TITLE 31. NATURAL RESOURCES AND CONSERVATION

PART 2. TEXAS PARKS AND WILDLIFE DEPARTMENT

CHAPTER 53. FINANCE

SUBCHAPTER A. FEES

DIVISION 1. LICENSE, PERMIT, AND BOAT AND MOTOR FEES

31 TAC §53.13

The Texas Parks and Wildlife Commission in a duly noticed meeting on May 21, 2020, adopted an amendment to §53.13, concerning Commercial Licenses and Permits (Fishing), with changes to the proposed text as published in the April 17, 2020, issue of the Texas Register (45 TexReg 2483). The proposed amendment establishes the fees for cultivated oyster mariculture permits issued under the provisions of Parks and Wildlife Code, Chapter 75. The amendment also corrects a grammatical disagreement in the title of the section.

The change corrects an error in the proposed coefficient for calculating the value of the surcharge imposed for nursery facilities located on public water. As published, that coefficient was $0.023 per square foot. The value that should have been published is $0.010, which represents a proportionally equivalent value of a Cultivated Oyster Mariculture Permit (COMP) for the use of public water.

The fee requirement for cultivated oyster mariculture permits is imposed by another proposed rulemaking published elsewhere in this issue. The application fee for a permit issued under the new subchapter is $200, which represents the cost to the department of the time for a biologist to evaluate a prospective project. The annual fee for a COMP is $450 per acre per year (except for COMPs located on private property), which is the estimated cost to the department for conducting an annual facility inspection, which is a requirement under the United States Food and Drug Administration's National Shellfish Sanitation Program (NSSP). This value was derived by calculating the payroll, vehicle, boat, and travel values for two department technicians to travel to a site, launch a boat, and conduct an inspection. By statute (Parks and Wildlife Code, §75.0105) the department is required to set aside 20 percent of the fees collected for oyster mariculture permits for the cleanup of illegal or abandoned cultivated oyster mariculture equipment and related debris in public water. Thus, the proposed fees incorporate 20 percent of the department's inspection expense, rounding up to the nearest $50, which yields a permit fee of $450. The annual fee for a COMP located on private property is the same as for a nursery facility, because of similar costs to the department for inspections.

The annual fee for a nursery permit is $170 per acre per year, which is the estimated cost to the department for conducting an annual facility inspection, which is required by the NSSP. This value was derived by calculating the payroll, vehicle, boat, and travel values for one department technician to travel to a site and conduct an inspection. As noted previously, the department is required by statute (Parks and Wildlife Code, §75.0105) to set aside 20 percent of the fees collected for oyster mariculture permits for the cleanup of illegal or abandoned cultivated oyster mariculture equipment and related debris in public water. Thus, taking 20 percent of the department's inspection expense, rounded up to the nearest $10 increment, yields a permit fee of $170. In addition, if the nursery facility is located on public water, an additional fee of $0.010 per square foot per year will be assessed, which represents a proportionally equivalent value of a COMP for the use of public water.

Two commenters opposed the fee structure, stating that the proposed annual permit fee is too high and there is not a reduced rate for additional acres. The department disagrees with the comment and responds that the annual fee structure was developed to cover department costs associated with one site inspection per year, as required by the U.S. Food and Drug Administration's National Shellfish Sanitation Program. In addition to the permitted areas, annual inspections will include the buffer areas associated with sensitive habitat elements (e.g. 200-feet for seagrass, 500-feet for oyster habitat, and 2,000-feet for bird rookeries). For a 1-acre permit area, a 200-foot seagrass habitat buffer will incorporate an additional 7.5 acres and a 500-foot oyster habitat buffer will include an additional 33 acres. For a 3-acre permit area, these buffers increase to 11 acres for seagrass and 42 acres for oysters that will be included in the annual inspections. No changes were made as a result of the comments.

The amendment is adopted under the authority of Parks and Wildlife Code, §75.0103, which requires the commission to adopt rules to establish fees and conditions for use of public resources, including broodstock oysters and public water; and any other matter necessary to implement and administer Parks and Wildlife Code, Chapter 75; and Parks and Wildlife Code, §75.0104, which requires the commission to adopt rules to establish requirements for permit applications and application fees; criteria for the approval, transfer, revocation, and suspension of permits; and procedures for hearings related to a permit.

§53.13.Business Licenses and Permits (Fishing).

(a) Licenses. The fee amounts prescribed in paragraphs (1) - (4) of this subsection reflect the total fee paid by the purchaser and include the surcharges established in subsection (b) of this section.

(1) retail fish dealer's--$92.40;

(2) retail fish dealer's truck--$171.60;

(3) wholesale fish dealer's--$825;

(4) wholesale fish dealer's truck--$590;

(5) bait dealer's--individual--$38;

(6) bait dealer-place of business/building--$38;

(7) bait dealer-place of business/motor vehicle--$38;

(8) bait shrimp dealer's--$215;

(9) finfish import--$95;

(10) freshwater fishing guide (required for residents or nonresidents who operate a boat for anything of value in transporting or accompanying anyone who is fishing in freshwater of this state)--$132;

(11) resident all-water fishing guide--$210;

(12) resident paddle craft all-water fishing guide--$210;

(13) non-resident all-water fishing guide--$1,050;and

(14) non-resident paddle craft all-water fishing guide--$1,050.

(b) Business license surcharge for shrimp marketing assistance account.

(1) retail fish dealer's--$8.40;

(2) retail fish dealer's truck--$15.60;

(3) wholesale fish dealer's--$75; and

(4) wholesale fish dealer's truck--$51.

(c) License transfers.

(1) retail fish dealer's license transfer--$25;

(2) retail fish dealer's truck license transfer--$25;

(3) wholesale fish dealer's license transfer--$25;

(4) wholesale fish dealer's truck license transfer--$25;

(5) bait dealer's license transfer--$25;

(6) bait dealer's-place of business/building license transfer--$25;

(7) bait dealer's-place of business/motor vehicle license transfer--$25;

(8) bait shrimp dealer's license transfer--$25;

(9) finfish import license transfer--$25.

(d) Cultivated Oyster Mariculture Fees.

(1) Application fee--$200.

(2) Cultivated Oyster Mariculture Permit (COMP).

(A) For a COMP located in public water--$450 per acre per year.

(B) For a COMP located on private property--$170 per acre per year.

(3) Cultivated Oyster Mariculture Permit - Nursery Only (nursery permit)--$170 per acre per year, $0.010 per square foot per year, if the nursery facility is located in public water.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 4, 2020.

TRD-202003146

Colette Barron-Bradsby

Acting General Counsel

Texas Parks and Wildlife Department

Effective date: August 24, 2020

Proposal publication date: April 17, 2020

For further information, please call: (512) 389-4775


31 TAC §53.15

The Texas Parks and Wildlife Commission in a duly noticed meeting on May 21, 2020 adopted an amendment to §53.15, concerning Miscellaneous Wildlife and Fisheries Licenses and Permits, without changes to the proposed text as published in April 17, 2020, issue of the Texas Register (45 TexReg 2484).

The amendment changes the name of the current broodfish permit, renaming it the broodstock permit to reflect the scope of new rules to establish the cultivated oyster mariculture program.

The department received no comments concerning adoption of the proposed rule.

The amendment is adopted under the authority of Parks and Wildlife Code, §75.0103, which requires the commission to adopt rules to establish fees and conditions for use of public resources, including broodstock oysters and public water; and any other matter necessary to implement and administer Parks and Wildlife Code, Chapter 75.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 4, 2020.

TRD-202003148

Colette Barron-Bradsby

Acting General Counsel

Texas Parks and Wildlife Department

Effective date: August 24, 2020

Proposal publication date: April 17, 2020

For further information, please call: (512) 389-4775


CHAPTER 57. FISHERIES

SUBCHAPTER F. COLLECTION OF BROODSTOCK FROM TEXAS WATERS

31 TAC §§57.391, 57.392, 57.394 - 57.398, 57.400, 57.401

The Texas Parks and Wildlife Commission in a duly noticed meeting on May 21, 2020, adopted amendments to §§57.391, 57.392, 57.394 - 57.398, 57.400, and 57.401, concerning Collection of Broodstock from Texas Waters. Sections 57.391 and 57.397 are adopted with changes to the proposed text as published in the April 17, 2020, issue of the Texas Register (45 TexReg 2485). The rules will be republished. Sections 57.392, 57.394 - 57.396, 57.398, 57.400, and 57.401 are adopted without changes and will not be republished.

The change to §57.391, concerning Definitions, alters paragraph (8) to replace the word "broodfish" with the word "broodstock." Punctuation was added to §57.397(2) and (3). The changes are nonsubstantive

The amendments conform the language of the subchapter to accommodate the creation of the cultivated oyster mariculture program under the provisions of new Chapter 58, Subchapter E, as adopted, which is published elsewhere in this issue. Because the new rules in Chapter 58 would allow the department to regulate the use of native oysters to propagate oysters for cultivated oyster mariculture, the provisions of Chapter 57, Subchapter F (and the title of the subchapter) need to be changed, as the term "broodfish" as currently defined does not include oysters. Therefore, the amendments replace the term "broodfish" with the term "broodstock" throughout the subchapter and refer where appropriate to "aquatic species" rather than "fish." Similarly, archaic references to "these rules" are replaced by references to "this subchapter." The portions of the amendments not specifically addressed in this preamble are nonsubstantive, housekeeping-type changes to modernize and clarify rule language to enhance readability, enforcement, administration, and compliance.

