Subchapter C. SERVICES AND PRODUCTS
The Texas General Land Office (GLO) adopts amendments to §3.31, relating to Fees. The amendments are adopted without changes to the proposed text as published in the January 19, 2007, issue of the Texas Register (32 TexReg 237) and will not be republished. The adopted amendment for §3.31(a)(7)(D) deletes redundant wording. The adopted amendment for §3.31(a)(7)(F) addresses the cost recovery for copies that the GLO must make while processing a vacancy application.
The adopted amendment to §3.31(a)(7)(D) will remove the word "evidence" which, upon review, staff has determined to be unnecessary. The adopted amendment to subparagraph (F) of §3.31(a)(7), will allow the GLO to charge between $.10 and $.50 per page for copies based on the size of the copy and whether it is a color copy. The adopted amendment will also allow the GLO to charge $2.00 per linear foot for sketches, plats, and survey maps larger than 11 inches by 17 inches. This amendment is adopted to cover the cost of copies made by the GLO in accordance with the Vacancy Statutes as amended by the SB 1103, 79th Legislature, Regular Session (2005).
No comments were received from the public concerning the adopted rulemaking.
The amendments are adopted under §51.174(c) of the Texas Natural Resources Code, which authorizes the commissioner to adopt rules necessary and convenient to administer the vacancy subchapter.
Texas Natural Resources Code, §§51.171 - 51.195 are affected by the adopted amendments.
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 March 22, 2007.
TRD-200701135
Trace Finley
Policy Director
General Land Office
Effective date: April 11, 2007
Proposal publication date: January 19, 2007
For further information, please call: (512) 305-8598
Subchapter A. FEES
DIVISION 1. LICENSE, PERMIT, AND BOAT AND MOTOR FEES
The Texas Parks and Wildlife Commission (commission) adopts an amendment to §53.15, concerning Miscellaneous Fisheries and Wildlife License and Permits, without changes to the proposed text as published in the September 29, 2006, issue of the Texas Register (31 TexReg 8193).
Under the provisions of Parks and Wildlife Code, §66.015, no person may place any species of fish, shellfish, or aquatic plant into the public water of the state without a permit issued by the department. In a notice of adoption published elsewhere in this issue of the Texas Register, the department creates an offshore aquaculture permit, which would be required of any person engaging in offshore aquaculture in Texas state waters.
Under Parks and Wildlife Code, §11.027, the commission, by rule, may establish and provide for the collection of a fee to cover costs associated with the review of an application for a permit required by the Parks and Wildlife Code. The review process for an offshore aquaculture permit is estimated by the department to cost approximately $1,500, which consists of the cost of staff time to perform necessary research and analysis of facility plans, contingency plans, sources of stock, verification of genetic ancestry, and site inspection.
Under current rule, there is no fee for a one-time permit to introduce fish, shellfish, or aquatic plants, because review of such applications is perfunctory and rare. However, the department wishes to acknowledge that fact by listing the permit and the fact that it is a free permit.
The department received no comments concerning the adoption of the proposed amendment.
The amendment is adopted under Parks and Wildlife Code, §11.027, which authorizes the commission to establish and provide for the collection of a fee to cover costs associated with the review of an application for a permit required by the Parks and Wildlife Code.
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 March 22, 2007.
TRD-200701136
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Effective date: April 11, 2007
Proposal publication date: September 29, 2006
For further information, please call: (512) 389-4775
Subchapter C. INTRODUCTION OF FISH, SHELLFISH AND AQUATIC PLANTS
The Texas Parks and Wildlife Commission adopts the repeal of §§57.251 - 57.257 and new §§57.251 - 57.259, concerning Introduction of Fish, Shellfish, and Aquatic Plants. New §§57.251 - 57.254, 57.256, and 57.257 are adopted with changes to the proposed text as published in the September 29, 2006, issue of the Texas Register (31 TexReg 8194). The repeal of §§57.251 - 57.257 and new §§57.255, 57.258 and 57.259 are adopted without changes and will not be published.
