Commission Agenda Item No. 8
Presenter: Lance Robinson

Action
Oyster Mariculture Rules
Recommended Adoption of Proposed Rules
May 21, 2020

I.      Executive Summary: With this item, the staff seeks the adoption of proposed rules related to the establishment of a cultivated oyster mariculture program in Texas coastal waters.

II.     Discussion: During the 86^th Regular Session, the Texas Legislature passed House Bill 1300, which provides authority to the Texas Parks and Wildlife Commission (Commission) to adopt rules to establish a program governing cultivated oyster mariculture (aquaculture) in Texas coastal waters. The proposed rules provide the framework for various elements of the program, including siting of mariculture operations, the application process, marking of permitted areas, and harvest and reporting requirements. Modifications to 31 Texas Administrative Code chapter 57, subchapter F (related to Broodfish Permits) and changes to chapter 53 (related to Fees) are necessary to allow for the collection of oysters for use in hatchery operations and for permit fees.  The proposal is intended to increase commercial opportunities for the production of oysters on the Texas coast.

The proposed rules appeared in the April 17, 2020 issue of the Texas Register (45 TexReg 2483, 2485, 2488). A summary of public comment on the proposed rules will be presented at the time of the hearing.

III.    Recommendation:  The staff recommends that the Commission adopt the proposed motion:

“The Texas Parks and Wildlife Commission adopts amendments to 31 Texas Administrative Code §53.13, concerning Commercial Licenses and Permits (Fishing), and §§57.391, 57.392, 57.394 — 57.398, 57.400, and 57.401, concerning Collection of Broodfish from Texas Waters, and adopts new §§58.350 — 58.361, concerning Cultivated Oyster Mariculture, with changes as necessary to the proposed text as published in the April 17, 2020 issue of the Texas Register (45 TexReg 2483, 2485, 2488).”

---

Commission Agenda Item No. 8
Exhibit A

STATEWIDE OYSTER FISHERY PROCLAMATION

PROPOSAL PREAMBLE

1. Introduction.

        The Texas Parks and Wildlife Department (the department) proposes new §§58.350-58.361, concerning Cultivated Oyster Mariculture. The new sections would be located in new Subchapter E, Cultivated Oyster Mariculture.

        The 86^th 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 proposed new rules would 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.

        Proposed new §58.350, concerning Applicability, would establish the new subchapter as the primary administrative law governing cultivated oyster mariculture in this state and would further stipulate 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.

        Proposed new §58.351, concerning Application of Shellfish Sanitation Rules of Department of State Health Services, would require 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 proposed new rules reference the applicable rules of DSHS rather than duplicate them, which has the additional benefit of preventing unintended regulatory conflict.

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

        Proposed new §58.352(1) would define “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.

        Proposed new §58.352(2)  would define “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 proposed new rules is that of keeping farmed oysters separate from wild oysters, in order to prevent potential resource depletion on public oyster reefs by providing an opportunity or incentives for undersized oysters to be removed from those reefs. To that end, the proposed new rules would 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.

        Proposed new §58.352(3) would define “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.

        Proposed new §58.352(4) would define “gear tag” as “a tag composed of material as durable as the device to which it is attached.” The definition is necessary because the proposed 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.

        Proposed new §58.352(5)  would 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.

        Proposed new §58.352(6)  would define “larvae” as “the free-swimming, planktonic life stage of an oyster.” The definition is necessary because the proposed 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 proposed 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 would be regulated in different types of facilities under separate permit categories.

        Proposed new §58.352(7) would define “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 proposed new rules would 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 proposed new rules.

        Proposed new §58.352(8) would define “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 proposed 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 proposed new rules require a legal definition for the structures where larval oysters are held and cultured.

        Proposed new §58.352(9)  would define “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.

        Proposed new §58.352(10) would define “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.

        Proposed new §58.352(11) would define “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.

        Proposed new §58.352(12) would define “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.

        Proposed new §58.352(13) would define “Prohibited Area” as having the meaning defined by Texas 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.

        Proposed new §58.352(14) would define “Restricted Area” as having the meaning defined by Texas 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.

        Proposed new §58.352(15) would define “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.

        Proposed new §58.352(16) would define “shellstock (stock)” as “live eastern oysters (Crassotrea virginica) in the shell.” The definition establishes the taxonomic identity of the only species of oyster the proposed rules would allow to be grown under a cultivated oyster mariculture permit.

        Proposed new §58.352(17) would define “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.

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

        Proposed new subsection (a) would prohibit 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.

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

        Proposed new subsection (c) would set 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.

        Proposed new subsection (d) would prohibit 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 proposed new rules would stipulate that requirement.

        Proposed new subsection (e) would establish that permits issued under the proposed new subchapter would be 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.

        Proposed new subsection (f) would require 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 would be 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.

        Proposed new subsection (g) would restrict 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 proposed new rules would 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.