The amendment to §57.391, concerning Definitions, alters paragraph (1) to remove an irrelevant reference to private facilities. The amendment alters paragraph (2) to remove an unnecessary reference to the Agriculture Code. The amendment to paragraph (4) adds the term "mariculture" to the definition of "broodstock." The amendment adds new paragraph (10) to define "mariculture" as having the meaning assigned by Parks and Wildlife Code, Chapter 75. The amendment to paragraph (11) alters the definition of "progeny" to include oyster larvae, seed, and spat.

The amendment to §57.392, concerning General Rules, nonsubstantively rephrases subsection (a) for clarity.

The amendment to §57.395, concerning Broodstock Collection; Notification, adds a reference to Parks and Wildlife Code, Chapter 75 to the list of predicate violations for which the department will not issue a permit, which is necessary to accommodate violations relating to cultivated oyster mariculture permits.

The amendment to §57.397, concerning Broodfish Permit; Revocation, retitles the section "Prohibited Acts" and removes references to revocation. Parks and Wildlife Code, Chapter 12, provides a statutory process for the revocation of any license or permit; it is therefore unnecessary for revocation procedures to be established by rule. The amendment also enumerates the categories of conduct that would constitute offenses under the subchapter rather than enumerate specific acts.

The department received no comments concerning adoption of the proposed amendments.

The amendments are adopted under the authority of Parks and Wildlife Code, §43.552, which requires the commission to prescribe by rule the requirements and conditions for the issuance of a permit under Parks and Wildlife Code, Chapter 43, Subchapter P.

§57.391.Definitions.

The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Aquaculture (or fish farming)--The business of producing and selling cultured aquatic species.

(2) Aquaculturist--A person authorized by law to engage in aquaculture, fish farming or mariculture.

(3) Aquaculture facility (or fish farm)--The property including private ponds from which fish, shellfish, or aquatic plants are produced, propagated, transported, or sold.

(4) Broodstock--An aquatic species taken from the public waters of this state for the purpose of aquaculture or mariculture.

(5) Collection--Any boating, fishing, or aquatic product transportation activity involved in the take or attempted take of broodstock.

(6) Cultured species--Aquatic species raised under conditions where at least a portion of their life cycle is controlled by an aquaculturist.

(7) Department--The Texas Parks and Wildlife Department.

(8) Designated agent--A person designated by an aquaculturist and approved by permit to act on behalf of that aquaculturist in collection of broodstock.

(9) Director--The executive director of the Texas Parks and Wildlife Department or his designee.

(10) Mariculture--Cultivated oyster mariculture as defined by Parks and Wildlife Code, Chapter 75.

(11) Progeny--Offspring of aquatic species, including eggs, fry, fingerlings, oyster larvae, seed, and spat.

(12) Public waters--Bays, estuaries, and water of the Gulf of Mexico within the jurisdiction of the state, and the rivers, streams, creeks, bayous, reservoirs, lakes, and portions of those waters where public access is available without discrimination.

(13) Recreational Fishing--The act of using legal means or methods to take or to attempt to take aquatic life for noncommercial purposes from the public waters of this state.

§57.397.Prohibited Acts.

It is an offense for any person to:

(1) violate a provision of this subchapter;

(2) violate a provision of a permit issued under this subchapter;

(3) fail to comply with the reporting requirements of this subchapter;

(4) provide false information in a report required under this subchapter; or

(5) fail to remit to the department all restitution fees assessed by the department within 14 days of assessment.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 4, 2020.

TRD-202003147

Colette Barron-Bradsby

Acting General Counsel

Texas Parks and Wildlife Department

Effective date: August 24, 2020

Proposal publication date: April 17, 2020

For further information, please call: (512) 389-4775


CHAPTER 58. OYSTERS, SHRIMP, AND FINFISH

SUBCHAPTER E. CULTIVATED OYSTER MARICULTURE

31 TAC §§58.350 - 58.361

The Texas Parks and Wildlife Commission, in a duly noticed meeting on May 21, 2020, adopted new §§58.350 - 58.361, concerning Cultivated Oyster Mariculture. Sections 58.350 - 58.354 and 58.357 - 58.361 are adopted without changes to the proposed text as published in the April 17, 2020, issue of the Texas Register (45 TexReg 2488) and will not be republished. Section 58.355 and §58.356 are adopted with changes to the proposed text as published in the April 17, 2020, issue of the Texas Register (45 TexReg 2488). These rules will be republished. The new sections are located in new Subchapter E, Cultivated Oyster Mariculture.

The 86th Texas Legislature in 2019 enacted House Bill 1300, which amended the Parks and Wildlife Code by adding Chapter 75. Chapter 75 delegated to the Parks and Wildlife Commission authority to regulate cultivated oyster mariculture, which is the process of growing oysters in captivity. The new rules establish two types of cultured oyster mariculture permits and the general provisions governing permit privileges and obligations, as well as provisions governing administrative processes such as permit application, issuance, renewal, amendment, and denial, and reporting and recordkeeping requirements.

New §58.350, concerning Applicability, establishes the new subchapter as the primary body of administrative law governing cultivated oyster mariculture in this state and further stipulates that no provision of the new subchapter is to be construed as to relieve any person of the need to comply with any other applicable provision of federal, state, or local laws.

New §58.351, concerning Application of Shellfish Sanitation Rules of Department of State Health Services, requires all activities conducted under the subchapter to be compliant with relevant provisions of the rules of the Department of State Health Services (DSHS). The regulation of shellfish sanitation in Texas is shared between the Parks and Wildlife Department and the Department of State Health Services. As a matter of expedience, the new rules reference the applicable rules of DSHS rather than duplicate them, which has the additional benefit of preventing unintended regulatory conflict.

New §58.352, concerning Definitions, establishes the meaning of words and terms for purposes of compliance, administration, and enforcement.

New §58.352(1) defines "administratively complete" as "an application for a permit or permit renewal that contains all information requested by the department, as indicated on the application form, without omissions." The definition is necessary to establish the threshold condition that the department considers to be acceptable before committing department time and resources to evaluation and analysis of a prospective project. The permitting process for cultivated oyster mariculture permits involves several different state and federal jurisdictions and the department believes the appropriate starting point for the evaluation of such projects is when all pertinent information (as indicated on the permit application) has been submitted.

New §58.352(2) defines "container" as "any bag, sack, box, crate, tray, conveyance, or receptacle used to hold, store, or transport oysters possessed under a permit issued under this subchapter." One of the most important challenges facing the department with respect to the new rules is that of keeping farmed oysters separate from wild oysters, in order to prevent potential resource depletion on public oyster reefs by inadvertently providing an opportunity or incentives for undersized oysters to be removed from those reefs. To that end, the new rules require farmed oysters to be accompanied by a transport document when possessed outside a regulated facility, which in turn necessitates a definition for the manner in which oysters are packed and shipped for transport.

New §58.352(3) defines "cultured oyster mariculture facility (facility)" as "any building, cage, or other infrastructure within a permitted area." The definition is necessary to distinguish those places to which the rules apply.

New §58.352(4) defines "gear tag" as "a tag composed of material as durable as the device to which it is attached." The definition is necessary because the rules require infrastructure components of cultivated oyster mariculture facilities to be equipped with gear tags to facilitate cleanup activities after strong storm and tides, which can move such things great distances.

New §58.352(5) define "infrastructure" as "a building, platform, dock, vessel, cage, nursery structure, or any other apparatus or equipment within a permitted area." The definition is necessary to designate a single term for the various physical components of a facility.

New §58.352(6) defines "larvae" as "the free-swimming, planktonic life stage of an oyster." The definition is necessary because the new rules create legal distinctions between oysters on the basis of shell length, but also allow for oyster hatcheries, which typically produce oyster larvae. The new rules establish two categories of cultivated oyster mariculture permits, one of which (the nursery-only permit) applies to facilities in which oysters are obtained as larvae and grown to a size at which they can be moved to a farm (oyster seed) to be grown to legal harvest size; thus, it is necessary to make the distinction between the early life stages of oysters and the later life stages, which are regulated in different types of facilities under separate permit categories.

New §58.352(7) defines "National Shellfish Sanitation Program (NSSP)" as "the cooperative program administered by the United States Food and Drug Administration (USFDA) for the sanitary control of shellfish produced and sold for human consumption in the United States and adopted by rule of the Department of State Health Services." The definition is necessary because in order to market oysters outside the state of Texas, the state of Texas must be compliant with the federal program for oyster sanitation. The new rules require compliance with NSSP standards governing the tagging of oysters and because the NSSP has already been adopted by reference by DSHS, it is expedient for the department simply to refer to DSHS rules rather than reproduce NSSP standards in the new rules.