The adopted change to §57.251, concerning Definitions, consists of two alterations. In §57.251(6) the phrase 'direct or indirect' is replaced with the phrase 'intentional or unintentional' for the sake of clarity. By referring to direct or indirect importation, the department's intent was to provide for purposeful and accidental incidents of importation; however, it is much clearer to refer to intentional and unintentional importation.
The adopted change to §57.251(8) replaces the reference to 'nine nautical miles' with the phrase 'three marine leagues.' Although the terms are synonymous, the Natural Resources Code, §11.012, uses the marine league measurement.
The adopted change to §57.252, concerning General Provisions, reorganizes the section, as follows.
Proposed §57.252(i) is adopted as new subsection (b) and is altered to provide that a permit may not be sold or transferred without department approval.
Proposed §57.252(b) is adopted as new subsection (d)(1).
Proposed §57.252(c) is adopted as new subsection (d)(2) and is altered to clarify that the provisions apply only to the offshore aquaculture permit.
Proposed §57.252(d) is adopted as new subsection (c) and is altered to clarify that the provisions apply to the one-time, no-cost introduction permit and not to the offshore aquaculture permit.
Proposed §57.252(e) is adopted as new subsection (d)(3) and is altered to provide for a maximum period of validity of five years for an offshore aquaculture permit. The provision as proposed stipulated a one-year period of validity; however, public comment persuaded the department to adopt a longer period. The comment and the agency's reasoning are addressed later in this preamble.
Proposed §57.252(f) is adopted as new subsection (d)(4).
Proposed §57.252(g) is adopted as new subsection (d)(5).
Proposed §57.252(h) is adopted as new subsection (d)(6).
The change to §57.252 also adds a new subsection, adopted as subsection (e), to stipulate notification requirements. The requirements are also contained in §57.258, concerning Prohibited Acts, and have been reproduced in §57.252 for the sake of clarification.
The adopted change to §57.252 also adds a new subsection, adopted as subsection (f), to clarify that the release of undersized fish and fish in excess of a bag limit, and the use of fish as bait as part of lawful fishing activities does not require a permit under the subchapter. The change is necessary to prevent angler confusion.
The adopted change to §57.252 also adds a new subsection, adopted as subsection (g), to state that an employee of the department, acting at the direction of the executive director, is exempt from the permit requirements of the subchapter. The change is necessary to explicitly acknowledge that employees of the department, when performing assigned duties, are not subject to regulation under the subchapter.
The adopted change to §57.253, concerning Permit Application, alters the provisions of subsection (c)(2)(E) to clarify that harvest and removal timelines apply on an enclosure-by-enclosure basis, not on a cumulative, facility-wide basis. The change is necessary to ensure that the department is able to monitor operations at a suitable level of resolution.
The adopted change to §57.254, concerning Denial, restructures the section to more clearly separate provisions that apply to offshore aquaculture from provisions that apply to the one-time, no-cost introduction permit.
The adopted change to §57.256, concerning Amendment, replaces the word 'merit' in subsection (a)(4) with the word 'warrant.' The word 'warrant' is used elsewhere in the section, and the department wished to avoid the inference that the use of a different word indicates a different meaning. The change also alters subsection (b) to clarify that the delineated prohibitions apply to any person who commits them.
The adopted change to §57.257, concerning Reporting and Recordkeeping, alters subsection (b) to clarify that annual reports are due by January 15 of each year. The use of the term 'annual report' was intended to convey this meaning; however, the department feels that clarification is necessary.
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 adopted new sections replace existing rules that treated the introduction of aquatic organisms as permanent releases. The new rules preserve the current function while adding additional regulatory provisions to govern offshore aquaculture.
The permanent introduction of fish, shellfish, and aquatic plants to the public waters is generally authorized for extremely limited reasons and only when the department has determined the introduction will not conflict with management policies or objectives and will not result in negative biological impacts to existing ecosystems. For instance, an introduction permit might be issued to a university researcher returning stock to the wild following research activities. Because the introduction permit is rarely used, there is no fee.