        Proposed new subsection (h) would set forth the department’s inspection, sampling, and permit provision authority. In order to ensure that the provisions of the proposed 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 proposed new rules would reflect those priorities. Additionally, it is impossible for the proposed new rules to contemplate and address the unique circumstances that could exist in any given mariculture operation. For this reason, the rules would allow the department to include specific permit provisions in any given permit, as circumstances dictate.

        Proposed new subsection (i) would prescribe 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 proposed new subsection would require 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 proposed new provision would make an exception for dermo (Perkinosis marinus), a microscopic oyster parasite that is so common in natural ecosystems as to be ubiquitous.

        Proposed new subsection (j) would allow 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, proposed new subsection (k) would so stipulate.

        Proposed new subsection (l) would establish 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 proposed new rules would 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).

        Proposed new subsection (m) would restrict 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.

        Proposed new subsection (n) would address subpermittees. The department acknowledges that it is not possible for a single permittee to conduct all the activities authorized by a permit, so the proposed new rules would allow permittees to designate subpermittees to perform permitted activities in the absence of the permittee. In order to prevent confusion and misunderstandings, the proposed new rules would 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 subpermittee authorization signed and dated by both the permittee and the subpermittee. The proposed new subsection also would stipulate 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.

      Proposed new subsection (o) would prescribe the marking requirements for a permitted area. The proposed new subsection would require the installation and maintenance of boundary markers, require 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 proposed new subsection would also require the installation, functionality, and maintenance of any safety lights and signals required by applicable federal regulations, including regulations of the United States Coast Guard (U.S.C.G.), and require 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.

        Proposed new subsection (p) would prohibit the transfer or sale of permits. The department reasons that the permit application process set forth in the proposed 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.

        Proposed new subsection (q) would require 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, proposed new subsection (r) would require 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 would be required to bear, in legible fashion, the name and address of the permittee and the permit identifier of the permitted area. The proposed new subsection would allow the department to identify components so permittees could retrieve or dispose of them properly.

        Proposed new subsection (s) would require 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 proposed new subsection would require information about cargo destination, which would allow the matching of records required to be maintained by buyers and sellers of shellfish.

        Proposed new subsection (t) would set 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 proposed new rules would 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 would be required to accompany all oyster seed or larvae that is possessed outside of a permitted area. The document would be required to bear 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 account for and describe 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.

        Proposed new subsection (u) would require vessels used to engage in activities regulated under the proposed 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.

        Proposed new §58.354, concerning Oyster Seed Hatchery, would allow 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 would stipulate 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.

        Proposed new §58.355, concerning Permit Application, would prescribe the application requirements to obtain a permit issued under the proposed new subchapter. Proposed new subsection (a) would require 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 government entities. Therefore, the application would require the key information necessary for the department to determine whether or not permit issuance is feasible. The application would require 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). Proposed new subsections (b) and (c) would create a mechanism for public comment on proposed projects. Proposed new subsection (b) would stipulate 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. Proposed new subsection (c) would, for prospective projects within or partially within public waters, require 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 would 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 would be borne by the applicant. The proposed new subsection would also condition any permit issuance on payment of publication costs to the department. Proposed new subsection (d) would stipulate the various fees associated with permits issued under the proposed new subchapter must accompany the application.

        The fee requirements for permits issued under the proposed new subchapter are created in this rulemaking; however, the fee amounts are established in another proposed rulemaking published elsewhere in this issue. As a convenience, the department includes an explanation in both proposed rulemakings to explain the department’s methodology for determining the fee amounts.  The application fee for a permit issued under the proposed new subchapter would be $200, which represents the cost to the department of the time for a biologist to evaluate a prospective project. The proposed annual fee for a COMP is $450 per acre per year (unless the COMP is not located in public water, in which case the fee would consist solely of the same inspection fee as that for a nursery facility, since the inspection would be similarly less extensive), which is the estimated cost to the department for conducting an annual facility inspection, which is an NSSP requirement. 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, which yields a total cost of approximately $364. 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, taking 20 percent of the department’s inspection expense rounding up to the nearest $50 increment yields a permit fee of $450.

        The proposed annual fee for a nursery permit would be $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, yielding a total cost of approximately $138. 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, taking 20 percent of the department’s inspection expense (≈$28) and rounding 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 $0.023 per square foot per year will be assessed, which represents a proportionally equivalent value of a COMP for the use of public water.

        Proposed new §58.356 would provide for permit renewal, which would require an applicant to submit an administratively complete application for permit renewal, accompanied by the appropriate fee.

        Proposed new §58.357, concerning Permit Amendment, would provide 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 period 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 would have to go through the permit application process set forth in §58.355. The proposed new subsection would also prohibit amendment of an expired permit, for obvious reasons.

        Proposed new §58.358, concerning Reporting and Recordkeeping would establish the necessary administrative responsibilities of permittees. The proposed new section would require 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 proposed new subchapter. Therefore, the proposed 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 proposed new section would therefore make 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 proposed new subsection also would stipulate a records retention requirement of two years. Violations of the proposed new rules are a Class B misdemeanor by statute, and two years is the statute of limitations for Class B misdemeanors.