New §58.352(8) defines "nursery structure" as "a tank or chamber or system of tanks or chambers or other, similar devices in which a cultivated oyster is grown." The definition is necessary because the new rules establish two categories of cultivated oyster mariculture permits, one of which (the nursery-only permit) applies to facilities in which oysters are obtained as larvae and grown to a size at which they can be moved to a farm (oyster seed) to be grown to legal harvest size. Therefore, the new rules require a legal definition for the structures where larval oysters are held and cultured.

New §58.352(9) defines "oyster seed" as "shellstock of less than legal size." The definition is necessary to distinguish oysters that are not larval but not large enough to harvest.

New §58.352(10) defines "permitted area" as "the geophysical and/or geographical area identified in a permit where cultivated oyster mariculture activities are authorized." The term is necessary in order to avoid the repetition of cumbersome phraseology when referring to spatial parameters within which cultivated oyster mariculture is authorized under a permit.

New §58.352(11) defines "Permit Identifier (permit ID)" as "a unique alphanumeric identifier issued by the department to a permittee holding a Cultivated Oyster Mariculture permit." The definition is necessary because the department will issue each permittee an alphanumeric string that serves to uniquely identify a specific area where cultivated oyster mariculture activities are authorized to take place and which must be attached to various tags, labels, and equipment.

New §58.352(12) defines "permittee" as "a person who holds a permit issued under this subchapter." The definition is necessary to ensure that the term is not misunderstood to refer to any other permit or permits besides the cultivated oyster mariculture permits.

New §58.352(13) defines "Prohibited Area" as having the meaning defined by Health and Safety Code, §436.002(27). The definition is necessary for purposes of establishing conditions under which oysters grown under a cultivated oyster permit must be depurated.

New §58.352(14) defines "Restricted Area" as having the meaning defined by Health and Safety Code, §436.002(30). The definition is necessary for purposes of establishing conditions under which oysters grown under a cultivated oyster permit must be depurated.

New §58.352(15) defines "restricted visibility" as "any condition in which visibility is restricted by fog, mist, falling snow, heavy rainstorm, sandstorms, or any other similar causes." The definition is necessary to establish a reasonable standard for the visual markers delineating a permitted area.

New §58.352(16) defines "shellstock (stock)" as "live eastern oysters (Crassotrea virginica)in the shell." The definition establishes the taxonomic identity of the only species of oyster the rules allow to be grown under a cultivated oyster mariculture permit.

New §58.352(17) defines "wild-caught oyster" as "an oyster harvested from natural oyster beds." The definition establishes the distinction between oysters harvested from cultivated oyster mariculture facilities and any other oyster.

New §58.353, concerning General Provisions, consists of several actions, all of which have general applicability to the provisions of the new subchapter.

New subsection (a) prohibits any person from engaging in cultivated oyster mariculture unless the person either possesses a permit for the activity or is acting as a subpermittee. The department wishes to make it abundantly clear that it is unlawful to engage in oyster cultivation in Texas without the appropriate authorization from the department.

New subsection (b) sets forth the privileges of a Cultivated Oyster Mariculture Permit (COMP), namely, to purchase, receive, grow, and sell cultivated oysters.

New subsection (c) sets forth the privileges of a Cultivated Oyster Mariculture Permit - Nursery Only (nursery permit), namely, to purchase, receive, and grow oyster seed and larvae, and sell oyster seed to a COMP permittee.

New subsection (d) prohibits the conduct of permit activities at any place other than the locations specified by the permit. An activity conducted under a permit issued for a specific location should be conducted only at the specified location; therefore, the new rules stipulate that requirement.

New subsection (e) establishes that permits issued under the new subchapter are valid for 10 years. The 10-year period was selected because it takes several years for mariculture operations to reach optimum production capacity and they are susceptible to a variety of environmental factors that can affect operations. A 10-year period of validity allows for the continuity necessary to sustain operations.

New subsection (f) requires COMP permittees to plant at least 100,000 oyster seed per acre on an annual basis, unless otherwise specifically authorized in writing by the department. Because there is a finite amount of bay bottom that is suitable for cultivated oyster mariculture within the matrix of biological and other parameters, the department reasons that it is prudent to require persons who obtain a cultivated oyster mariculture permit to actually engage in the practice of cultivated oyster mariculture. Otherwise, that opportunity is denied to someone else.

New subsection (g) restricts cultivated oyster mariculture to seed and larvae from native Eastern oyster broodstock collected in Texas waters and propagated in a hatchery located in Texas unless otherwise specifically authorized by the department in writing, including the importation, with a time constraint of December 31, 2027, of triploid oysters, tetraploid oyster seed, oyster larvae, and or oyster semen/eggs (germplasm) produced in permitted out-of-state hatcheries located along the Gulf of Mexico for use in cultivated oyster mariculture in this state and/or oyster seed, oyster larvae, and oyster semen/eggs (germplasm) produced from Texas broodstock at out-of-state hatcheries located along the Gulf of Mexico for use in cultivated oyster mariculture in this state. The department's mission is to protect and conserve the fish and wildlife resources of Texas. For that reason, the new rules do not allow the cultivation of oyster species that are not native to Texas or the cultivation of oysters that are not propagated in Texas from oysters collected in Texas, unless the department determines that such importation can be done without threatening native oyster stocks. By requiring all oysters in mariculture operations to be native species grown in Texas from native broodstock or department-approved broodstock, the department seeks to ensure that wild oyster populations and the ecosystems they inhabit are not threatened by the escape or accidental release of organisms that are not genetically compatible. The deadline of December 31, 2027 is intended to encourage prospective permittees who seek to utilize genetically acceptable stock obtained outside of Texas to do so within a limited amount of time, after which the department expects all stock to be propagated in Texas facilities.

New subsection (h) sets forth the department's inspection, sampling, and permit provision authority. In order to ensure that the provisions of the new rules are being followed, the department must be able to inspect the permitted areas, facilities, infrastructure, containers, vessels, and vehicles used to engage in cultivated oyster mariculture activities. Similarly, the department must be able to determine the genetic identity of all oysters used in oyster mariculture activities. Therefore, the new rules reflect those priorities. Additionally, it is impossible for the new rules to contemplate and address the unique circumstances that could exist in any given mariculture operation. For this reason, the rules allow the department to include specific permit provisions in any given permit, as circumstances dictate.

New subsection (i) prescribes notification requirements for permittees in the event of disease outbreaks or other disruptions that could result in the release of pathogens or farmed oysters into the surrounding ecosystem. The department believes it is important to be notified as quickly as possible in the event of a condition that could result in an immediate threat to native ecosystems, such as the emergence of contagious disease in a facility transmissible to wild oysters outside of the facility or the physical breaching of infrastructure (which could be caused by severe weather, marine collision, etc.) that could result in the unintentional broadcast of stock or larvae from the facility to surrounding areas. Therefore, the new subsection requires a permittee to notify the department within 24 hours of the discovery within a permitted area of a disease or any condition, manmade or natural, that creates a threat of the unintentional release of stock or larvae. The new provision makes an exception for dermo (Perkinosis marinus), a microscopic oyster parasite that is so common in natural ecosystems as to be ubiquitous.

New subsection (j) allows the department to take any appropriate action, including ordering the cessation of activities and the removal of all stock and larvae from a permitted area, in response to a disease condition (other than dermo) or the suspension or revocation by a federal or state entity of a permit or authorization required to be held under the subchapter. Clearly, the presence of disease within a permitted area is a potential threat to native ecosystems and therefore cause for concern, response, and preventative measures, up to and including cessation of operations and the removal of stock, as appropriate. Similarly, failure by the permittee to comply with the rules would be cause for the department to order the suspension of operations, including the removal of all stock, until the deficiency is remedied, and the department authorizes resumption of permitted activities in writing. Therefore, new subsection (k) so stipulates.

New subsection (l) establishes the legal size at which oysters may be harvested and transported from a COMP. The department's rules governing the harvest of wild oysters establish a minimum size of three inches for lawful harvest. Because farmed oysters grow faster and are meatier than wild oysters, the new rules establish a minimum size of 2.5 inches, but live oysters of less than 2.5 inches could not leave a COMP facility, which is necessary because the NSSP requires the establishment of a maximum size for nursery oysters grown in waters classified as Restricted or Prohibited (given a minimum of 120 days for depuration).

New subsection (m) restricts the harvest of oysters in a COMP to daylight hours, which is necessary to enhance enforcement and inspection activities. It is easier to observe and document harvest activities in daylight.

New subsection (n) addresses subpermittees. The department acknowledges that it is not possible for a single permittee to conduct all the activities authorized by a permit, so the new rules allows permittees to designate subpermittees to perform permitted activities in the absence of the permittee. In order to prevent confusion and misunderstandings, the new rules require subpermittees to be named on the permit, and, at all times they are engaged in a regulated activity, to possess a copy of the permit under which the activity is being performed and a subpermittee authorization signed and dated by both the permittee and the subpermittee. The new subsection also stipulates that permittees and subpermittees are jointly liable for violations. The department reasons that a permittee, as the person to whom a permit is issued, is responsible for compliance with the provisions of the subchapter, and any person the permittee designates to perform permitted activities should be held accountable as well.