The adopted new sections create an offshore aquaculture permit. 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 specifically. In 2005 and 2006, federal legislation was introduced that directed the National Oceanic and Atmospheric Administration (NOAA) to establish procedures for the development of an offshore aquaculture industry in the Exclusive Economic Zone (EEZ), which is the federal jurisdiction extending from the seaward boundary of state waters out to 200 miles. The proposed legislation prompted several inquiries concerning the development of offshore aquaculture in Texas state waters.
The adopted new rules prescribe the procedures and conditions for operating an offshore aquaculture facility and implement the department's responsibilities under Agriculture Code, Chapter 134, by providing protection for marine resources in the wild, including endangered species.
The regulation of offshore aquaculture involves both state and federal jurisdictions. With respect to state agencies, the Texas Department of Agriculture (TDA) is the primary agency responsible for regulating aquaculture; the Texas Commission on Environmental Quality (TCEQ) has primary responsibility for establishing and enforcing water quality standards; the Texas General Land Office (GLO) is responsible for managing state-owned submerged lands; the Texas Animal Health Commission (TAHC) is responsible for management of animal disease necessary to protect agriculture; and the Texas Department of State Health Services (TDSHS) is the primary agency for protecting human health and safety, including seafood safety.
The United States Army Corps of Engineers (COE) and the United States Coast Guard (USCG) are responsible for establishing maritime navigation standards and the identification, marking, and mitigation of navigational hazards.
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. In general, the new rules prescribe the conditions under which marine species may be introduced into an offshore aquaculture facility without damaging surrounding water and marine resources.
It is the intent of this adopted rulemaking that individuals applying to the various agencies for their necessary permissions be able to do so simultaneously so that the many needed reviews, inspections, and other activities can be accomplished in the minimum amount of time. However, the rule also specifies that all of these other permissions be obtained before the permit is approved by TPWD.
New §57.251, concerning Definitions, establishes terms necessary to carry out the provisions of the subchapter and allows for efficient enforcement and administration. The definition of 'aquaculture' is necessary to broadly describe one activity regulated by the subchapter. The definition of 'aquatic plant' is necessary to delineate the types of vegetative life which, when introduced into public waters, are subject to regulation under the subchapter. The definition of 'disease condition' is necessary to create an unambiguous criterion for departmental actions to protect aquatic animal life in public waters. The definition of 'enclosure' is necessary to create a term for the specific infrastructure within which aquaculture may take place and to which certain provisions of the subchapter apply. The definition of 'fishing' is necessary to clearly distinguish the recreational pursuit, take, and possession of aquatic life from activities undertaken for capture of aquatic life for commercial purposes within an aquaculture facility. The definition of 'native species' is necessary because the proposed rules do not allow for the introduction or cultivation of exotic species; therefore, the rule must define native species. The definition of 'offshore aquaculture facility' is necessary to acknowledge that, in addition to the enclosures where stock is kept, there may be ancillary equipment and structures used in the aquaculture process and to include such infrastructure in the applicability of the subchapter. The definition of 'outside waters' is necessary to identify the broad geographical area in which offshore aquaculture operations are lawful. The definition of 'shellfish' is necessary to create a description of a class of organisms subject to regulation under this subchapter if cultivated. The definition of 'stock' is necessary to create a term that differentiates native species of fish that are possessed under a permit from native species that are the property of the state. The definition of 'waste' is necessary to create a term for the purposes of regulating the biological effluvia produced within an offshore aquaculture facility.