        Proposed new §58.359, concerning Agency Decision to Refuse to Issue or Renew Permit; Review of Agency Decision, would allow 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 proposed new section would allow 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 persons who exhibit a demonstrable disregard for laws andregulations 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 proposed 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 amendment 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 consist 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.

        Proposed new §58.360, concerning Prohibited Acts, would identify specific acts that constitute violations of the proposed new subchapter.

        Proposed new paragraph (1) would make 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 would obviate the opportunity for persons to engage in the harvest of native oysters while transporting farmed oysters. For similar reasons proposed new paragraph (2) would create an offense for commingling or allowing the commingling of wild-caught and farmed oysters.

                 Proposed 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.

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

                 Proposed new paragraph (6) would create 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 proposed new §58.353(q), permittees would be required to remove, at the expense of the permittee, all containers, enclosures and associated infrastructure from public waters within 60 calendar days of permit expiration or revocation. The proposed new paragraph would make it a criminal offense not to do so.

        Proposed new paragraph (7) would make it 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 proposed new subchapter, but to any violation of the proposed new subchapter or the provisions of a permit issued under the proposed new subchapter.

        Finally, proposed new paragraph (8) would make it 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.

        Proposed new section §58.361, concerning Violations and Penalties, would provide 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 proposed 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.

2. Fiscal Note.

        Robin Riechers, Coastal Fisheries Division Director, has determined that for each of the first five years that the new rules as proposed are in effect, there will be no fiscal implications to state or local governments as a result of administering or enforcing the rules. The fees imposed by the proposed new rules will recover the agency’s cost of routine administration and enforcement.

3. Public Benefit/Cost Note.

        Mr. Riechers also has determined that for each of the first five years that the rules as proposed are in effect:

        (A) The public benefit anticipated as a result of enforcing or administering the rules as proposed will be the discharge of the legislature’s direction under Parks and Wildlife Code, §75.0103(a) to establish a program governing cultivated oyster mariculture and the discharge of the agency’s general duty to protect and conserve the aquatic resources of the state and provide for water safety.

        There will be adverse economic effects on persons required to comply with the rules as proposed, consisting of the costs to prepare the operational plan and natural resource survey required by the rules; fees; costs for gear tags; and the cost of the public notice required by the rules. The estimated maximum probable annual economic costs for persons operating a COMP are $2,050 for the first year ($200 for the permit application, $450 per acre per year; approximately $200 for gear tags; $500 for the Operation Plan; $500 for the natural resource survey; and $200 for the public notice) and $450 each year thereafter ($450 per acre per year). This amount would be less for a COMP located on private property, since the inspection fee would be $170 and the per-acre fee for use of public water would not apply. The probable annual economic costs for a person operating a nursery facility are estimated to be $370 for the first year ($200 for the initial application and $170 per year plus $0.023 per square foot).

        (B) Under the provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses, micro-businesses, and rural communities. As required by Government Code, §2006.002(g), the Office of the Attorney General has prepared guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small businesses. Those guidelines state that an agency need only consider a proposed rule’s “direct adverse economic impacts” to small businesses and micro-businesses to determine if any further analysis is required. For that purpose, the department considers “direct economic impact “to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services.

         The department has determined that no small businesses, microbusiness, or rural communities will be affected by the proposed new rules. House Bill 1300 created the legal basis for the regulation of cultivated oyster mariculture operations in Texas; therefore, no person is presently engaged in the practice, which means the proposed new rules cannot impact any small businesses, micro-businesses, or rural community. Therefore, the department has not prepared the economic impact statement or regulatory flexibility analysis described in Government Code, Chapter 2006.

        (C) The department has not drafted a local employment impact statement under the Administrative Procedures Act, §2001.022, as the agency has determined that the rules as proposed will not impact local economies.

        (D) The department has determined that Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rules.

        (E) The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rules.

        (F) In compliance with the requirements of Government Code, §2001.0221, the department has prepared the following Government Growth Impact Statement (GGIS).  The rules as proposed, if adopted, will:

                 (1) neither create a government program, as directed by the Texas Legislature under the provisions of Parks and Wildlife Code, §75.0103(a);

                 (2) not result in an increase or decrease in the number of full-time equivalent employee needs;

                (3) not result in a need for additional General Revenue funding;

                 (4) affect the amount of any fee, by imposing application and facility fees;

                 (5) will create a new regulation (the entire subchapter is new);

                 (6) not expand, limit, or repeal an existing regulation;

                 (7) neither increase nor decrease the number of individuals subject to regulation; and

                 (8) not positively or adversely affect the state’s economy, although the creation of the cultivated oyster mariculture program has the possibility of creating a new industry in the state.

4. Request for Public Comment.

        Comments on the proposal may be submitted to Lance Robinson at (512) 389-4649, e-mail: lance.robinson@tpwd.texas.gov. Comments also may be submitted via the department’s website at http://www.tpwd.texas.gov/business/feedback/public_comment/.

5. Statutory Authority.

        The new sections are proposed 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.

