PART 2. TEXAS PARKS AND WILDLIFE DEPARTMENT
CHAPTER 57.FISHERIES
SUBCHAPTER A. HARMFUL OR POTENTIALLY HARMFUL FISH, SHELLFISH, AND AQUATIC PLANTS
The Texas Parks and Wildlife Department proposes the repeal of §57.136, an amendment to §57.113, and new §57.136 and §57.137, concerning Harmful or Potentially Harmful Fish, Shellfish, and Aquatic Plants. The proposed repeal, amendment, and new sections are necessary to establish special provisions for the culture and sale of water spinach.
Under Parks and Wildlife Code, §66.007, no person may import, possess, sell, or place into water of this state exotic harmful or potentially harmful fish, shellfish, or aquatic plants except as authorized by rule or permit issued by the department.
Water spinach (Ipomoea aquatica) is an exotic aquatic plant native to southeast Asia, where it is a popular vegetable crop that has been cultivated for centuries. It is a fast-growing plant that thrives in warm, moist environments. Water spinach is a noxious species in areas where it has escaped containment. Owing to its prolific growth rate, it is a concern because it can infest lakes, ponds and river shorelines, displacing native plants that are important for fish and wildlife, and because it can block drainage structures, it can create ideal breeding environments for mosquitoes.
Water spinach has been classified as a noxious plant by the federal government, and is prohibited in many states. Possession of water spinach was prohibited in Texas until 2005, when the department discovered that southeast Asian immigrants in the Houston area had been growing and selling it undetected for over two decades. The department initiated survey efforts in an effort to determine if water spinach was growing in the wild in the Houston area and concluded that it was not. On that basis, the department in 2006 allowed the possession of water spinach for personal consumption while it developed a risk analysis to determine the potential environmental hazards associated with allowing culture and sale.
The department's risk analysis was completed earlier this year and concluded that water spinach is a low-risk species that can be cultured and sold with little potential for environmental hazard in Texas, provided it is strictly regulated. The proposed rules would implement a regulatory regime to require persons who grow water spinach for any purpose to acquire an exotic species permit issued by the department (in addition to any other permits required by other governmental entities). The proposed rules would establish facilities standards, require facility inspections, impose recordkeeping and reporting requirements, and prescribe processing and packaging standards, including standards for transportation. The intent of this rulemaking is to allow the culture and sale of water spinach without placing onerous administrative and regulatory burdens on consumers, while simultaneously providing a mechanism for the department to identify and monitor the points of origin of water spinach, which is intended to allow the department to react in a timely and effective fashion to protect native ecosystems in the event that water spinach is detected in the wild. To this end, the proposed rules would require only those persons who grow water spinach to obtain an exotic species permit. Persons who purchase water spinach for a commercial purpose would be required only to maintain invoices and sales receipts. Persons who purchase water spinach for personal consumption (e.g., diners, grocery store customers, etc.) would not be required to obtain a permit or maintain records. The proposed rules would be in addition to any other provisions of the department's existing rules governing possession of harmful and potentially harmful exotic aquatic plants.
The proposed amendment to §57.113, concerning Exceptions, would eliminate references to water spinach in subsections (d) and (m), which is necessary to prevent conflicts with proposed new §57.136, which would address all regulatory provisions specific to water spinach.
Proposed new §57.136, concerning Special Provisions--Water Spinach, would establish provisions unique to the issuance of exotic species permits for the culture of water spinach. All other provisions of the subchapter would continue to apply, except where expressly noted.
Proposed new §57.136(a) would set forth general provisions related to the culture of water spinach.
Proposed new §57.136(a)(1) would restrict the application of the section to the culture, possession, transport, sale, re-sale, and transfer of water spinach, which is necessary because the department does not intend for the section to apply to any other species of harmful or potentially harmful fish, shellfish, or aquatic plant.
Proposed new §57.136(a)(2) would require any person who grows water spinach for a commercial purpose to obtain an exotic species permit from the department. The proposed new would also define "commercial purpose" as "the act of growing, possessing, or transporting water spinach in exchange for money or anything of value or offering to grow, possess, or transport water spinach in exchange for money or anything of value." The definition is necessary to create a standard for determining the conditions under which an exotic species permit must be obtained. The proposed new paragraph also would create two exceptions under which persons are not required to obtain an exotic species permit.