Adopted new §57.252, concerning General Provisions, restricts permit issuance to individual;, restricts offshore aquaculture to specific geographic areas and genetically indigenous stock; establishes the period of validity for permits issued under the subchapter; and delineates the conditions under which the department may order the removal of stock from an offshore aquaculture facility. The adopted rule restricts the issuance of permits to named individuals only, which was determined to be the most efficient method of administering, monitoring, and enforcing the subchapter. The rule limits the operational area for permitted activities to a specific Outer Continental Shelf (OCS) Block. The provision is necessary for effective biological and compliance monitoring and to delimit the geographical boundaries of permitted operations. The department does not intend for an offshore aquaculture permit to authorize the operation of an unlimited number of enclosures. The intent of limiting permitted activities to an OCS block is to provide enough space for viable operation of an offshore aquaculture facility while at the same time limiting the dispersion of permitted activities in order to provide for efficient monitoring efforts. The department has determined that it is necessary to restrict aquacultural cultivation in offshore waters to fish, shellfish, and aquatic plants that are genetically descended from species native to the Gulf of Mexico. The marine life in the Gulf of Mexico has evolved over many thousands of years in response to the unique environmental characteristics. The introduction of individuals from the same species but from another part of the world is, in effect, the introduction of exotic alleles that may have the potential to interact with native species in unpredictable ways, affecting life-cycle factors such as hardiness, reproductive potential, food competition, and biodiversity. Therefore, the department has chosen to use a precautionary approach to management of offshore aquaculture facilities. By restricting aquaculture activities to native organisms, the potential for unforeseen genetic consequences is reduced and probably eliminated.
Adopted new §52.252(c) establishes the period of validity for both the one-time introduction and offshore aquaculture permits issued under the subchapter. Permits for one-time introductions will be valid for 60 days or until the introduction is completed, whichever occurs first. The 60-day period is believed to provide sufficient time for a permittee to conduct the activities authorized under a permit.
Adopted new §52.252(d)(3) establishes that an offshore aquaculture permit is valid for a period of up to five years from the date of issuance. Adopted new §52.252(d)(4) authorizes the department to inspect enclosures, infrastructure, and vessels used to engage in offshore aquaculture. The provision is necessary to ensure compliance with applicable statutes, regulations, and permit provisions.
Adopted new §52.252(d)(5) authorizes the department to order the removal of stock from an offshore aquaculture facility upon determining the existence of disease conditions or upon certain enforcement actions by a state or federal agency that result in revocation or suspension of a permit, approval, or clearance. Offshore aquaculture inherently implicates an array of regulatory arenas such as environmental quality and navigation. As part of the application process set forth in §57.253, concerning Permit Application, the department requires proof that the applicant possesses all necessary approvals, clearances, and permits required by other state and federal agencies with regulatory jurisdiction over an aspect of the applicant's prospective operations. Having required such proof as a condition of permit issuance, it follows that revocation or suspension by a regulatory agency of a permit, approval, or clearance would mean the permittee no longer satisfies the department's requirements for permit issuance. The department believes that, in some cases, it might be necessary to order the removal of stock and the cessation of operations in order to protect native populations.
Adopted new §52.252(e) establishes notification requirements for the removal of fish from a facility, the discovery of a disease condition within a facility or damage to a facility, and requires all equipment and facility infrastructure to be removed with 10 days of permit expiration or termination.
Adopted new §57.253(a) - (c) set forth the requirements for and content of an application for a permit issued under the subchapter. Adopted new §57.253(a) establishes a minimum time period of 30 days for the department to review the application for an introduction permit that authorizes a one-time release in the waters of the state. Adopted new §57.253(c)(1) establishes a requirement that the application for an offshore aquaculture facility be received at least 90 days prior to any proposed deployment of an enclosure or aquaculture facility. The 30-day period is the minimum time needed for the department to evaluate a one-time release proposal. Ninety days are necessary to review an offshore aquaculture proposal given the greater complexity of the application and need for review of all operational aspects of the facility. With respect to the information required on an application for an offshore aquaculture permit, subsection (c) will require the following types of information to be submitted: evidence of compliance with other laws and rules; particulars of facility design; timelines for proposed activities; contingency plans; and evidence that all stock are or will be native Gulf of Mexico genotypes. The department believes it would be inadvisable to issue an offshore aquaculture permit to any person not in compliance with all other applicable laws. A discussion of the rationale for this occurs earlier in this preamble.
