray the expense of creating and administering the mentored hunting program, which allows the opportunity for more people to participate in the program. The second is to discourage people from applying for a mentored hunting workshop and then failing to attend, which results in the waste of department resources and time. No changes were made as a result of the comment.
The amendments are adopted under the authority of Parks and Wildlife Code, §81.403, which authorizes the department to issue permits authorizing access to public hunting land or for specific hunting, fishing, recreational, or other use of public hunting land or wildlife management areas; requires the conditions for the issuance and use of such permits to be prescribed by rule; and requires the department to charge a permit fee by rule.
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 July 8, 2008.
TRD-200803504
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Effective date: July 28, 2008
Proposal publication date: April 18, 2008
For further information, please call: (512) 389-4775