The first exception, set forth under proposed new §57.136(a)(3), would authorize the possession, purchase, and re-sale of water spinach obtained from a permitted source in Texas or a lawful out-of-state source, provided the water spinach is processed and packaged in accordance with all applicable food processing and handling laws; exotic species invoices and sales receipts are maintained for two years; any water spinach sold or transferred is sold or transferred to a consumer (defined as a person obtaining water spinach for personal consumption); and any water spinach not sold, transferred, or consumed is disposed of in such a way as to prevent release into the environment. As mentioned previously, the department's intent is to provide protection to the environment while minimizing regulatory burdens on people involved in water spinach commerce and consumers. For persons who obtain water spinach from a permitted grower or lawful out-of-state source for a commercial purpose, the department believes it is sufficient to require only that applicable food processing and handling laws be followed, that sales receipts and invoices be retained for a period of two years, and that excess or unwanted water spinach be properly disposed of. The need to follow legal requirements for food safety is self-evident. The proposed requirement to maintain invoices and sales receipts is necessary to provide a way for the department to follow a chain of possession to determine that water spinach being offered for sale in the state comes from known, regulated sources. The proposed requirement to safely dispose of unused or unsold water spinach is necessary to ensure that water spinach is not carelessly discarded, which could lead to establishment of populations in the wild.
The second exception, set forth in proposed new §57.136(a)(4), would allow any person to possess water spinach for personal consumption without having to obtain an exotic species permit. The proposed provision is necessary to allow restaurant and grocery store patrons to purchase and possess water spinach as end users.
Proposed new §57.136(a)(5) would require a person who seeks to obtain an exotic species permit for the culture of water spinach to provide a Texas driver's license or identification number and a Social Security number to the department as part of the permit application process. The proposed provision is necessary to establish the legal identity of all persons who culture water spinach so the department can prosecute violators and prevent convicted offenders from obtaining permits under the provisions of proposed new §57.136(g). The department is also required by state and federal law to collect social security numbers from all persons to whom the department issues recreational or commercial permits.
Proposed new §57.136(a)(6) would prohibit the use of water spinach as fodder or forage for animals. The proposed provision is necessary to prevent the establishment of water spinach in the wild. The rules as proposed impose standards that require water spinach to be confined within physical structures or within closed containers, which is necessary because of its potential to grow in the wild if it escapes. Therefore, the feeding of water spinach to animals, particularly in low-lying areas and other areas where water is abundant and occasionally prone to flooding, is obviously a practice that should be prohibited.
Proposed new §57.136(b) would allow persons who hold a valid exotic species permit for the culture of water spinach to designate additional persons to engage in permitted activities under the person's permit. The proposed provision is necessary because a culture operation may involve more than one person. The department does not wish to create a costly administrative structure for itself, nor does it wish to require persons who are employed by permittees to be subject to provisions that the permittee must comply with and that are sufficient for the department's purposes.
Proposed new §57.136(c) would establish facility requirements specific to facilities where water spinach is cultured. The department has determined that although the potential for water spinach to become established in the wild is slight, it is nonetheless reasonable and prudent to establish specific standards to prevent escapement.
Proposed new §57.136(c)(1) would require water spinach to be cultured only in enclosed greenhouses. The proposed provision is intended to isolate production within a physical structure and maintain a sterile zone around the structure, which is necessary to ensure that water spinach is under control at all times.
Proposed new §57.136(c)(2) would require all water spinach plants on a permitted property to be kept free of seeds and flowers at all times. The proposed provision is intended to prevent the natural reproduction of water spinach, because seeds could be easily transported or scattered by accident, which increases the potential for establishment in the wild.
Proposed new §57.136(c)(3) would require all propagation of water spinach to be by cuttings only. As noted in the discussion of proposed new §57.136(2), seeds present a potential risk for establishment in the wild. However, water spinach also reproduces by fragmentation (existing stems can be rooted and will grow readily), so the proposed rule would prohibit propagation by seed and require propagation only by cuttings.
Proposed new §57.136(c)(4) would require water spinach to be cultured only in moist soil. Water spinach can and does grow as a floating plant. The highest risk potential for establishment in the wild is via aqueous transmission. By requiring water spinach to be cultured only in moist soil, the department's intent is to minimize risk of escape as a result of flood events or in areas where there is abundant surface water.
Proposed new §57.136(c)(5) would require that all areas where water spinach is cultured, handled, packed, processed, stored, shipped, or disposed of to be enclosed within a minimum 10-ft buffer zone void of all vegetation. The proposed provision would isolate water spinach within a sterile zone during all stages of handling and shipping, which is necessary to ensure that water spinach is under control at all times.
Proposed new §57.136(c)(6) would require that all handling, packaging, and disposal or water spinach be done at the facility and in a manner to prevent dispersal. The proposed new provision is necessary to minimize the potential for water spinach to escape to the wild.
Proposed new §57.136(c)(7) would require all equipment used to cultivate water spinach to be cleaned of all vegetation prior to removal from a facility. Because water spinach can propagate vegetatively, it is important that equipment that comes into contact with water spinach be cleaned before being taken elsewhere in order to minimize the potential for escape to the wild.
Proposed new §57.136(d) would set forth requirements for the transport and packaging of water spinach.