New subsection (o) prescribe the marking requirements for a permitted area. The new subsection requires the installation and maintenance of boundary markers, requires the boundary markers to be at least six inches in diameter, extend at least three feet above the water at mean high tide, be of a shape and color visible at one half-mile under conditions that do not constitute restricted visibility, and bear the permittee's identifier. The department considers the standards to be a reasonable way of identifying a permitted area. The new subsection also requires the installation, functionality, and maintenance of any safety lights and signals required by applicable federal regulations, including regulations of the United States Coast Guard (USCG), and requires permittees to repair or otherwise restore to functionality any light or signal within 24 hours of notification by the U.S.C.G or the department. As the state agency with primary responsibility for water safety, the department strongly believes that compliance with applicable federal regulations regarding safety lights and signals is important.

New subsection (p) prohibits the transfer or sale of permits. The department reasons that the permit application process set forth in the new rules exists to ensure that a person who seeks to engage in permitted activities meets all of the requirements of the various governmental entities with regulatory jurisdiction before being allowed to engage in permitted activities. Allowing sale or transfer of permits would defeat the purpose of the application process and introduce administrative complexity.

New subsection (q) requires permittees at their expense to remove all containers, enclosures, and associated infrastructure from public waters within 60 days of permit expiration or revocation. The department believes it is not appropriate to allow a facility to be abandoned in public water, which would constitute a danger, a nuisance, and an impediment to public enjoyment.

Rough weather is not uncommon in coastal waters and, though infrequent, severe events such as tropical storms and hurricanes are not rare. Such events have the potential to destroy facilities and distribute the detritus and debris over long distances. For this reason, new subsection (r) requires a valid gear tag to be attached to each piece of component infrastructure (e.g., containers, cages, bags, sacks, totes, trays, nursery structures) within a permitted area. The gear tag must bear, in legible fashion, the name and address of the permittee and the permit identifier of the permitted area. The new subsection allows the department to identify components so permittees can retrieve or dispose of them properly.

New subsection (s) requires oysters bound for sale to be in containers that are tagged as required by the NSSP and DSHS regulations and to bear the destination of the container by permit identifier and/or business name and physical address. Shellfish sanitation is strictly regulated at the federal and state levels because of the known health hazards associated with mishandled shellfish. The department believes that oysters destined for the food chain should be handled in accordance with appropriate legal requirements. Additionally, because the department wishes to ensure that cargoes of farmed oysters are not commingled with wild-caught oysters, the new subsection requires information about cargo destination, which allows the department to match records required to be maintained by buyers and sellers of shellfish.

New subsection (t) sets forth the requirements for transporting oyster seed. As discussed elsewhere in this preamble, the department seeks to ensure the separation at all times of farmed oysters from wild-caught oysters. It is unlawful in Texas for anyone to possess a wild-caught oyster less than three inches in size. Because the new rules allow the movement of oysters of less than three inches in size to hatcheries, from hatcheries to nurseries, and from nurseries to COMP facilities, it is therefore necessary to prescribe a documentation mechanism to be used during the transport of oyster seed or larvae for permitted activities. An Oyster Seed Transport Document is required to accompany all oyster seed or larvae that is possessed outside of a permitted area. The document bears the name, address, and permit identifier of each permittee from whom the oyster seed or larvae was obtained, the name, address, and permit identifier of each permittee to whom the oyster seed or larvae is to be delivered, and precisely accounts for and describes all containers in possession. In this way, the department is able to ensure that persons in possession of undersized oysters are able to document the source and destination of the oysters in their possession.

New subsection (u) requires vessels used to engage in activities regulated under the new subchapter to prominently display an identification plate supplied by the department at all times the vessel is being used in such activities. The provision is necessary to enable enforcement personnel to quickly and efficiently identify vessels working on permitted areas or being used to carry farmed oysters.

New §58.354, concerning Oyster Seed Hatchery, allows a person to whom the department has issued a broodstock permit under the provisions of Chapter 57, Subchapter F of this title for the collection of wild oysters to furnish oyster seed or larvae produced from wild-caught oysters to a COMP or nursery permitted under this subchapter, but stipulates that all oyster seed or larvae leaving such a facility must be accompanied by the Oyster Seed Transport Document set forth in §58.352(t), and for the same reasons.

New §58.355, concerning Permit Application, prescribes the application requirements to obtain a permit issued under the new subchapter. New subsection (a) requires an applicant to submit an administratively complete application and stipulate that an application will not be reviewed unless it is administratively complete. As discussed earlier in this preamble with the respect to the definition of "administratively complete," it is inefficient to begin any evaluation of a prospective project unless all pertinent information has been obtained, including evidence that the applicant has obtained or is in the process of obtaining all necessary authorizations and permits from other governmental entities. Therefore, the application requires the key information necessary for the department to determine whether or not permit issuance is feasible. The application requires the applicant to prepare and submit an Operation Plan, evidence of the necessary permits from other governmental entities, and a natural resource survey (using department-approved protocols). New subsections (b) and (c) create a mechanism for public comment on proposed projects. New subsection (b) stipulates that the department publish public notice of a permit application, which is necessary to provide interested and affected members of the public an opportunity to comment on the pending permit application. The department will consider all public comment relevant to matters under the jurisdiction of the department. The department is the primary state agency for fish and wildlife management and water safety and is involved to a lesser extent in several other aspects, such as water quality, environmental flows, and environmental pollution enforcement and response. For these reasons, the department believes it is critical that the public be made aware of permit applications and given comment opportunity; however, the department will only consider comment relevant to matters under the department's jurisdiction, including but not limited to aquatic resource and ecosystem impacts, recreational and commercial user impacts, and water safety impacts. New subsection (c), for prospective projects within or partially within public waters, requires the department to hold a public meeting in the city or municipality closest to the proposed permitted area to take public comment on the proposed project. The department will publish notice of the public meeting at least two weeks prior to the meeting, in print or electronically, in the daily newspaper of general circulation closest to the proposed operational area, and the costs of newspaper notice are to be borne by the applicant. The new subsection also conditions any permit issuance on payment of publication costs to the department. New subsection (d) stipulates the various fees associated with permits issued under the new subchapter must accompany the application. The fee requirements for permits issued under the new subchapter are created in this rulemaking; however, the fee amounts are established in another rulemaking published elsewhere in this issue.

New §58.356 provides for permit renewal, which requires an applicant to submit an administratively complete application for permit renewal, accompanied by the appropriate fee.

New §58.357, concerning Permit Amendment, provides for amendments to an existing permit, provided the permittee has completed and submitted an administratively complete application for permit renewal and possesses all necessary authorizations and permits required by any other state or federal entity for the conduct of the activities for which the amendment is sought. The department considers that a permittee during the course of permit validity might desire to increase the intensity of an operation or alter some other facet of production. The department is not averse to amending permits to accommodate such things, provided the applicant possesses all necessary authorizations and permits from other regulatory authorities with respect to the prospective amendment. The department will not, however, consider an amendment that would increase the size of a permitted area. In such cases, the applicant will be required to go through the permit application process set forth in §58.355. The new subsection also prohibits amendment of an expired permit, for obvious reasons.

New §58.358, concerning Reporting and Recordkeeping, establishes the necessary administrative responsibilities of permittees. The new section requires permittees to maintain current, accurate records of all shellstock and larvae acquired, introduced, removed, or harvested from a permitted facility and to submit an annual report to the department. For a variety of reasons, not the least of which are public health and the protection of native ecosystems, it is necessary to be able to verify that cultivated oyster mariculture activities are being conducted as set forth in the new subchapter. Therefore, the new rules require permittees to keep and maintain records regarding permitted activities, and to submit an annual report, which enables the department to quickly and accurately identify improper activities, if questions arise. Additionally, under Parks and Wildlife Code, Chapter 47, no person may engage in business as a wholesale or retail fish dealer unless that person has obtained the appropriate license, and under Parks and Wildlife Code, §66.019, no dealer who purchases or receives aquatic products directly from any person other than a licensed dealer may fail to file the report with the department each month on or before the 10th day of the month following the month in which the reportable activity occurred. The new section therefore makes clear that permittees, as persons who buy and sell an aquatic product, are required to comply with the statistical reporting requirements of Parks and Wildlife Code, §66.019. The new subsection also stipulates a records retention requirement of two years. Violations of the new rules are a Class B misdemeanor by statute, and two years is the statute of limitations for Class B misdemeanors.

New §58.359, concerning Agency Decision to Refuse to Issue or Renew Permit; Review of Agency Decision, allows the department to refuse permit issuance or renewal to any person who has been finally convicted of, pleaded nolo contendere to, received deferred adjudication, or been assessed an administrative penalty for a violation of: the subchapter; Parks and Wildlife Code, Chapters 47, 66, 76, 77, 78, or 75 (for which a commercial license or permit is required); a provision of the Parks and Wildlife Code that is a Class A or B misdemeanor, state jail felony, or felony; Parks and Wildlife Code, §63.002; or the Lacey Act (16 U.S.C. §§3371-3378). In addition, the new section allows the department to prevent a person from acting on behalf of or as a surrogate for a person prevented from obtaining a permit under the new provisions and provides for a review process for agency decisions to refuse permit issuance or renewal.