Adopted new §57.253(c) also requires an application for an offshore aquaculture permit to include a clear and concise facility design and operating plan, including plans and schematics, sufficient to prevent the escape of stock or the entry into the facility of wild aquatic animal resources and to protect wildlife resources from disease transmission, waste discharge, and injurious interaction with enclosures and infrastructure. These provisions are necessary to ensure that practical measures have been taken to ensure that wildlife resources outside the proposed facility are protected from negative effects resulting from flaws in design and planning. The three areas of greatest concern are interaction between wild and cultivated populations, water quality impacts, and physical contact by wild organisms with enclosures and infrastructure. The department believes that it is reasonable to require design and planning sufficient to mitigate preventable conditions that could lead to unwanted developments with respect to wildlife resources and to contemplate contingency actions for implementation in the event that contingency action plans must be put into action. The subsection also requires an application to include a timeline for proposed activities, which is necessary for the department to monitor and evaluate offshore aquaculture activities and to ensure that unauthorized releases or augmentations do not occur. For instance, if a permittee's application indicates that one thousand fingerlings are to be introduced to an enclosure on a certain date and to be harvested three months later, the department would be able to determine at any point in time whether all activities had taken place as authorized.
Adopted new §57.253(c)(2)(C) requires an application to include a plan for the removal of all stock from a facility. As previously discussed, the nature of offshore aquaculture creates the potential for the existence of circumstances that could require the removal of stock, for instance, the discovery in an enclosure of a pathogen that threatened wildlife resources. The department believes it is sensible and prudent to require a contingency plan for such an event. The subsection also requires an application to include a statement that the ancestry of all stock will be exclusively from Gulf of Mexico genotypes. The rationale for this requirement has been discussed earlier in this preamble. The subsection also requires a facility inspection to be performed by the department as a prerequisite for permit issuance. The provision is necessary in order to ensure that enclosures and associated infrastructure are consistent with the description and depictions contained in the permit application and that the facility is anchored appropriately.
Adopted new §57.254, concerning Permit Denial, prescribes the conditions under which the department would automatically refuse to issue or renew a permit or refuse to authorize an amendment to a permit. The adopted section is necessary because there are certain circumstances under which the department would not authorize new or continued activities, such as a proposed activity that is inconsistent with the department's stocking policy or management objectives or, in the case of an offshore aquaculture permit, an application that is not complete. The department's oversight of introductions to the wild is delineated by rule in the department's stocking policy (31 TAC Chapter 52). Additionally, various management plans and research activities are required by statute for various marine species (Texas Parks and Wildlife Code, §66.018 (Crabs); §66.217 (Finfish); §76.301 (Oysters); §77.007 (Shrimp)), and represent the department's efforts to execute its duties to protect and manage wildlife resources. Clearly, the rules are consistent with the overall direction and tenor of these efforts. Thus, the provisions of this section constitute a reasonable safeguard for wildlife resources.
Adopted new §57.255, concerning Permit Renewal, establishes the process by which a person could renew an offshore aquaculture permit. The adopted rule requires that the applicant for renewal have been in compliance with the provisions of the subchapter for the one-year period prior to application for renewal and that the facility be in compliance with all applicable standards. Additionally, the adopted section stipulates that the department will not renew an expired permit. The adopted rule is necessary to provide for the operation of an offshore aquaculture facility on a year-to-year basis without interruption, provided the applicant and the facility are in compliance with all applicable laws and regulations.
Adopted new §57.256, concerning Permit Amendment, prescribes the process for amending an existing permit to allow for changes in operation or stock. The amendment is necessary because any type of animal husbandry is by nature a dynamic process subject to changes; therefore, the department desires to provide a mechanism by which a permittee may adjust or alter a facility or stock within a facility, provided the changes do not conflict with the provisions of the subchapter.
Adopted new §57.257, concerning Reporting and Recordkeeping, requires offshore aquaculture permittees to maintain records of all stock introduced or removed and submit an annual report to the department. The adopted rule also requires permittees to furnish such records upon request of a department employee acting within the scope of official duties. The adopted rule is necessary to allow the department to monitor offshore aquaculture activities.