        The proposed new sections affect Parks and Wildlife Code, Chapter 75.

6. Rule Text.

        §58.350. Applicability. This subchapter applies to cultivated oyster mariculture in this state. No provision of this subchapter may be construed as to relieve any person of the need to comply with any other applicable provision of federal, state, or local laws.

        §58.351. Application of Shellfish Sanitation Rules of Department of State Health Services.  All cultivated oyster mariculture operations conducted under Parks and Wildlife Code, Chapter 75, must comply with the applicable shellfish sanitation rules of the Texas Department of State Health Services in 25 TAC Chapter 241, Subchapter B. 

        §58.352. Definitions. When used in this subchapter, the following words and terms shall have the following meanings, except where the context clearly indicates otherwise. All other words and terms used in this subchapter shall have the meanings assigned by the Parks and Wildlife Code.

                 (1) Administratively complete — An application for a permit or permit renewal that contains all information requested by the department, as indicated on the application form, without omissions. 

                 (2) Container — Any bag, sack, box, crate, tray, conveyance, or receptacle used to hold, store, or transport oysters possessed under a permit issued under this subchapter.

                 (3) Cultured oyster mariculture facility (facility)—Any building, cage, or other infrastructure within a permitted area.

                 (4) Gear tag—A tag composed of material as durable as the device to which it is attached. 

                 (5) Infrastructure—A building, platform, dock, vessel, cage, nursery structure, or any other apparatus or equipment within a permitted area. 

                 (6) Larvae—The free-swimming, planktonic life stage of an oyster. 

                 (7) National Shellfish Sanitation Program (NSSP) — 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.

                 (8) Nursery structure—A tank or chamber or system of tanks or chambers or other, similar devices in which a cultivated oyster is grown.

                 (9) Oyster seed — Shellstock of less than legal size.

                 (10) Permitted area—The geophysical and/or geographical area identified in a permit where cultivated oyster mariculture activities are authorized.

                 (11) Permit Identifier (permit ID)—A unique alphanumeric identifier issued by the department to a permittee holding a Cultivated Oyster Mariculture permit.

                 (12) Permittee—A person who holds a permit issued under this subchapter.

                (13) Prohibited Area—As defined by Texas Health and Safety Code, §436.002(27).

                 (14) Restricted Area — As defined by Texas Health and Safety Code, §436.002(30).

                 (15) Restricted visibility — Any condition in which visibility is restricted by fog, mist, falling snow, heavy rainstorm, sandstorms, or any other similar causes.

                 (16) Shellstock (stock) — Live eastern oysters (Crassotrea virginica) in the shell.

                 (17) Wild-caught oyster—An oyster harvested from natural oyster beds. 

        §58.353. General Provisions.

                 (a) No person may engage in cultivated oyster mariculture in this state unless that person either:

                         (1) physically possesses a valid permit issued by the department authorizing the activity; or

                         (2) is acting as a subpermittee as provided in this subchapter.

                 (b) A Cultivated Oyster Mariculture Permit (COMP) authorizes a person to purchase, receive, grow, and sell cultivated oysters.

                 (c) A Cultivated Oyster Mariculture Permit—Nursery Only (nursery permit) authorizes a person to purchase, receive, and grow oyster seed and larvae, and sell oyster seed to a COMP permittee.

                 (d) No person may conduct an activity authorized by a permit issued under this subchapter at any location other than the location specified by the permit.

                 (e) The period of validity for a permit issued under this subchapter is 10 years, subject to the limitations of this subchapter.

                 (f) Unless otherwise specifically authorized in writing be the department, one year from the date of issuance of a COMP and by the anniversary of the date of issuance for each year thereafter, the permittee must provide evidence to the department’s satisfaction that at least 100,000 oyster seed per acre of permitted area has been planted. 

                 (g) Unless otherwise specifically authorized by the department in writing, cultivated oyster mariculture is restricted to seed and larvae from native Eastern oyster (Crassostrea virginica) broodstock collected in Texas waters and propagated in a hatchery located in Texas. 

                         (1) The department may authorize a person permitted under this subchapter to, on or before December 31, 2027, import:

                                    (A) triploid, tetraploid seed, larvae, and or 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

                                  (B) seed, larvae 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. 

                         (2) A department authorization made under the provisions of this subsection must be in writing and provide for any permit conditions the department deems necessary.

                         (3) The department will not authorize the possession of any oyster, larvae, or oyster seed that the department has determined, in the context of the prospective activity, represents a threat to any native oyster population, including to genetic identity.

                 (h) The department may:

                         (1) inspect any permitted area, facility, infrastructure, container, vessel, or vehicle used to engage in cultivated oyster mariculture; 

                         (2) sample any oyster in a permitted area, facility, container, vessel, or vehicle used to engage in cultivated oyster mariculture in order to determine genetic lineage; and

                         (3) specify any permit provisions deemed necessary.

                 (i) The holder of a COMP or nursery permit must notify the department within 24 hours of the:

                         (1) discovery of any disease condition within a permitted area; and

                         (2) discovery of any condition, manmade or natural, that creates a threat of the unintentional release of stock or larvae. 