The department has determined that the decision to issue a permit to hold protected live wildlife or to collect and possess wildlife for commercial purposes should take into account an applicant's history of violations involving the capture and possession of live animals, major violations of the Parks and Wildlife Code (Class B misdemeanors, Class A misdemeanors, and felonies), and Lacey Act violations. The department reasons that it is appropriate to deny the privilege of taking or allowing the take of wildlife resources to a person who exhibits a demonstrable disregard for laws and regulations governing wildlife. Similarly, it is appropriate to deny the privilege of holding wildlife to a person who has exhibited demonstrable disregard for wildlife law in general by committing more egregious (Class B misdemeanors, Class A misdemeanors, and felonies) violations of wildlife law.

The Lacey Act (16 U.S.C. §§3371-3378) is a federal law that, among other things, prohibits interstate trade in or movement of wildlife, fish, or plants taken, possessed, transported, or sold in violation of state law. Lacey Act prosecutions are normally conducted by the United States Department of Justice in federal courts. Although a Lacey Act conviction or civil penalty is often predicated on a violation of state law, the federal government need only prove that a state law was violated; there is no requirement for there to be a record of conviction in a state jurisdiction. Rather than expending resources and time conducting concurrent state and federal prosecutions, the department believes that it is reasonable to use a Lacey Act conviction or civil penalty as the basis for refusing to issue or renew a permit. Because the elements of the underlying state criminal offense must be proven to establish a conviction or assessment of a civil penalty for a Lacey Act violation, the department reasons that such conviction or assessment constitutes legal proof that a violation of state law occurred, and it is therefore redundant and wasteful to pursue a conviction in state jurisdiction to prove something that has already been proven in a federal court.

The denial of permit issuance or renewal as a result of an adjudicative status listed in the amendment would not be automatic, but within the discretion of the department. Factors that may be considered by the department in determining whether to refuse permit issuance based on adjudicative status include, but are not limited to: the number of final convictions or administrative violations; the seriousness of the conduct on which the final conviction or administrative violation is based; the existence, number, and seriousness of offenses or administrative violations other than offenses or violations that resulted in a final conviction; the length of time between the most recent final conviction or administrative violation and the application for enrollment or renewal; whether the final conviction, administrative violation, or other offenses or violations were the result of negligence or intentional conduct; whether the final conviction or administrative violations resulted from the conduct committed or omitted by the applicant, an agent of the applicant, or both; the accuracy of information provided by the applicant; for renewal, whether the applicant agreed to any special provisions recommended by the department as conditions; and other aggravating or mitigating factors.

The new section also provides for department review of a decision to refuse permit issuance or renewal. The amendment requires the department to notify an applicant not later than the 10th day following a decision to refuse permit issuance or denial and to set a time and date for conducting a review of an agency decision to refuse permit issuance or renewal within 10 days of receiving a request for a review. The amendment stipulates that a review panel consists of three department managers with appropriate expertise in the activities conducted under the permit in question. The new provision is intended to help ensure that decisions affecting permit issuance and renewal are correct.

New §58.360, concerning Prohibited Acts, identifies specific acts that constitute violations of the new subchapter.

New paragraph (1) makes it a criminal act to possess a commercial oyster dredge or oyster tongs within a permitted area or aboard a vessel transporting oysters under the provisions of this subchapter. The provision is necessary because the department wishes to employ measures to safeguard native oyster populations from exploitation by unscrupulous persons. Prohibiting the possession of common oystering gear on board a vessel transporting farmed oysters obviates the opportunity for persons to engage in the harvest of native oysters while transporting farmed oysters. For similar reasons, new paragraph (2) creates an offense for commingling or allowing the commingling of wild-caught and farmed oysters.

New paragraphs (3) and (4) clarify that it is an offense for failing to notify the department within 24 hours upon the discovery of a disease condition within a permitted facility and for failing to notify the department within 24 hours upon discovery of any condition that could result in the unintentional release of shellstock or larvae. As discussed previously in this preamble with respect to §58.353(i), the department wishes to prevent the release of farmed oysters and oyster diseases to wild populations.

New paragraph (5) clarifies the offense of failing to maintain all corner markers of the permitted area of a facility within public water as prescribed by the new subchapter, which is necessary for the reasons described earlier in this preamble with respect to new §58.353(o).

New paragraph (6) creates an offense for failing to remove all enclosures and infrastructure from public waters within 60 calendar days of permit expiration or revocation. Under the provisions of new §58.353(q), permittees are required to remove, at the expense of the permittees, all containers, enclosures and associated infrastructure from public waters within 60 calendar days of permit expiration or revocation. The new paragraph clarifies that it is a criminal offense not to do so.

New paragraph (7) clarifies that it is an offense to operate a COMP or nursery facility except as specified by this subchapter and the provisions of a permit. The provision is intended to ensure that criminal liability is not limited to the specific offenses identified throughout the new subchapter, but to any violation of the new subchapter or the provisions of a permit issued under the new subchapter.

Finally, new paragraph (8) clarifies that it is an offense to operate a COMP or nursery facility without all authorizations and permits required by any federal, state, or local governmental authority. Possession of all necessary authorizations and permits is a predicate for facility operation. The department believes that continuing to operate a facility without one or more authorizations or permits constitutes a criminal act.

New section §58.361, concerning Violations and Penalties, provides that a person who violates a provision of this subchapter or a provision of a permit issued under this subchapter commits an offense punishable by the penalty prescribed by the Parks and Wildlife Code, §75.0107. Violations and penalties are prescribed by statute and the department believes it is prudent to reference the applicable statutory provisions for clarity. Finally, the new section provides that a permit issued under this section is not a defense to prosecution for any conduct not specifically authorized by the permit. The department believes it is prudent to reinforce that a permit issued under this section does not relieve a permittee or subpermittee of criminal responsibility as the offenses prescribed by statute constitute a Class B Parks and Wildlife Code Misdemeanor.

The department received three comments regarding adoption of the proposed new rules. Each of the comments provided a reason or rationale for opposing adoption. Those comments, accompanied by the department's response to each, follow. Because each commenter presented multiple reasons for opposing adoption, the number of agency responses is greater than the total number of comments.

Two commenters opposed the active use criteria that requires the planting of 100,000 seed oysters per acre per year, stating that this is a new industry and applicants/permittees may need time to grow into their business. The department disagrees with the comment and responds that permits for oyster mariculture will remove the permitted area from use by other users of public waters of the state. As such, the requirement to plant at least 100,000 seed oysters per acre per year is intended to ensure the permitted area is being used for the purpose intended. Additionally, the rules provide that the department may specify another amount, if warranted. No changes were made as a result of the comments.

Two commenters opposed adoption and stated that the movement of oysters and oyster seed produced outside the Lower Laguna Madre back into this area, stating that this would affect the genetic population of oysters in the Southern zone and increase the risk of bringing new unknown pathogens or more virulent strains of pathogens into this area. The department agrees with the comment that movement of oysters originating from outside the Southern zone could affect the unique genetic population of oysters found in this area. This activity is prohibited under the rules. Oyster seed must be produced from oysters originating from either the Northern or Southern zone and can only be placed within a corresponding Northern or Southern permitted area. The primary pathogen of oysters in Texas is dermo (Perkinsus marinus) which is transmitted from oyster to oyster. Since broodstock held in hatcheries will be isolated for spawning and oyster seed used for COMP activities are also isolated and would typically be shipped to growers within two months of setting, the risk of dermo infection is considered minimal. No changes were made as a result of the comments.

One commenter opposed adoption and stated that the environmental scope of definitions within the rules should include ecologically significant areas, such as submerged aquatic vegetation, and not be limited to areas designated by the Texas Department of State Health Services for reasons of shellfish sanitation. The department disagrees with the comment and responds that the designation of areas as "Prohibited" or "Restricted" is determined by the Texas Department of State Health Services to identify areas where water quality may result in public health issues if oysters were harvested and consumed from these areas. A condition of a COM permit establishes buffers between permitted mariculture areas and sensitive habitats such as seagrass. A 200-foot buffer for seagrass beds will be used in evaluating proposed cultivated oyster mariculture sites. No changes were made as a result of the comment.

The department received 11 comments supporting adoption of the proposed new rules.

The new sections are adopted under the authority of Parks and Wildlife Code, §75.0103, which requires the commission to adopt rules to establish a program governing cultivated oyster mariculture, which may establish requirements for the location and size of a cultivated oyster mariculture operation; the taking, possession, transport, movement, and sale of cultivated oysters; the taking, possession, transport, and movement of broodstock oysters; marking structures for the cultivation of oysters in a cultivated oyster mariculture operation; fees and conditions for use of public resources, including broodstock oysters and public water; and any other matter necessary to implement and administer Parks and Wildlife Code, Chapter 75; and Parks and Wildlife Code, §75.0104, which requires the commission to adopt rules to establish requirements for permit applications and application fees; criteria for the approval, transfer, revocation, and suspension of permits; and procedures for hearings related to a permit.