Proposed new §57.136(d)(1) would define a "package" of water spinach as "a closed or sealed container having a volume of no greater than three cubic feet, accompanied by all required invoices and documentation," and would require that a package contain only water spinach. The department has determined that a maximum package size is necessary to facilitate inspection and verification. The three-cubic-feet standard was selected because it represents a volume that can be readily and easily measured and inspected. The requirement that a package contain only water spinach is necessary because the intent of this rulemaking is to restrict facilities to monoculture production. Allowing facilities to culture and package other types of plants or foodstuffs increases the risk of escape and decreases the department's ability to monitor activities to ensure that water spinach is being handled, processed, and packaged in such a fashion as to minimize escapement. The requirement that each package of water spinach be accompanied by all documentation and invoices is necessary to maintain a chain of custody for law enforcement purposes. Since only the grower is required to obtain a permit, it is necessary for documentation and invoices to remain with water spinach as it proceeds through commerce, giving the department the ability to track water spinach back to a point of origin and verify that it was lawfully grown, processed, and shipped. Absence of documentation and invoices would therefore be evidence that water spinach is unlawfully possessed.
Proposed new §57.136(d)(2) would specify that each package of water spinach be clearly identified, in English, as water spinach. The proposed new provision is necessary to avoid problems with identification of the contents of packages at various points in the chain of commerce. The requirement that the label be in English is necessary because water spinach is known by many different names in various cultures, including many cultures that have ideogrammatic rather than phonetic languages.
Proposed new §57.136(d)(3) would require all water spinach removed from a facility for any reason to be accompanied by a transport invoice and would prescribe the information to be contained on the invoice. The invoice requirement is necessary because only the grower of water spinach is required to obtain a permit. Therefore, the department must have a way to determine that water spinach encountered outside of permitted facilities is lawfully possessed and lawfully grown. By requiring all water spinach removed from a facility to be accompanied by a transport invoice, the department can compare invoice information to the quarterly reports required from the growers to determine whether the water spinach was lawfully cultured.
Proposed new §57.136(e) would prescribe reporting and recordkeeping requirements for persons culturing water spinach under an exotic species permit issued by the department.
Proposed new §57.136(e)(1) would require permittees to maintain an accurate daily record of all sales and transfers of water spinach. The proposed new provision is necessary to ensure that all activities involving the sale or movement of water spinach are recorded in real time. By requiring daily recordkeeping, the department intends to avoid situations in which verification of the origin of water spinach encountered in places other than a permitted facility hinge on memory or hearsay.
Proposed new §57.136(e)(2) would require transport invoices to be retained by both the shipper and receiver of water spinach for a period of two years from the date of delivery. The proposed new provision is necessary to facilitate investigations when they are necessary. The two-year period was selected because that is the statute of limitations for an offense under the subchapter.
Proposed new §57.136(e)(3) would require all documents and records required by the section to be furnished upon request during normal business hours to a department employee acting within the scope of official duties. The proposed new provision is necessary because the department must be able to review records and documents to enforce the provisions of the section, to conduct investigations when necessary, and to verify that permittees are in compliance with the provisions of the subchapter.
Proposed new §57.136(f) would require a permittee to be financially responsible for the costs of detecting, controlling, and eradicating water spinach that escapes from the permittee's facility. The proposed new provision is necessary because the department believes that since water spinach has the potential to become an environmental nuisance, a person who has been entrusted with the privilege of culturing and handling water spinach under a permit should be financially liable for remediating an escapement from a facility.
Proposed new §57.136(g) would provide that a final conviction of a violation of the section is grounds for the department to deny further permit issuance for a period of five years from the date of the convictions. The proposed new provision is necessary because the department believes that a person who has demonstrated disregard for rules designed to protect the natural resources of this state should be prevented from obtaining the privilege of a permit for a reasonable amount of time, which is also intended to function as a deterrent to unscrupulous activities and carelessness.
Proposed new §57.136(h) would stipulate that no person is relieved of the responsibility of complying with other applicable provisions of federal, state, or local laws. The proposed new provision is necessary to clearly state that a permit issued under the subchapter is applicable only to activities governed by the Parks and Wildlife Code.
The proposed repeal of current §57.136, concerning Penalties, would relocate the provisions of that section to proposed new §57.137, which is necessary in order to create room for proposed new §57.136.
Proposed new §57.137, concerning Penalties, would reiterate the statutory penalties for a violation of the subchapter.
Mr. Earl Chilton, Invasive Species Program Director, has determined that for each of the first five years that the rules as proposed are in effect, there will be no fiscal implications to state or local government as a result of enforcement or administration of the rules.
Mr. Chilton also has determined that for each of the first five years the rules as proposed are in effect, the public benefit anticipated as a result of enforcing or administering the rule as proposed will be the ability of persons to engage in the culture and sale of water spinach under rules that will minimize the potential of environmental damage.