                         (3) The requirements of this subsection  do not apply to the discovery of dermo (Perkinosis, Perkinsus marinus).

                 (j) The department may take any action it considers appropriate, including ordering the removal of all stock and larvae from a permitted area or facility and the cessation of permitted activities, upon:

                         (1) a determination that a disease condition other than dermo (Perkinsosis, Perkinsus marinus) exists; or

                         (2) the suspension or revocation by a federal or state entity of a permit or authorization required under §58.355 of this title (relating to Permit Application).

                  (k) The department may order the suspension of any or all permitted activities, including the removal of all stock and larvae from a permitted area or facility, upon determining that a permittee is not compliant with any provision of this subchapter, which suspension shall remain in effect until the deficiency is remedied and the department authorizes resumption of permitted activities in writing.

                 (l) Size limit.

                         (1) No person may remove or cause the removal of any oyster less than 2.5 inches in length (measured along the greatest length of the shell) from a COMP permitted area.  

                         (2) Oysters greater than one inch in length (as measured along the greatest length of the shell) produced under a nursery permit in waters classified as a Restricted Area must be transferred to a DSHS-approved depuration area and held in that depuration area for a minimum of 120 days before harvest.

                         (3) No person may remove or cause the removal of oysters obtained by a COMP from a nursery facility located in waters classified as a Prohibited or Restricted Area until a minimum of 120 days following the date of transfer to the COMP.

                 (m) Harvest of oysters under this subchapter is unlawful between sunset and 30 minutes after sunrise.

                 (n) Except as may be specifically provided otherwise in this section, activities authorized by a permit issued under this subchapter shall be conducted only by the permittee or subpermittee named on the permit.

                         (1) A permittee may designate subpermittees to perform permitted activities in the absence of the permittee. 

                         (2) At all times that a subpermittee is conducting permitted activities, the subpermittee shall possess on their person:

                                  (A) a legible copy of the appropriate permit under which the activity is being performed; and 

                                  (B) a completed subpermittee authorization. The subpermittee authorization shall be on a form provided or approved by the department and shall be signed and dated by both the permittee and the subpermittee.

                         (3) It is an offense for a permittee to allow any permitted activity to be performed by a person not listed with the department as a subpermittee as required under this subsection.  

                         (4) A permittee and subpermittee are jointly liable for violations of this subchapter or the provisions of a permit issued under this subchapter.

                 (o) A permittee shall, prior to the placement of any infrastructure within a permitted area located in or on public water:

                         (1) mark the boundaries of the permitted area with buoys or other permanent markers and continuously maintain the markers until the termination of the permit. All marker, buoys, or other permanent markers must:

                                  (A) be at least six inches in diameter;

                                  (B) extend at least three feet above the water at mean high tide;

                                  (C) be of a shape and color that is visible for at least one half-mile under conditions that do not constitute restricted visibility; and

                                  (D) be marked with the permit identifier assigned by the department to the permitted area, in characters at least two inches high, in a location where it will not be obscured by water or marine growth; and

                        (2) install safety lights and signals required by applicable federal regulations, including regulations of the United States Coast Guard (U.S.C.G.) must be installed and functional. A permittee shall repair or otherwise restore to functionality any light or signal within 24 hours of notification by the U.S.C.G or the department.

                 (p) Permits shall not be transferred or sold.

                 (q) Permittees must remove, at the expense of the permittee, all containers, enclosures and associated infrastructure from public waters within 60 calendar days of permit expiration or revocation.

                (r) A valid gear tag must 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 the name and address of the permittee and the permit identifier of the permitted area. The information on a gear tag must be legible.

                 (s) It is unlawful for any person to remove or cause the removal of oysters from a COMP area for purposes of delivery and sale unless the oysters are in a container that has been tagged in accordance with the applicable provisions of the NSSP concerning shellstock identification, and this subchapter. In addition to the tagging requirements imposed by the NSSP, the tag must clearly identify the destination, by permit identifier and/or business name and physical address, to which the shellstock is to be delivered.

                 (t) Except as provided by subsection (s) of this section for oysters transported for delivery and sale, it is unlawful for any person to possess oyster seed or larvae outside of a permitted area unless the person also possesses a completed Oyster Seed Transport Document. 

                         (1) An Oyster Seed Transport Document must:

                                  (A) be on a form provided or approved by the department;

                                  (B) contain the name, address and, if applicable, permit identifier of each person from whom the oyster seed or larvae was obtained;

                                  (C) contain the name, address, and permit identifier of each permittee to whom the oyster seed or larvae is to be delivered; and

                                  (D) precisely account for and describe all containers in possession.

                         (2) Each Oyster Seed Transport Document shall bear a numeric or alphanumeric unique identifier supplied by the permittee. Identifiers under this subsection must be systematic and sequential and no identifier may be used more than once. 

                 (u) A vessel used to engage in activities regulated under this subchapter shall prominently display an identification plate supplied by the department at all times the vessel is being used in such activities. 