§58.355.Permit Application.

(a) An applicant for a permit under this subchapter must submit an administratively complete application to the department. The department will not review an application that is not administratively complete.

(b) The department will publish notice of the application for a permit under this subchapter and provide opportunity for public comment. The department will consider all public comment relevant to matters under the jurisdiction of the department.

(c) For proposed facilities that will be within or partially within public water, the department will hold a public meeting in the city or municipality closest to the proposed permitted area to take public comment on the proposed project. The department will publish notice of the public meeting at least two weeks prior to the meeting, in print or electronically, in the daily newspaper of general circulation closest to the proposed operational area. Costs of newspaper notice are the responsibility of the applicant and no permit will be issued until the department has received payment for the required notice.

(d) An application for a permit under this subchapter shall be accompanied by the applicable permit fee established in §53.13 of this title (relating to Business License and Permits (Fishing)).

(1) The department shall assess a nonrefundable annual fee based on the size of the permitted area for which a COMP or nursery permit is issued. The fee is as specified under §53.13 for a COMP.

(2) For nursery structures located on public waters, a surcharge in addition to the fee imposed by paragraph (1) of this subsection shall be assessed as specified under §53.13.

(3) The fees established in this subsection shall be recalculated at three-year intervals beginning on the effective date of the permit and proportionally adjusted to any change in the Consumer Price Index.

(4) The fees established by this subsection are due annually by the anniversary of the date of permit issuance.

§58.356.Renewal.

The department may renew a permit under this subchapter, provided the permittee has submitted an administratively complete application for permit renewal on a form provided or approved by the department, accompanied by the permit renewal fee specified in §53.13 of this title (relating to Business License and Permits (Fishing)).

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 4, 2020.

TRD-202003149

Colette Barron-Bradsby

Acting General Counsel

Texas Parks and Wildlife Department

Effective date: August 24, 2020

Proposal publication date: April 17, 2020

For further information, please call: (512) 389-4775


CHAPTER 65. WILDLIFE

SUBCHAPTER A. STATEWIDE HUNTING PROCLAMATION

DIVISION 2. OPEN SEASONS AND BAG LIMITS

31 TAC §65.49

The Texas Parks and Wildlife Commission in a duly noticed meeting on May 21, 2020, adopted an amendment to §65.49, concerning Alligators, without changes to the proposed text as published in the April 17, 2020, issue of the Texas Register (45 TexReg 2498). The rule will not be republished.

The amendment clarifies language regarding the payment of the fee for a CITES hide tag and eliminates obsolete references to department forms. The Convention on International Trade in Endangered Species (CITES) is an international agreement to protect endangered plants and animals. The American alligator, although not endangered, is subject to CITES documentation requirements because of similarity of appearance to other endangered crocodilian species. Under the current rule it is not clear that the fee for a hide tag must be submitted with the application for the tag. The amendment makes it clear that the application for a hide tag must be accompanied by the fee for the hide tag. The amendment also replaces a reference to a specific form number and stipulates that the report be made on a form supplied or approved by the department.

The department received no comments supporting or opposing adoption of the proposed amendment.

The amendment is adopted under the authority of Parks and Wildlife Code, §65.003, which authorizes the commission to regulate taking, possession, propagation, transportation, exportation, importation, sale, and offering for sale of alligators, alligator eggs, or any part of an alligator that the commission considers necessary to manage this species, including regulations to provide for the periods of time when it is lawful to take, possess, sell, or purchase alligators, alligator hides, alligator eggs, or any part of an alligator; and limits, size, means, methods, and places in which it is lawful to take or possess alligators, alligator hides, alligator eggs, or any part of an alligator; and control of nuisance alligators.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 4, 2020.

TRD-202003150

Colette Barron-Bradsby

Acting General Counsel

Texas Parks and Wildlife Department

Effective date: August 24, 2020

Proposal publication date: April 17, 2020

For further information, please call: (512) 389-4775


SUBCHAPTER P. ALLIGATOR PROCLAMATION

31 TAC §§65.352, 65.353, 65.357 - 65.362, 65.365

The Texas Parks and Wildlife Commission in a duly noticed meeting on May 21, 2020 adopted amendments to §§65.352, 65.353, 65.357 - 65.362, and 65.365, concerning the Alligator Proclamation. Sections 65.358 and 65.360 are adopted with changes to the proposed text as published in the April 17, 2020, issue of the Texas Register (45 TexReg 2511). Sections 65.352, 65.353, 65.357, 65.359 - 65.362, and 65.365 are adopted without changes and will not be republished.

The change to §65.358, concerning Alligator Egg Collection, provides for conditional partial issuance of nest stamps to egg collectors on properties that have historically received nest stamps, based on biological factors and compliance history. The change also clarifies that the notification requirements of the section apply only to the person to whom the nest stamps were issued, not every person in an egg collection party.

The change to §65.360, concerning Reporting and Recordkeeping Requirements, corrects a subject/verb conflict in subsection (b). The change is nonsubstantive.

The amendments make generally applicable changes to language governing references to reports and notifications required by rule. In such cases, the amendments stipulate that the report be made on a form supplied or approved by the department.

The amendment to §57.352, concerning, Definitions, adds definitions for "clutch," "egg," "export," "import," "nest disturbance," "incubation-only facility," and "partially processed alligator," alter the definitions of "egg collection," "farmer," "processed product," "retail dealer," and "wholesale dealer," and eliminate definitions for "gig," "propagation," and "subpermittee."

The current rules governing the collection and incubation of alligator eggs employ the term "clutch" when referring to groups of eggs; however, the rules do not define that term. The amendment defines "clutch" as "the number of alligator eggs, both fertile and infertile, in a single alligator nest." The definition is necessary not only to provide an unambiguous meaning of the term for purposes of compliance and enforcement, but to make clear that all alligator eggs, including infertile eggs, are considered by the department to be part of a wild nest.

The amendment defines "egg" as "an alligator egg" to clarify that when the term "egg" is used in any context in the rules, it means alligator eggs.

The amendment provides definitions for "export" and "import." Although the current rules govern export and import of alligators (which by statute include alligator eggs, parts, and products), the department believes it is prudent to provide unmistakable meanings for those terms. Therefore, the definition for "export" is "the physical transportation of an alligator to any point outside the state of Texas." Similarly, the definition for "import" is "the physical transportation of an alligator from outside of Texas across the state line into Texas."

The amendment defines "nest disturbance" as "the act of physically manipulating, handling, or tampering with an alligator nest in any way." The definition is necessary because the department has identified a deficiency in the current rules governing egg collection. Current rules unintentionally apply only to the removal of eggs and not to associated activities prior to or during removal. Alligator nests and eggs are extremely sensitive to disturbance. Because the department, based on a biological assessment, issues a specific number of nest authorizations for any given property, it is theoretically possible under current rule to disturb a nest without removing eggs, which results in unnecessary mortalities if the eggs succumb to environmental exposure or the mother abandons the nest. The amendment clarifies that egg collection includes the intrusion that must occur in order to physically remove eggs.

The amendment adds a definition for "incubation-only facility." Under current rule, an alligator farmer may operate a facility solely for the purpose of incubating and hatching alligator eggs for purposes of sale to another farmer. In the amendment to §65.360, concerning Reporting Requirements, the quarterly alligator farm report requirement for farmers operating incubation-only facilities has been eliminated and replaced with a single report. There is no reason to require quarterly reports for incubation-only facilities, because incubation activities occur seasonally, based on the life history of the resource. Therefore, a definition for incubation-only facility is necessary to distinguish such operations from other alligator farming operations.

The amendment defines "partially processed alligator" as "a whole alligator that has been skinned except for the head, or a whole alligator that has been skinned except for the head and feet." Current rules address "processed" and "unprocessed" alligators. The department has become aware of an emerging market for whole alligators that have been prepared for culinary use by consumers, such as tailgate activities at sporting events. Such products are in a regulatory nether region under current rule. In order to eliminate misunderstandings, the amendment defines such products as "partially processed alligators," which, in conjunction with the amendment to §65.357, concerning Purchase and Sale of Alligators, allows wholesale dealers to sell directly to consumers and eliminates any reporting and recordkeeping requirements for the consumer.

The amendment alters the term "egg collection" to "egg collection activities" and alters the definition to include nest disturbance in addition to removal of eggs, or possession of eggs removed from wild nests. The amendment is necessary to clarify that "nest disturbance" is an egg collection activity.

The amendment alters the current definition of "farmer" to clarify that the term applies only to a person possessing a valid permit issued for alligator farming by the department.

The amendment alters the current definition of "processed product" to stipulate that alligator meat that has been removed from the skeleton is a processed product, which is necessary to clarify, in conjunction with the amendment to §65.357, that only wholesale dealers and farmers are permitted to sell alligator meat, except as otherwise provided.

The amendment alters the definitions of "retail dealer" and "wholesale dealer" to simplify the definitions and relocate regulatory provisions to the rules where they more properly belong. A retail dealer is defined as "a person possessing a valid retail dealer permit issued under this subchapter" and a whole dealer is defined as "a person possessing a valid wholesale dealer permit issued under this subchapter."