Adopted new §57.258, concerning Prohibited Acts, sets forth general and specific actions and conditions that are prohibited. The adopted section makes it unlawful to violate a condition of a permit. The department reasons that, when a permit is issued to an individual, it is under the expectation that the permittee understands and intends to obey all applicable legal provisions. The provision is necessary to explicitly acknowledge that expectation. The adopted section also prohibits the addition or removal of stock without at least three days' advance notice to the department. The provision is necessary to allow the department to monitor activities involving the actual transfer of live fish, shellfish, or aquatic plants to or from an offshore aquaculture facility. The department believes that the three-day requirement is reasonable.
Adopted new §57.259, concerning Violations and Penalties, prescribes the potential penalty for a violation of the subchapter or a provision of a permit issued under the subchapter. The adopted section is necessary to stipulate the punishment for conviction for a violation of the subchapter.
Comments made by the public concerning the proposed rules were presented to the Texas Parks and Wildlife Commission. Two public hearings were held October 17 and 19, 2006, in addition to the hearing at the Texas Parks and Wildlife Commission meeting on November 2, 2006. The department received comments from a total of nine individuals on the proposed regulations, seven were in support of the proposal and two were opposed.
Two of the commenters suggested the following changes be made to the proposal before adoption:
COMMENT: One individual commented on a number of issues related to deadlines and permit validity and suggested the sections dealing with these issues were confusing and in need of reorganization.
AGENCY RESPONSE: The agency agrees that the proposed rule may have been confusing and responds by reorganizing §57.252, concerning General Provisions, so that there is a clearer distinction between provisions that apply to offshore aquaculture and those that apply to one-time releases into public waters.
COMMENT: One individual commented by stating that having a permit valid only for one year at a time would preclude a successful venture because of the difficulty of obtaining needed financing from lending institutions that could not be assured that the venture would persist long enough to repay loans.
AGENCY RESPONSE: The agency agrees with the comment and responds to the comment by amending the proposal at §57.252(d)(3) to allow a permit to be issued for a period of time not to exceed five years.
COMMENT: One individual commented by stating that restricting the definition of "native species" to species found in the Gulf of Mexico without qualifiers would provide no real protection from individuals that might escape an enclosure and would be prohibitive for a facility starting up for the first time.
AGENCY RESPONSE: The agency disagrees with the comment and responds that the department has determined that it is necessary to restrict aquaculture in offshore waters to fish, shellfish, and aquatic plants solely originating or descended from individuals originating from the Gulf of Mexico due to genetic concerns. The marine life in the Gulf of Mexico has evolved over many thousands of years in response to the unique environmental characteristics found within the Gulf of Mexico. The introduction of individuals of the same species but from another part of the world is, in effect, the introduction of exotic genotypes that will have the potential to interact with the native adapted genotypes in unpredictable ways. Genetic introgression of exotic alleles into the native adaptive gene-complexes may negatively alter life-cycle factors such as hardiness, reproductive potential, food competition, and genetic biodiversity of the native population. Therefore, the department has chosen to use a precautionary approach to management of offshore aquaculture facilities. By restricting aquaculture activities to organisms solely originating or descended from individuals originating from the Gulf of Mexico, the potential for unforeseen genetic consequences is reduced and probably eliminated. No changes were made as a result of the comment.
COMMENT: One individual commented by stating that defining a "disease condition" as existing by reaching a 5% death loss was too broad a definition and should be changed.
AGENCY RESPONSE: The agency disagrees with the comment and responds that the definition is very concise and unambiguous. The threat of a disease that might be introduced, incubated, and dispersed by individuals in an enclosure to wild individuals in adjacent waters is a possibility. While introduction of a disease is more or less instantaneous, numbers of incubating individuals and dispersal rates of the disease both accelerate geometrically with the passage of time. It is, therefore, important that potentially infectious individuals be removed immediately from enclosures in open water and returned only when they are found not to be contagious. No changes were made in response to the comment.
COMMENT: One individual commented by stating that it was not fair to require the depopulation of a "facility" if a disease condition existed in only one pen and this should be changed.