        §58.354. Oyster Seed Hatchery. 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 may furnish oyster seed or larvae produced from wild-caught oysters to a COMP or nursery permitted under this subchapter; however, all oysters that leave the hatchery shall be accompanied by a transport document meeting the requirements of §58.353(t) of this title (relating to General Provisions).

        §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 Commercial Licenses 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 §58.13 of this title (relating to Commercial Licenses and Permits (Fishing)).

        §58.357. Amendment. 

                 (a) The department may amend a permit issued under the provisions of this subchapter, provided the permittee:

                         (1) has submitted an administratively complete application for permit amendment on a form provided or approved by the department; and

                         (2) possesses all necessary authorizations and permits required by any other state or federal entity for the conduct of activities contemplated in the permit amendment.        

                 (b) The department will not approve an amendment to increase the size of a permitted area. A permittee who seeks to increase the size of a permitted area must apply for a new permit and all provisions of this subchapter relating to permit applications apply.

                 (c) An expired permit is not eligible for permit amendment.

        §58.358. Reporting and Recordkeeping.

                 (a) A permittee shall:

                         (1) maintain a current, accurate record of all shellstock and larvae acquired, introduced, removed, or harvested from a permitted facility;

                         (2) submit the monthly harvest reports prescribed by Parks and Wildlife Code, §66.019 on a form provided or approved by the department; and

                         (3) complete and submit an annual report to the department on a form provided or approved by the department by no later than January 31 of each year.

                 (b) The records and reports required by this section shall be continuously maintained by the permittee for two years from the date of the record or report.

        58.359. Agency Decision to Refuse to Issue or Renew Permit; Review of Agency Decision. 

                 (a) The department may refuse to issue to or renew a permit under this subchapter to any person who has been finally convicted of, pleaded nolo contendere to, received deferred adjudication, or assessed an administrative penalty for a violation of:

                         (1) this subchapter;

                         (2) Parks and Wildlife Code, Chapters 47, 66, 76, 77, 78, or 75 for which a commercial license or permit is required;

                         (3) a provision of the Parks and Wildlife Code that is not described by paragraph (2) of this subsection that is punishable as a:

                                  (A) Parks and Wildlife Code:

                                          (i) Class A or B misdemeanor;

                                          (ii) state jail felony;

                                          (iii) felony; or

                                          (D) offense under Parks and Wildlife Code, §63.002; or 

                         (4) the Lacey Act (16 U.S.C. §§3371-3378).

                         (b) The department may refuse to issue a permit under this subchapter to any person the department has evidence is acting on behalf of or as a surrogate for another person who is prohibited by the provisions of this subchapter from obtaining a permit under this chapter.

                         (c)  The department may refuse to issue a permit under this subchapter to any person who does not meet the criteria of this subchapter for issuance of a permit, including but not limited to failure to submit an administratively complete application.

                         (d) An applicant for a permit, permit renewal, or permit amendment under this subchapter may request a review of a decision of the department to refuse permit issuance, renewal, or amendment (as applicable).

                                  (1) An applicant seeking review of a decision of the department under this subsection must request the review within 10 working days of being notified by the department that the application has been denied.

                                  (2) Within 10 working days of receiving a request for review under this section, the department shall establish a date and time for the review.

                                  (3) The department shall conduct the review within 30 days of receipt of the request required by paragraph (2) of this subsection, unless another date is established in writing by mutual agreement between the department and the requestor.

                                  (4) The request for review shall be presented to a review panel. The review panel shall consist of three department managers with understanding of oyster mariculture requirements or other permits issued by the department, appointed or approved by the executive director or designee.

                                  (5) The decision of the review panel is final.

        §58.360. Prohibited Acts. Except as provided in this subchapter, it is an offense for a person holding a permit issued under this chapter to:

                 (1) possess a commercial oyster dredge or oyster tongs within a permitted area or aboard a vessel transporting oysters under the provisions of this subchapter;

                 (2) commingle or allow the commingling of wild-caught oysters with oysters possessed under the provisions of Parks and Wildlife Code, Chapter 75, and this subchapter;

                 (3) fail to notify the department within 24 hours upon the discovery of a disease condition within a permitted facility that is required to be reported under the provisions of this subchapter;

                 (4) fail to notify the department within 24 hours upon discovery of any condition that could result in the unintentional release of shellstock or larvae;

                 (5) fail to maintain all corner markers of the permitted area of a facility within public water;

                 (6) fail to remove all enclosures and infrastructure from public waters within 60 calendar days of permit expiration or revocation; 

                 (7) operate a COMP or nursery facility except as specified by this subchapter and the provisions of a permit; or 

                 (8) operate a COMP or nursery facility without all authorizations and permits required by any federal, state, or local governmental authority.

        §58.361. Violations and Penalties.

                 (a) 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 Parks and Wildlife Code, §75.0107.

                 (b) A permit issued under this section is not a defense to prosecution for any conduct not specifically authorized by the permit.

        This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.