Under the provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses and micro-businesses. The department has determined that there will be no direct economic effect on small or micro-businesses or persons required to comply as a result of the proposed rules, because it is unlawful at the current time to culture or possess water spinach for a commercial purpose. Accordingly, the department has not prepared a regulatory flexibility analysis under Government Code, Chapter 2006. For the same reason, there will be no adverse economic effect on persons required to comply with the rules as proposed.
The department has not drafted a local employment impact statement under the Administrative Procedures Act, §2001.022, as the agency has determined that the rules as proposed will exert a positive impact on local economies.
The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rules.
Comments on the proposed rules may be submitted to Mr. Earl Chilton, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4652; e-mail: earl.chilton@tpwd.state.tx.us.
31 TAC §§57.113, 57.136, 57.137
The amendment and new rules are proposed under the
authority of Parks and Wildlife Code, §66.007, which prohibits
the importation, possession, sale, or placement into water of this
state exotic harmful or potentially harmful fish, shellfish, or aquatic
plants except as authorized by rule or permit issued by the department
and requires the department to make rules to carry out the provisions
of that section.
The proposed amendment and new rules affect Parks and Wildlife
Code, Chapter 66.
§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
[
(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 Harmful or
Potentially Harmful 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, 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 [
(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.
§57.136.Special Provisions--Water Spinach.
(a) General provisions.
(1) The provisions of this section apply only to the
culture, possession, transport, sale, re-sale, and transfer of water spinach.
(2) Except as provided in paragraphs (3) and (4) of
this subsection, no person may grow water spinach, or possess or transport
water spinach for a commercial purpose, unless that person possesses
a valid exotic species permit issued by the department for that purpose.
A commercial purpose is defined as the act or intent of growing, possessing,
or transporting water spinach in exchange for money or anything of
value or offering to grow, possess, or transport water spinach in
exchange for money or anything of value.
(3) No permit issued under this section is required
to purchase or obtain water spinach for sale or re-sale, provided:
(A) the water spinach is purchased or obtained from
a lawful out-of-state source or person legally authorized under this
section to grow water spinach;
(B) the water spinach is processed and packaged in
accordance with applicable local, state and federal laws governing
the processing and handling of food for sale to the public;
(C) copies of all invoices and receipts are retained
for a period of two years following the date of purchase or receipt;
(D) the water spinach is sold or transferred directly
to a consumer (defined as a person purchasing or obtaining water spinach
for personal consumption); and
(E) water spinach that is not sold, transferred or
consumed is disposed of in such a manner as to prevent the dispersal
of water spinach beyond the establishment or location where it is
sold or stored.
(4) No permit issued under this section is required
to purchase or possess water spinach for personal consumption, provided
the water spinach was lawfully purchased or obtained.
(5) In addition to the requirements of §57.117
of this title (relating to Exotic Species Permit: Application Requirements),
an applicant for an exotic species permit under this section shall
submit a Texas driver's license or identification number issued in
the applicant's name and the applicant's Social Security number as
part of the application process.
(6) The use of water spinach to feed domestic or exotic
livestock is prohibited.
(b) Subpermittees. A permittee may designate additional
persons to conduct permitted activities under the permittee's exotic
species permit as subpermittees. A subpermittee must be named on the
exotic species permit issued by the department, and the permittee
shall furnish the full legal name, physical address, Texas driver's
license or identification number, and Social Security number for each
subpermittee on the original application for an exotic species permit
and any amendments to an exotic species permit.
(c) Facility requirements. In addition to the provisions
of this subchapter applicable to a facility where harmful or potentially
exotic fish, shellfish, or aquatic plants are cultured, the following
provisions apply to the culture of water spinach:
(1) water spinach shall be cultured only in enclosed greenhouses;
(2) all water spinach plants on the property where
the facility is located must be free of flowers and seeds at all times;
(3) propagation shall be by cuttings only; seeds are prohibited;
(4) water spinach shall be grown in only in moist soil;
aqueous media are prohibited;
(5) a buffer area of at least 10 feet in width and
void of all vegetation must be maintained around the perimeter of
all areas where water spinach is cultured, handled, packed, processed,
stored, shipped, or disposed of;
(6) all handling, packaging, and disposal of water
spinach by a permittee must be done at the permitted facility and
in such a manner as to prevent dispersal; and
(7) all equipment used in the cultivation of water
spinach must be cleaned of all vegetation prior to being removed from
a facility.
(d) Transport and packaging requirements.
(1) All water spinach transported from a facility shall
be packaged in compliance with this section. A package is defined
as a closed or sealed container having a volume no greater than three
cubic feet, accompanied by all required invoices and documentation.
A package shall contain water spinach only.
(2) Each package of water spinach shall be identified
by a label placed on the outside of the package. The label must be
clearly visible and shall bear the legend "Water Spinach" in English.