AGENCY RESPONSE: The agency disagrees with the comment and responds that the definition was intended to apply to a single enclosure over a specific amount of time and that intent should have been clear from the language of the rule itself. The rules also indicate that the department "may" order the removal upon determination that a disease exists. The department has some discretion based on the type and extent of disease and will make a determination on a case-by-case basis. No changes were made in response to the comment.
COMMENT: One individual commented by stating that the 5 circumstances that require amendment to a permit were unnecessary, should be handled in a more informal manner than formal amendment, and would result in many amendments.
AGENCY RESPONSE: The agency disagrees with the comment and responds that the department needs to have a formal process for review of changes to the permit. This allows the department to review the change/alteration in the previous plan to determine whether the amendment is consistent with the management policies and objectives of the department's management of coastal resources. No changes were made in response to the comment.
The repeals 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; §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.
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 March 22, 2007.
TRD-200701137
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Effective date: April 11, 2007
Proposal publication date: September 29, 2006
For further information, please call: (512) 389-4775
The new sections 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; §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.
§57.251.Definitions.
The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.
(1) Aquaculture--The business of producing and selling cultured species raised in private facilities.
(2) Aquatic plant--All plants whose seeds germinate in either the water phase or the substrate of a body of water and which must spend part of the life cycle in water (Reid, G.K., and R.O. Wood 1976, Ecology of Inland Waters and Estuaries).
(3) Disease condition--
(A) The presence of contagious pathogens or injurious parasites known or clinically suspected of constituting a threat to the health of native species of aquatic organisms; or
(B) A mortality rate of five percent or more occurring within a period of seven days in a single enclosure.
(4) Enclosure--A structure in public water that is capable of preventing the escape of the stock confined within it and the entry of aquatic animal life from surrounding waters.
(5) Fishing--Taking or attempting to take aquatic animal life by any means.
(6) Native species--All fish, shellfish, or aquatic plants documented by the department to live, spawn, or reproduce in Texas offshore waters and whose first documented occurrence in Texas offshore waters was not the result of intentional or unintentional importation by man.
(7) Offshore aquaculture facility--All enclosures and associated infrastructure used to produce, hold, propagate, transport, or sell stock under authority of an offshore aquaculture permit.
(8) Outside waters--All the salt water of the state contiguous to and seaward from the shoreline of the state, along the Gulf of Mexico as the shoreline is projected and extended in a continuous and unbroken line, following the contours of the shoreline, across bays, inlets, outlets, passes, rivers, streams, and other bodies of water; including that portion of the gulf of Mexico from the shoreline extending outward three marine leagues (Natural Resources Code §11.012).
(9) Shellfish--Aquatic species of crustaceans and mollusks, including oysters, clams, shrimp, prawns, and crabs of all varieties.
(10) Stock--Native species of fish, shellfish, or aquatic plants intended for use in, being transported to, or contained within an offshore aquaculture facility under the terms of an offshore aquaculture permit.
(11) Waste--As defined in Water Code, §26.001.
§57.252.General Provisions.
(a) A permit issued under this subchapter shall be issued to a named individual only and not in the name of a corporation, company, or other entity.
(b) A permit issued under this subchapter shall not be sold or transferred except with the approval of the department.
(c) A one-time introduction permit, for releases other than those made into an offshore aquaculture facility, is valid for 60 days from the date of issuance or until the permitted introduction has been completed, whichever comes first.
(d) For offshore aquaculture facilities:
(1) An offshore aquaculture permit authorizes permitted activities in a specific Outer Continental Shelf Block.
(2) The offshore aquaculture permit shall be issued only for the cultivation of native species. Upon request the permittee shall provide the form and type of evidence requested by the department that the individuals are:
(A) obtained from the Gulf of Mexico; or
(B) descended solely from individuals obtained from the Gulf of Mexico.
(3) An offshore aquaculture permit shall be valid from the date of issuance until the date of expiration, but for no longer than 5 years after the issuance date.