The amendment eliminates the definitions for "gig," "propagation," and "subpermittee." The definition for gig is an artifact from a time when recreational alligator hunting was regulated under the subchapter and is thus unnecessary. The definition of "propagation" is superfluous, since the alligator farmer permit by rule authorizes permit holders to engage in the practice. The definition of "subpermittee" is unnecessary because it is unique to and defined within another rule regulating nuisance alligator control.

The amendment to §57.353, concerning General Provisions, alters subsection (b) to eliminate confusion by removing verbiage related to common carriers that is addressed by another provision of the rules. The amendment also clarifies that no person other than a wholesale dealer or farmer may process alligator meat for sale. Although alligator meat may be possessed for resale by retail dealers and re-sold to consumers (grocery stores, restaurants, etc.), only wholesale dealers and farmers are allowed to process alligators for purposes of meat production. The amendment also incorporates an existing provision prohibiting alligator eggs collected under the subchapter from being exported. The provision is currently located in §65.358 and is being relocated for reasons of topical consistency. The amendment also includes a provision to make clear the rules do not relieve any person of an obligation imposed by another legal authority regarding food safety. The department wishes to make clear that rules or statutes governing food preparation, handling, distribution, and so forth are in addition to any requirements of the subchapter.

The amendment to §57.357, concerning Purchase and Sale of Alligators, consists of several changes. The amendment clarifies that a retail dealer permit is not required for the purchase of packaged alligator meat for re-sale to consumers, which is necessary to definitively address the circumstances under which chain of custody and permit requirements do not apply. The amendment removes language regarding the applicability of food safety regulations, which is being relocated to another part of the rules and has been addressed earlier in this preamble. The amendment allows wholesale dealers to sell partially processed alligators, for reasons discussed in the amendment to §65.352, concerning Definitions. The amendment makes changes to subsection (d) to clarify the classes of persons from whom a farmer may purchase live or dead alligators. The current rules are confusing because they are predicated on the term "live or dead," which seems to imply that wholesale dealers and recreational hunters are able to sell live or dead alligators to farmers, which isn't the case. Farmers are allowed to purchase live alligators only from another farmer or a control hunter. Farmers are allowed to purchase dead alligators from another farmer, a wholesale dealer, a recreational hunter, or a control hunter. The amendment clearly delineates these distinctions and provides the additional clarification that alligator eggs may be purchased by a farmer only from a person legally authorized to sell eggs. Additionally, the amendment replaces the current provision regarding department notification of impending transport or receipt of live alligators with a provision requiring notification to be effected via fax or email to the department's Law Enforcement Communications Center not less than 24 hours nor more than 48 hours in advance of transport or receipt. The department has determined that the current notification requirements, which require a game warden at the point of origin and at the destination to be notified "at least 24 hours prior to transport," are problematic because they create an open-ended situation in which transportation could occur at any time following notification, indefinitely. The department believes it is prudent to establish a specific timeframe or window within which transport must occur or be cancelled, in order to prevent situations in which department personnel do not know with reasonable certainty when a regulated activity will occur, which interferes with efficiency and the performance of other duties. Additionally, the department believes it is more efficacious to require the notifications to be made to a central location, which allows the department greater flexibility in personnel allocation as well as providing the benefit of creating a single recordkeeping function. Therefore, the new provision requires an alligator farmer to complete and submit to the department's Law Enforcement Communication Center by fax or email a transfer notification on a form supplied or approved by the department, requires the notification to be submitted not less than 24 hours nor more than 48 hours prior to the transport or receipt, and requires cancellation via notification of the Law Enforcement Communications Center by fax or email prior to the transport in the event that the transport cannot take place. Finally, the amendment alters subsection (e)(2) to replace the current reference to alligators taken on "wildlife management areas" with a reference to alligators taken under "annual public hunting permit," which is more accurate.

The amendment to §57.358, concerning Alligator Egg Collectors, consists of several actions. In addition to the references to department forms addressed earlier in this preamble and a changer to the title of the section to more accurately define the subject of the section, the amendment requires applicants for nest stamp issuance to supply GPS coordinates indicating the locations of alligator nests on a specific tract of land and restates the department's authority to verify the accuracy of application materials. The department authorizes the collection of eggs from nests on the basis of a biological and ecological determination of the portion of reproductive potential can be removed from the ecosystem as harvestable surplus. The department believes that utilization of widely available and extremely accurate GPS technologies to identify exact nest locations will reduce confusion and misunderstandings caused by more rudimentary methods, as well as provide the department with accurate datasets that provide greater resolution for purposes of better resource management. Under Parks and Wildlife Code, §12.103, an authorized employee of the department may, for purposes of enforcing game and fish laws of the state, enter on any land or water where wild game or fish are known to range or stray. Therefore, the amendment restates that authority in terms of nest location verification. The amendment also replaces references to egg collection and collecting with references to egg collection activities, for the reasons explained in the discussion of the amendments to §65.352 earlier in this preamble, concerning Definitions. The amendment also clarifies that egg collection activities shall only be conducted on designated tracts of water in addition to designated tracts of land, which is more accurate as alligator nests are often located in wetland environments. The amendment also establishes lawful hours for the collection of alligator eggs. For purposes of enhancing the department's ability to monitor egg collection activities, if necessary, and to promote the safety of persons engaged in egg collection activities, the department believes it is prudent to restrict egg collection activities to daylight hours. Therefore, the amendment prohibits egg collection between sunset and one half-hour before sunrise. Finally, similar to the amendment to §65.357 regarding notification requirements for farmers, and for the same reason addressed in the discussion of that amendment previously in this preamble, the amendment replaces existing notification requirements for egg collection activities with the requirement that egg collectors complete and submit to the department's Law Enforcement Communication Center by fax or email an egg collection activity notification on a form supplied or approved by the department, requires the notification to be submitted not less than 24 hours nor more than 48 hours prior to the transport or receipt, and requires cancellation via notification of the Law Enforcement Communications Center by fax or email prior to the transport in the event that the activity cannot take place.

The amendment to §57.359, concerning Possession, stipulates that eggs possessed under a farmer's permit must be kept at the permitted farm facility. A farming permit allows the possession, incubation, hatching, and growing of alligators, but it does not authorize egg collection (although farmers may obtain nest authorizations and nest stamps and engage in collection activities); therefore, the amendment makes clear that once an alligator egg is possessed under a farmer's permit, it must remain in the farming facility of the permittee, which is necessary to monitor the movement of alligator eggs from the wild into commercial activities. The amendment also provides that all meat products processed and packaged, rather than meat products finally processed and packaged, by a farmer or wholesale dealer must be accompanied by an invoice, which is necessary because the amendment to §57.357, concerning Purchase and Sale of Alligators, allows wholesale dealers to sell partially processed alligators, for reasons discussed in the amendment to §65.352, concerning Definitions. Finally, the amendment alters the citation to the definition of skull length, which is necessary because the citation has changed as the result of the amendment to §65.352, concerning Definitions.

The amendment to §57.360, concerning Report Requirements, retitles the section Reporting and Recordkeeping, implements the standardized language regarding department forms (discussed previously in this preamble), and replaces the quarterly reporting requirement of farmers operating incubation-only facilities with a one-time reporting requirement (also discussed earlier in this preamble). Finally, the amendment clarifies that a wholesale dealer is required to produce a copy of an Alligator Transaction Report only to a department employee acting in the discharge of official duties.

The amendment to §57.361, concerning Alligator Farm Facility Requirements, implements the standardized language regarding department forms (discussed previously in this preamble), requires applications to be accompanies by the GPS coordinates and a map of the prospective facility, requires alligators in a farm to be kept within the facility, requires set minimum criteria for egg incubators, requires hatchlings to be transferred to a farming facility from an incubator-only facility by October 1 of each year, clarifies that a hide tag issued to a farming facility may not be used on an alligator killed under and hunting license, and that alligators within an alligator farm may not be hunted for sport. The department believes that utilization of widely available and extremely accurate GPS technologies to identify exact boundaries of alligator farm facilities will reduce confusion and misunderstandings as to the exact geographical area under regulation as an alligator farm; therefore, the amendment requires applicants for an alligator farming permit to supply a map and the GPS coordinates of the facility area. The amendment also requires alligators kept under a farming permit to be retained in the facility. Although it is intuitive that alligator stock should be kept within a facility, it is necessary to stipulate that requirement by rule in order to establish a regulatory duty on the part of permittees to prevent escape. The amendment also establishes environmental control standards for egg incubation facilities. Alligator eggs are a public resource and their collection for commercial purposes is a permit privilege. The department believes that basic environmental control standards should exist in order to prevent possible waste of a public resource; therefore, the amendment requires incubators to be capable of maintaining water and air temperatures of 85 to 91 degrees Fahrenheit on a continuous basis when eggs and hatchlings are present. The amendment also establishes that incubator-only facilities are farming facilities for which a farming permit is required and requires hatchlings at such facilities to be transferred to a grow-out farm by October 1 of each year. Although most incubation facilities are located within a grow-out facility, there are incubator-only facilities. The amendment clarifies that such facilities are alligator farms for which a farming permit is necessary. Because such facilities do not meet the facility requirements established by the subchapter for growing alligators to adult size, the amendment stipulates that all hatchlings be moved once they have achieved hatchling status and are capable of surviving in a grow-out facility. The amendment also prohibits recreational hunting within alligator farms. The department believes that alligator farms, as commercial entities, should not be engaged in the offering of recreational hunting opportunity, since the alligators in farms are confined and their hunting within a farm would therefore not be fair chase. There are abundant opportunities in Texas for alligator hunting in the wild. Therefore, the amendment prohibits the use of a hide tag issued to a farming facility to be used on an alligator killed under a recreational hunting license and creates an offense for allowing the sale, offering for sale, or the acceptance of such an offer for the killing of alligator within a farming facility. Finally, the amendment also makes various nonsubstantive grammatical and organizational changes.