(3) No person may remove water spinach from a permitted
facility for any reason unless the water spinach is accompanied by
a transport invoice. A transport invoice shall contain the following
information, legibly written:
(A) a unique invoice number (invoice numbers shall be sequential);
(B) date of shipment;
(C) name, address and phone number of shipper;
(D) name, address and phone number of receiver;
(E) if applicable, the aquaculture license number of
the shipper and receiver; and
(F) if applicable, the exotic species permit number
of the shipper and receiver.
(e) Reporting and recordkeeping requirements.
(1) A person permitted under this section to grow water
spinach must maintain an accurate daily record of all sales and/or
transfers of water spinach from each permitted facility and submit
quarterly reports to the department on a form supplied by the department.
The quarterly reports required by this paragraph are due by September
15, December 15, March 15, and June 15 of each year.
(2) A copy of the transport invoice shall be retained
by both the shipper and the receiver for a period of two years from
the date of delivery of the shipment.
(3) All records and documents required by this section
shall promptly be provided upon request during normal business hours
to any department employee or peace officer acting within the scope
of official duties
(f) Remediation. In the event that water spinach escapes
or is improperly or unlawfully dispersed from a facility, the permittee
is responsible for all costs associated with the detection, control,
and eradication of free-growing water spinach resulting from such
escape or dispersal.
(g) A final conviction for a violation of this section
is grounds for the department to deny issuance of a permit under this
section for a period of five years from the date of conviction. The
department will not authorize the designation of any person as a subpermittee
if that person has been convicted of a violation of this section within
the five-year period preceding a request for subpermittee status.
(h) Nothing in the section shall be construed to relieve
any person of any other applicable requirements of federal, state,
or local law.
§57.137.Penalties.
The penalties for violation of this subchapter are prescribed
by Parks and Wildlife Code, §66.012 and Agriculture Code, §134.023.
This agency hereby certifies that the proposal has
been reviewed by legal counsel and found to be within the agency's
legal authority to adopt.
Filed with the Office of the Secretary of State on July 13, 2009.
TRD-200902838
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Earliest possible date of adoption: August 23, 2009
For further information, please call: (512) 389-4775
31 TAC §57.136
(Editor's note: The text of the following section proposed
for repeal will not be published. The section may be examined in the
offices of the Texas Parks and Wildlife Department or in the Texas
Register office, Room 245, James Earl Rudder Building, 1019 Brazos
Street, Austin, Texas.)
The repeal is proposed under the authority
of Parks and Wildlife Code, §66.007, which prohibits the importation,
possession, sale, or placement into water of this state exotic harmful
or potentially harmful fish, shellfish, or aquatic plants except as
authorized by rule or permit issued by the department and requires
the department to make rules to carry out the provisions of that section.
The proposed repeal affects Parks and Wildlife Code, Chapter 66.
§57.136.Penalties.
This agency hereby certifies that the proposal
has been reviewed by legal counsel and found to be within the agency's
legal authority to adopt.
Filed with the Office of the Secretary of State on July 13, 2009.
TRD-200902839
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Earliest possible date of adoption: August 23, 2009
For further information, please call: (512) 389-4775
SUBCHAPTER A. STATEWIDE OYSTER FISHERY PROCLAMATION
31 TAC §58.11, §58.21
The Texas Parks and Wildlife Department proposes
amendments to §58.11, concerning Definitions, and §58.21,
concerning Taking or Attempting to Take Oysters from Public Oyster
Beds: General Rules.
The proposed amendment to §58.11 would implement the provisions
of Senate Bill 2379, enacted by the most recent session of the Texas
Legislature, which amended Parks and Wildlife Code, Chapter 76, to
add definitions for "barrel of oysters,'' "natural oyster bed,'' and
"open season.'' The proposed amendment would add those definitions
to the current rule. The proposed amendment also would replace references
to the Texas Department of Health Seafood Safety Division, which has
been reorganized and renamed, with references to the Texas Department
of State Health Services, which is the state agency responsible for
health certification of shellfish.
The proposed amendment to §58.21 would close public oyster
reefs in the East Bay Approved Area in Galveston Bay for two harvest
seasons, which will allow for oyster habitat to repopulate with oysters
and for those oysters to reach market size. Private oyster leases
would not be affected by the closure. The proposed amendment also
would replace a reference in subsection (c) to the Texas Department
of Health Seafood Safety Division, which has been reorganized and
renamed and is now the Texas Department of State Health Services.
The Texas Department of State Health Services is the state agency
responsible for health certification of shellfish.