        Issued in Austin, Texas, on

---

Commission Agenda Item No. 8
Exhibit B

CULTIVATED OYSTER MARICULTURE PERMIT FEES

PROPOSAL PREAMBLE

1. Introduction.

        The Texas Parks and Wildlife Department (the department) proposes an amendment to §53.13, concerning Commercial Licenses and Permits (Fishing). The proposed amendment would establish the fees for cultivated oyster mariculture permits issued under the provisions of Parks and Wildlife Code, Chapter 75. The proposed amendment also would correct a grammatical disagreement in the title of the section.

        The fee requirement for cultivated oyster mariculture permits would be imposed by another proposed rulemaking published elsewhere in this issue. As a convenience, the department includes an explanation in both proposed rulemakings to explain the department’s methodology for determining the fee amounts.  The application fee for a permit issued under the proposed new subchapter would be $200, which represents the cost to the department of the time for a biologist to evaluate a prospective project. The proposed 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 an NSSP requirement. 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 would be the same as for a nursery facility, because of similar costs to the department for inspections.

        The proposed annual fee for a nursery permit would be $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 $0.023 per square foot per year will be assessed, which represents a proportionally equivalent value of a COMP for the use of public water.

2. Fiscal Note.

        Robin Riechers, Coastal Fisheries Division Director, has determined that for each of the first five years that the amendment is in effect, there will be no fiscal implications to state or local governments as a result of administering or enforcing the rules. The fees imposed by the proposed new rule will recover the agency’s cost of routine administration and enforcement.

3. Public Benefit/Cost Note.

        Mr. Riechers also has determined that for each of the first five years that the rule as proposed is in effect:

        (A) The public benefit anticipated as a result of enforcing or administering the rule as proposed will be the discharge of the legislature’s direction under Parks and Wildlife Code, §75.0103(a) to establish a program governing cultivated oyster mariculture and the discharge of the agency’s general duty to protect and conserve the aquatic resources of the state and provide for water safety.

        There will be adverse economic effects on persons required to comply with the rule as proposed, consisting of the costs to prepare the operational plan and natural resource survey required by the rules; fees; costs for gear tags; and the cost of the public notice required by the rules. The estimated maximum probable annual economic costs for persons operating a COMP are $2,050 for the first year ($200 for the permit application, $450 per acre per year; approximately $200 for gear tags; $500 for the Operation Plan; $500 for the natural resource survey; and $200 for the public notice) and $450 each year thereafter ($450 per acre per year). This amount would be less for a COMP located on private property, since the per-acre fee for use of public water would not apply. The probable annual economic costs for a person operating a nursery facility are estimated to be $370 for the first year ($200 for the initial application and $170 per year plus $0.023 per square foot).

        (B) Under the provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses, micro-businesses, and rural communities. As required by Government Code, §2006.002(g), the Office of the Attorney General has prepared guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small businesses. Those guidelines state that an agency need only consider a proposed rule’s “direct adverse economic impacts” to small businesses and micro-businesses to determine if any further analysis is required. For that purpose, the department considers “direct economic impact “to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services.

         The department has determined that no small businesses, microbusiness, or rural communities will be affected by the proposed new rules. House Bill 1300 created the legal basis for the regulation of cultivated oyster mariculture operations in Texas; therefore, no person is presently engaged in the practice, which means the proposed new rules cannot impact any small businesses, micro-businesses, or rural community. Therefore, the department has not prepared the economic impact statement or regulatory flexibility analysis described in Government Code, Chapter 2006.

        (C) The department has not drafted a local employment impact statement under the Administrative Procedures Act, §2001.022, as the agency has determined that the rule as proposed will not impact local economies.

        (D) The department has determined that Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rule.

        (E) The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rule.

        (F) In compliance with the requirements of Government Code, §2001.0221, the department has prepared the following Government Growth Impact Statement (GGIS).  The rule as proposed, if adopted, will:

                 (1) not create a government program;

                 (2) not result in an increase or decrease in the number of full-time equivalent employee needs;

                 (3) not result in a need for additional General Revenue funding;

                 (4) affect the amount of any fee, by codifying application and facility fees;

                 (5) not create a new regulation;

                 (6) expand an existing regulation (by adding fee amounts for cultivated oyster mariculture permits), but would not otherwise limit or repeal an existing regulation;

                 (7) neither increase nor decrease the number of individuals subject to regulation; and

                 (8) not positively or adversely affect the state’s economy.

4. Request for Public Comment.

        Comments on the proposal may be submitted to Lance Robinson at (512) 389-4649, e-mail: lance.robinson@tpwd.texas.gov. Comments also may be submitted via the department’s website at http://www.tpwd.texas.gov/business/feedback/public_comment/.

5. Statutory Authority.

        The amendment is proposed 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.

        The proposed amendment affects Parks and Wildlife Code, Chapter 75.

6. Rule Text.

§53.13. Business Licenses[License] and Permits (Fishing).

        (a) – (c) (No change.)

        (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, $0.023 per square foot per year, if the nursery facility is located in public water.