The amendment to §57.362, concerning Importation and Exportation, implements the language regarding department forms (discussed earlier in this preamble); clarifies that an alligator import permit is not required for activities authorized under a permit issued under the authority of Parks and Wildlife Code, Chapter 43, Subchapter C; restricts import tag eligibility to wholesale dealers, retail dealers, and farmers; establishes a period of validity for an import permit; establishes a notification requirement similar to those for live alligator transport and egg collection activities (for the same reasons addressed in those discussions earlier in this preamble); updates a reference to a fee amount; and reiterates the prohibition on the export of alligator eggs. Current rules do not specifically identify the classes of permittees authorized to obtain import tags from the department, although for all practical purposes the rules governing possession of alligators restrict such activities to persons holding wholesale, retail, or farming permits. Similarly, current rules do not state the period of validity for an import permit, although again, for all practical purposes it is connected to the period of validity of the permits that must be possessed in order to engage in the activity, all of which are one year. Therefore, for purposes of clarity, the amendment restricts the issuance of import permits to persons holding a wholesale, retail, or farming permit and establishes a period of validity from the date of purchase until the immediately following August 31. The amendment also clarifies provisions governing possession of alligators taken by sport or recreational license in another state. The intent of the current provision is to exempt recreational hunters from provisions that apply to commercial activity; however, the department has encountered situations in which alligators lawfully taken in another state have been sold to a third party and then introduced to Texas for commercial purposes. The amendment clarifies that an alligator lawfully taken in another state may be brought into Texas without an import permit, but it must be accompanied by evidence of lawful possession or take and cannot have been sold or exchanged for anything of value in return, including for transport or delivery of the alligator.

The amendment to §57.365, concerning Management Tag, quantifies the size of alligators for which a management tag could be used to harvest and update a reference to fee amounts.

The department received three comments opposing adoption. Each commenter offered multiple reasons or rationale for opposing adoption. Those comments, accompanied by the department's response to each, follow. The department notes that because each comment contained multiple points, the total number of responses is greater than the number of commenters.

One commenter opposed adoption and stated that there should be a definition for "alligator nest." The department disagrees with the comment and responds that a definition of "alligator nest" is unnecessary because the department issues nest stamps based on location received from the landowner and subsequently verified, if necessary, by the department. The common and ordinary meaning of "nest" is "a place where eggs are laid and incubated." Therefore, it is incumbent upon the landowner to ensure that what they report to the department as an alligator nest is, in fact, an alligator nest. No changes were made as a result of the comment.

One commenter opposed adoption and stated that nest disturbance does not result in hatchling mortality. The department disagrees with the comment and responds that there is a strong negative correlation between nest disturbance and hatchling survival. No changes were made as a result of the comment.

Two commenters opposed adoption and stated that the rules should allow for provisional issuance of nest stamps to persons who have a record of compliance in order to take advantage of environmental conditions that are optimal for egg collection. The department agrees with the comment and has made changes accordingly.

Two commenters opposed adoption and stated that the notification "window" for egg collectors (not less than 24 hours nor more than 48 hours prior to engaging in collection activities) will cause hardship because egg collectors do not know how long it will take to complete activities on any given property. The department disagrees with the comments and responds that the rules do not require any collector to estimate how long egg collection efforts will take, only to provide notice to the department that collection activities will occur. No changes were made as a result of the comments.

The department received three comments supporting adoption of the proposed rules.

The amendments are adopted under the authority of Parks and Wildlife Code, §65.003, which authorizes the commission to regulate taking, possession, propagation, transportation, exportation, importation, sale, and offering for sale of alligators, alligator eggs, or any part of an alligator that the commission considers necessary to manage this species, including regulations to provide for the periods of time when it is lawful to take, possess, sell, or purchase alligators, alligator hides, alligator eggs, or any part of an alligator; and limits, size, means, methods, and places in which it is lawful to take or possess alligators, alligator hides, alligator eggs, or any part of an alligator; and control of nuisance alligators.

§65.358.Alligator Egg Collection.

(a) A landowner may apply for alligator nest stamps by submitting a completed application for nest stamp issuance to the department on a form supplied or approved by the department. The application must contain the GPS coordinates of each known alligator nest and a map showing the location and dimensions of the property where the nests are located.

(b) The department may make a conditional partial issuance of nest stamps to egg collectors on properties that have historically received nest stamps, based on biological factors and compliance history; however, no further issuance of nest stamps shall take place until the egg collector who has received partial issuance has submitted complete nest location data for the property, including nests disturbed under the partial issuance.

(c) The department may, at its discretion, verify reported nest locations to confirm the accuracy of application materials.

(d) It is unlawful for a landowner to utilize a nest stamp for a tract of land or water other than the tract for which the stamp was originally issued.

(e) An alligator egg collector shall conduct egg collection activities only on the tracts of land or water designated for the stamps in their possession.

(f) Alligator eggs shall be collected from the wild only by hand.

(g) No person may possess alligator eggs without possessing an egg collection permit or a valid alligator farmer permit.

(h) No person may engage in egg collection activities between sunset and one half-hour before sunrise.

(i) When engaged in egg collection activities, an alligator egg collector must possess on his or her person one or more current nest stamps and an Alligator Nest Stamp Authorization on a form supplied or approved by the department. At least one person in possession of a current nest stamp and nest stamp authorization must be present during all collection activities.

(j) No person may collect alligator eggs without possessing a valid hunting license.

(k) Immediately upon collection and throughout transportation and incubation each clutch of eggs must be accompanied by a completed nest stamp.

(l) No person to whom the department has issued a nest stamp may engage in egg collection without having completed and submitted to the department's Law Enforcement Communication Center by fax or email an egg collection activity notification on a form supplied or approved by the department. The notification required by this subsection shall be submitted not less than 24 hours nor more than 48 hours prior to beginning egg collection activities. If for any reason egg collection activities cannot take place after the department has been notified under this subsection, the department's Law Enforcement Communications Center shall be contacted by fax or email to cancel the notification. The cancellation notice must be received by the department prior to the initiation time indicated on the egg collection activity notification.

(m) An alligator egg collector may sell alligator eggs only to a farmer designated by permit.

§65.360.Reporting and Recordkeeping Requirements.

(a) A Nuisance Alligator Hide Tag Report shall be completed by a control hunter on a form supplied or approved by the department immediately upon take and shall be submitted to the department within seven days. A dealer or person possessing the alligator hide shall retain a copy of the report until the hide is shipped or sold out of state, at which time the copy shall be forwarded to the department.

(b) A person receiving hide tags from the department shall complete and submit an Annual Hide Target Report on a form supplied or approved by the department accounting for all tags by October 10 following the end of the open season for which tags were issued. Unused tags shall be returned with this report.

(c) A wholesale dealer shall complete and submit an Alligator Transaction Report on a form supplied or approved by the department by October 31 and by the last day of every third month thereafter detailing purchase and sale transactions during the license year. A wholesale dealer shall retain a copy of each report required by this subsection for a minimum of two years and shall produce such records upon the request of a department employee acting in the discharge of official duties.

(d) A retail dealer shall retain records of all purchases from wholesale dealers for a minimum of two years.

(e) An alligator import permit holder shall complete and submit an Alligator Import Report on a form supplied or provided by the department within 30 days following permit period termination.

(f) Except for farmers operating an incubation-only facility under §65.361(e) of this title (relating to Alligator Farm Facility Requirements), a farmer shall submit quarterly reports on a form supplied or approved by the department within 15 days of the end of each quarterly period (February, May, August, and November).

(g) A farmer operating an incubation-only facility under the provisions of §65.361(e) of this title shall file an Incubation Summary on a form supplied or approved by the department no later than October 1 of each year.

(h) An alligator egg collector shall complete and submit an Annual Egg Collection Report provided or approved by the department and return all unused nest stamps by October 1 of each year.

(i) All persons to whom hide tags or nest stamps have been issued shall notify the department in writing within 15 days in the event that any tags or stamps are lost, stolen, mutilated, or destroyed. The department will not replace tags or stamps so reported.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on August 4, 2020.

TRD-202003151

Colette Barron-Bradsby

Acting General Counsel

Texas Parks and Wildlife Department

Effective date: August 24, 2020

Proposal publication date: April 17, 2020

For further information, please call: (512) 389-4775