Under Parks and Wildlife Code, §76.033, the department is
required to specify the exact area of beds or reefs from which oysters
may be taken. Additionally, Parks and Wildlife Code, §76.115,
authorizes the commission to close an area to the taking of oysters
when the commission finds that the area is being overworked or damaged
or the area is to be reseeded or restocked. Under Parks and Wildlife
Code, §76.116, oysters cannot be taken from an area that has
been closed by the Department of State Health Services (DSHS). DSHS
currently allows the harvest of oysters in approved areas of Galveston
Bay and the department by permit regulates that harvest.
A pre-Hurricane Ike site assessment showed that the proposed closure
area of East Bay, located within the Galveston Bay Complex (made up
of West Bay, Trinity Bay, Upper Galveston Bay, East Bay, and Lower
Galveston Bay), contained 2,585 productive acres of oyster reef habitat,
of which 1,758 acres were public reefs. The remaining 827 acres were
contained within 15 private lease sites, controlled by four leaseholders.
The last complete pre-Hurricane Ike harvest season for public reefs
(November 1, 2007 - April 30, 2008) and private lease reefs (September
1, 2007 - August 31, 2008) in East Bay showed that East Bay accounted
for 19% (691,964 lbs.) of coastwide oyster harvest and 25% of total
oyster harvest from the Galveston Bay Complex. The 15 private lease
sites located within the proposed closure area accounted for 45% (311,010
lbs.) of all oysters harvested from East Bay. Total ex-vessel values
(the value of the oysters landed) during that season totaled $2.4
million, 20% of the coastwide value of oyster landings.
When Hurricane Ike struck the Texas gulf coast region on September
13, 2008, it caused extensive damage to the oyster reef habitat in
East Bay. The damage was mainly caused by siltation on the reefs and
the deposition of sediment on reef material. This siltation does not
allow for spat (juvenile oysters) to set on the reef and begin the
process of oyster reef repopulation. Sidescan sonar surveys conducted
by department staff indicated an approximately 50-60% loss of oyster
habitat in Galveston Bay due to heavy sedimentation/siltation and
debris over consolidated reefs. The impact was greatest in East Bay,
where over 80% of oyster habitat was lost.
In order to repopulate the reefs in East Bay, the department has
begun a restoration effort on approximately 20 acres in East Galveston
Bay. This effort involves placing additional cultch (reef) material
on damaged areas, allowing spat to attach to the material so that
restoration can begin. A portion of the 20 acres will be set aside
as a research reef. Total oyster reef area permitted for this effort
is 350 acres.
The department has determined that the reefs must be closed to
harvest for at least two years in order to repopulate the public oyster
reefs in East Bay and allow oysters to reach market size.
Robin Riechers, Director of Science and Policy, has determined
that for each of the first five years that the proposed rules will
be in effect, there will be no fiscal implications to state or local
governments as a result of administering or enforcing the proposed
rules.
Mr. Riechers also has determined that for each of the first five
years the rules as proposed are in effect, the public benefit anticipated
as a result of enforcing or administering the rules as proposed will
be rules that accurately reflect statutory intent and rules that lead
to increased oyster production by repopulating damaged public oyster
reefs and allowing those oysters to reach market size.
Under the provisions of Government Code, Chapter 2006, a state
agency must prepare an economic impact statement and a regulatory
flexibility analysis for a rule that may have an adverse economic
affect on small businesses and micro-businesses. As required by Government
Code, §2006.002(g), the Office of the Attorney General has prepared
guidelines to assist state agencies in determining a proposed rule's
potential adverse economic impact on small businesses. Those guidelines
state that an agency need only consider a proposed rule's "direct
adverse economic impacts'' to small businesses and micro-businesses
to determine if any further analysis is required. For that purpose,
the department considers "direct economic impact'' to mean a requirement
that would directly impose recordkeeping or reporting requirements;
impose taxes or fees; result in lost sales or profits; adversely affect
market competition; or require the purchase or modification of equipment
or services.
The department has determined that there will be adverse economic
effects on small businesses, microbusinesses, and persons required
to comply with the amendments as proposed; however, those effects
will be minimal as a result of factors unrelated to the rulemaking.
The department has determined that most if not all businesses affected
by the proposed rules qualify as small or microbusinesses.
The rules as proposed would prohibit the commercial harvest of
oysters from public oyster reefs in the East Bay of Galveston Bay.
Since it is unlawful to harvest oysters for a commercial purpose without
having acquired a commercial oyster fisherman's license from the department,
the proposed rules affects only those persons who hold a current commercial
oyster fisherman's license. The department requires commercial oyster
fisherman to report oyster catch by location, weight, and selling
price. During the most recent oyster season (November 1, 2008 - April
30, 2009), 22 licensed commercial oystermen reported landing oysters
taken from public reefs in the area proposed for closure. Using the
same data, the dollar value of the annual catch from the area proposed
for closure ranged from $70,768 to $564, with an average value of
$28,031.72. Therefore, the maximum adverse economic impact of the
rules would be a revenue loss of $70,768, the minimum adverse economic
effect would be a loss of $564, and the average loss would be $28,031.72.