(4) The department may inspect:
(A) any enclosure or infrastructure used to engage in offshore aquaculture; or
(B) vessel used to transport stock and equipment to and from an offshore aquaculture facility.
(5) The department may order the removal of all stock from an enclosure upon:
(A) a determination that a disease condition exists; or
(B) an enforcement action by a federal or state agency resulting in the suspension or revocation of a clearance, permit, or authorization that is required under §57.253 of this title (relating to Permit Application).
(6) The department may sample stock to determine genetic lineage.
(e) A holder of an offshore aquaculture permit must:
(1) notify the department at least three calendar days prior to the placing of any fish, shellfish, or aquatic plant into public water;
(2) notify the department at least three calendar days prior to removing any fish, shellfish, or aquatic plant from an offshore aquaculture facility;
(3) notify the department immediately upon discovering that a disease condition exists within an offshore aquaculture facility;
(4) notify the department immediately upon determining that an offshore aquaculture facility has been damaged and the threat of the unintentional release of stock exists; and
(5) remove all enclosures and associated infrastructure from public waters within 10 calendar days of permit expiration or revocation.
(f) A permit is not required for any person, while fishing, to place goldfish (Carassius auratus), common carp (Cyprinus carpio), native shrimp, crabs, crawfish and nongame fish into public waters or to immediately release any fish that does not comply with size and bag limits for that species.
(g) An employee of the department acting at the direction of the executive director is exempt from the permit requirements specified by these sections.
§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) approval from the General Land Office to anchor the facility;
(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) An offshore aquaculture permit will not be issued unless the department has conducted an inspection of all enclosures and infrastructure and found such to be consistent with the information provided in the application.
§57.254.Denial.
A permit application, permit renewal, or permit amendment under this subchapter will be denied if:
(1) concerning an application for one time introduction:
(A) the application, renewal or amendment does not meet the requirements of §§52.101 - 52.401 of this title (concerning Stocking Policy); or
(B) the proposed introduction is not consistent with management objectives of the department; or
(2) concerning an application for an offshore aquaculture facility, the application does not contain or inadequately addresses the requirements of §57.253(c) of this title (relating to Permit Application).
§57.256.Amendment.
(a) An offshore aquaculture permit may be amended, provided the applicant:
(1) has complied with all requirements of this subchapter and permit provisions during the one-year period immediately preceding the date of the application for amendment;
(2) has complied with all applicable requirements of §57.253 of this title (relating to Permit Application);
(3) has completed and submitted an application for permit amendment; and
(4) the amendment is not extensive enough to warrant an additional facility inspection. An amendment extensive enough to warrant an additional facility inspection shall be treated as an application for a new permit and the provisions of §57.253 of this title shall apply.
(b) Prior to approval of a permit amendment, no person shall:
(1) introduce new species of stock to a facility;
(2) discontinue any species of stock in a facility;
(3) change the source of stock;
(4) modify methods, procedures, facility design, or facility infrastructure affecting:
(A) the physical components of the facility;
(B) the prevention of escape of stock from the facility; or
(C) the discharge of pollutants from the facility; or
(5) change the physical structure or components of an enclosure.
(c) An application for a permit amendment must be submitted within 10 days of any change in ownership of the facility or stock.
(d) The department will not amend an expired permit.
§57.257.Reporting and Recordkeeping.
(a) An offshore aquaculture permitee shall maintain and keep current an accurate daily record of all stock introduced or removed from each enclosure within a facility, including mortalities.
(b) An offshore aquaculture permitee shall complete and submit an annual report to the department on a form supplied by the department by no later than January 15 of every year.
(c) While performing any permitted activity within or in transit to or from an offshore aquaculture facility, a person must physically possess a legible copy of the offshore aquaculture permit under which the activity is being performed.
(d) The records required by this section shall be made available to the department upon the request of a department employee acting within the scope of official duties.
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 March 22, 2007.
TRD-200701138
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Effective date: April 11, 2007
Proposal publication date: September 29, 2006
For further information, please call: (512) 389-4775