The analysis above does not take into account the effects of Hurricane
Ike. Because Hurricane Ike destroyed more than 80% of the oyster reef
habitat in East Bay, a viable commercial fishery in that location
is a practical impossibility at the present time and for the immediate
future. Allowing continued harvest in the damaged area would prolong
and perhaps negate recovery of the fishery to pre-hurricane levels.
It is a certainty that if the area were to remain open to oyster harvest,
there would be a severe reduction in revenue from oyster catch. Therefore,
analyzing the adverse economic impact of the rules on small and microbusinesses,
based on an 80% reduction in harvest, the department estimates that
the maximum adverse economic impact to small and microbusinesses affected
by the rules would be a revenue loss of $14,153.60, the minimum adverse
economic impact would be a loss of $112.80, and the average loss would
be $5,606.34. The department acknowledges that an 80% reduction in
habitat does not correlate exactly to an 80% reduction in harvest,
but it provides an estimate of loss that probably underestimates harvest
reduction and profits, since more effort would be required to find
fewer oysters.
Other than the closure of the East Bay, the proposed rules will
not impose additional recordkeeping or reporting requirements; impose
taxes or fees; adversely affect market competition; or require the
purchase or modification of equipment or services.
The department is considering regulatory options other than the
closure of public oyster reefs, including the implementation of seasons
and bag limits, means and methods requirements, and the implementation
of individual quotas for collection. The rules as adopted may reflect
one or more of these approaches as a method of reducing or eliminating
impacts to small and microbusinesses while still accomplishing the
department's goals of implementing regulations to repopulate oyster
reefs in the East Bay of Galveston Bay.
The department has determined that the proposed rules will have
very little impact upon local employment at the macro or micro level
and hence an insignificant impact upon local economies in the Galveston
Bay geographical area. The department has determined that the direct
employment impact of the proposed rules in this area will to varying
degrees affect a total of 22 licensees who reported harvesting oysters
in East Bay. However, because approximately 80% of the oyster populations
in East Bay were destroyed by Hurricane Ike, the fishery there for
all practical commercial purposes ceases to exist. The department
notes that the direct employment impacts of the proposed rules will
be positive over time, as the proposed rules are intended to restore
a commercially viable fishery.
The department has determined that Government Code, §2001.0225
(Regulatory Analysis of Major Environmental Rules), does not apply
to the proposed rules.
The department has determined that there will not be a taking of
private real property, as defined by Government Code, Chapter 2007,
as a result of the proposed rules.
The department has determined that the proposed rules are in compliance
with Government Code, §505.11 (Actions and Rules Subject to the
Coastal Management Program) and §505.22 (Consistency Required
for New Rules and Rule Amendments Subject to the Coastal Management
Program).
Comments on the proposal may be submitted to Jeremy Leitz, Texas
Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas
78744; (512) 389-4333; email: jeremy.leitz@tpwd.state.tx.us.
The amendments are proposed under Parks and Wildlife
Code, §76.301, which authorizes the commission to regulate the
taking, possession, purchase, and sale of oysters.
The proposed amendments affect Parks and Wildlife Code, Chapter 76.
§58.11.Definitions.
The following words and terms, when used in the subchapter,
shall have the following meanings, unless the context clearly indicates
otherwise.
(1) Approved area--A molluscan shellfish growing area
determined to be acceptable for harvesting of molluscan shellfish
for direct marketing according to the National Shellfish Sanitation
Program (NSSP).
(2) Barrel of oysters--As defined in Parks and Wildlife
Code, §76.001, a barrel of oysters is three boxes of oysters
in the shell or two gallons of shucked oysters without shells [
(3) Conditionally approved area--The classification
of a shellfish growing area determined by the Texas Department
of State Health Services (TDSHS) [
(4) Commission--Refers to the nine member Texas Parks
and Wildlife Department Commission.
(5) Department--Refers to the Texas Parks and Wildlife Department.
(6) Natural oyster bed (reef)--As defined in Parks
and Wildlife Code, §76.051, a natural oyster bed
is an area where [
(7) Open season--A period
during which it is lawful to take oysters.
(8) [
(9) [
(10) [
(11) [
(12) [
(13) [
(14) [
§58.21.Taking or Attempting to Take Oysters from Public Oyster Beds: General Rules.
(a) Seasons and Times.
(1) The open season extends from November 1 of one
year through April 30 of the following year.
(2) Legal oystering hours--sunrise to sunset.
(b) Size Limits and Possession of Undersized Oysters.
(1) Size limit--Legal oysters must be three inches
or larger as measured along the greatest length of the shell.
(2) Oysters which are between 3/4 inch and three inches
in length must be returned to the reef at the time of harvest.
(3) Unculled oysters shall be kept separate from culled oysters.
(4) It is unlawful for any person to take or possess
a cargo of oysters more than 15% of which are between 3/4 inch and
three inches measured from beak to bill or along an imaginary line
through the long axis of the shell.
(c) Area Closures.
(1) There is no open public season for oysters
from areas declared to be restricted or prohibited by the Texas Department
of State Health Services or areas closed by
the Commission.
(2) Until September 1,
2011, the area eastward of a line beginning at the Intracoastal Waterway
Channel Marker 4 at Sievers Cove (29° 25' 51.3'', 94° 42'
46.2''), to Galveston Shellfish Marker A (29° 26' 17.2'', 94°
43' 28.9''), to Galveston Shellfish Marker B (29° 26' 32.7'',
94° 43' 54.5''), to Galveston Shellfish Marker C (29° 26'
57.5'', 94° 44' 35.5''), to Galveston Shellfish Marker D (29°
27' 17.2'', 94° 45' 07.9''), to Galveston Shellfish Marker E (29°
27' 39.0'', 94° 45' 44.0''), to Galveston Shellfish Marker F (29°
28' 01.2'', 94° 46' 20.7''), to Galveston Shellfish Marker G (29°
28' 19.7'', 94° 46' 51.2''), to Galveston Shellfish Marker H (29°
28' 42.0'', 94° 47' 28.0''), to Galveston Shellfish Marker I (29°
29' 13.2'', 94° 46' 59.3''), to Galveston Shellfish Marker J (29°
29' 45.4'', 94° 46' 29.6''), to Galveston Shellfish Marker K (29°
30' 14.6'', 94° 46' 02.8''), to Galveston Shellfish Marker L (29°
30' 45.3'', 94° 45' 34.5''), to the Smith Point Tide Gauge Piling
(29° 31' 17.9'', 94° 45' 04.5'') will be closed to the harvest
of oysters from public oyster bed (reef) during the open public season.
This agency hereby certifies that the proposal
has been reviewed by legal counsel and found to be within the agency's
legal authority to adopt.
Filed with the Office of the Secretary of State on July 13, 2009.
TRD-200902840
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Earliest possible date of adoption: August 23, 2009
For further information, please call: (512) 389-4775
SUBCHAPTER I. DEPREDATION PERMITS
water spinach,] triploid grass 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.
(relating to Health Certification of Exotic Shellfish)
] and as provided by conditions of the permit and these rules.
[(m) Any person may possess
water spinach for personal consumption.]
CHAPTER 58. OYSTERS AND SHRIMP
equal to three boxes (bushels) of oysters in the shell]. The
dimensions of a box are ten inches by 20 inches by 13 1/2 inches.
In filling a box for measurement the oysters may not be piled more
than 2 1/2 inches above the height of the box at the center. [Two
gallons of shucked oysters without shells equals one barrel of oysters
in the shell.]
Texas Department of Health
Seafood Safety Division
] to meet approved area criteria for
a predictable period. The period is conditional upon established performance
standards specified in a management plan. A conditionally approved
area is a restricted area when the area does not meet the approved
growing area criteria.
exists when
] at least five barrels of oysters
are found within 2,500 square feet of any position on a reef
or bed.
(7)] Oyster--That species
of molluscan shellfish identified as the Eastern oyster, Crassostrea
virginica and its subspecies. No other species of molluscan shellfish
are included within this proclamation.
(8)] Possess--The act of
having in possession or control, keeping, detaining, restraining,
or holding as owner, or as an agent, bailee, or custodian of another.
(9)] Private oyster lease--Those
state water bottoms leased from the state for the purpose of producing
oysters to individuals or corporations incorporated under the laws
of this state.
(10)] Prohibited area--The
classification of a shellfish growing area determined by the
TDSHS [Texas Department of Health Seafood Safety Division
] to be unacceptable for the transplanting, gathering for depuration, or harvesting of
shellfish. The only shellfish removal permitted from a prohibited
area is for the purpose of depletion, as defined in the Control of
Harvesting Section of Part 1 of the NSSP.
(11)] Public oyster bed
(reef)--As defined in Parks and Wildlife Code, §76.002, all natural
oyster beds (reefs) are public. All oyster beds not designated as
private are public.
(12)] Restricted area--The
classification of a shellfish growing area determined by the
TDSHS [Texas Department of Health Seafood Safety Division
] to be unacceptable for harvesting of shellfish for direct marketing, but which is acceptable
for transplanting or gathering for depuration. A restricted area may
be closed for transplanting or gathering for depuration when the Seafood
Safety Division determines that the area does not meet the restricted
area criteria established in the NSSP.
(13)] Sack of oysters--A
volume of oysters equivalent to a box that weighs no more than 110
pounds including the sack.
CHAPTER 65. WILDLIFE