        This agency hereby certifies the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.

        Issued in Austin, Texas, on

---

Commission Agenda Item No. 8
Exhibit C

PERMITS FOR THE COLLECTION OF BROODSTOCK FROM PUBLIC WATERS

PROPOSAL PREAMBLE

1.      Introduction

        The Texas Parks and Wildlife Department proposes amendments to §§57.391–57.392, 57.394–57.398 and 57.400, concerning Collection of Broodfish from Texas Waters. The proposed amendments would conform the language of the subchapter to accommodate the creation of the cultivated oyster mariculture program under the provisions of proposed new Chapter 58, Subchapter E, which is published elsewhere in this issue. Because the proposed new rules in Chapter 58 would allow the use of native oysters to propagate oysters for cultivated oyster mariculture, the provisions of Chapter 57, Subchapter F need to be changed, as the term “broodfish” as currently defined does not include oysters. Therefore, the proposed amendments would replace the term “broodfish” with the term “broodstock” throughout the subchapter. Similarly, archaic references to “these rules” would be replaced by references to “this subchapter.” Any proposed amendment not specifically addressed in this preamble is a nonsubstantive, housekeeping type change to modernize and clarify rule language to enhance readability, enforcement, administration, and compliance.

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

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

        The proposed amendment to §57.395, concerning Broodstock Collection; Notification, would add 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 cultivate oyster mariculture permits.

        The proposed amendment to §57.397, concerning Broodfish Permit; Revocation, would retitle the section “Prohibited Acts” and remove 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 proposed amendment would also generate categories of conduct that would constitute offenses under the subchapter rather than enumerate specific acts.

2. Fiscal Note.

        Lance Robinson, Deputy Director for Coastal Fisheries, has determined that for each of the first five years that the rules as proposed are in effect, there will be no fiscal implications to state or local governments as a result of administering or enforcing the rules.

3. Public Benefit/Cost Note.

        Mr. Robinson also has determined that for each of the first five years that the rules as proposed are in effect:

        (A) The public benefit anticipated as a result of enforcing or administering the proposed rules will be the ability of persons to collect oyster larvae and seed from the wild for the cultivation of oysters in captivity, which could relieve pressure on wild oyster populations.

        There will be no adverse economic effect on persons required to comply with the rules as proposed.

        (B) Under the provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses, micro-businesses, or rural communities. As required by Government Code, §2006.002(g), the Office of the Attorney General has prepared guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small and microbusinesses and rural communities. Those guidelines state that an agency need only consider a proposed rule’s direct adverse economic impacts” to determine if any further analysis is required. The department considers “direct economic impact “to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services.

        The department has determined that the proposed rule will not result in negative economic impacts to small businesses, micro-businesses, or rural communities. Therefore, neither the economic impact statement nor the regulatory flexibility analysis described in Government Code, Chapter 2006, is required.

        (C) The department has not drafted a local employment impact statement under the Administrative Procedures Act, §2001.022, as the agency has determined that the rules as proposed will not impact local economies.

        (D) The department has determined that Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rules.

        (E) The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rules.

        (F) In compliance with the requirements of Government Code, §2001.0221, the department has prepared the following Government Growth Impact Statement (GGIS).  The ruled as proposed, if adopted, will:

                 (1) neither create nor eliminate a government program;

                 (2) not result in an increase or decrease in the number of full-time equivalent employee needs;

                 (3) not result in a need for additional General Revenue funding;

                 (4) not affect the amount of any fee;

                 (5) not create a new regulation;

                 (6) expand an existing regulation (by making the provisions applicable to cultivated oyster mariculture);

                 (7) could increase but not decrease the number of individuals subject to regulation; and

                 (8) not positively or adversely affect the state’s economy.

4. Request for Public Comment.

        Comments on the proposal may be submitted to Lance Robinson at (512) 389-4649, e-mail: lance.robinson@tpwd.texas.gov. Comments also may be submitted via the department’s website at http://www.tpwd.texas.gov/business/feedback/public_comment/.

5. Statutory Authority.

        The amendments are proposed 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.

        The amendments affect Parks and Wildlife Code, Chapter 43, Subchapter P.

6. Rule Text.

                §57.391. Definitions. The following words and terms, when used in this subchapter[these rules], 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 [raised in private facilities].

                          (2) Aquaculturist—A person authorized by law[holding a valid license, issued under the Agriculture Code, Chapter 134,] to engage in aquaculture, fish farming or mariculture.

                          (3) (No change.)

                         (4) Broodstock[Broodfish]— An aquatic species[A fish] taken from the public waters of this state for the purpose of aquaculture or mariculture.

                          (5) Collection—Any boating, fishing, or aquatic product[fish] transportation activity involved in the take or attempted take of broodstock[broodfish].

                          (6) — (9) (No change.)

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

                         (11)[(10)] Progeny—Offspring of aquatic species[fish], including eggs, fry, [and] fingerlings, oyster larvae, seed, and spat.

                         (12)[(11)] 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)[(12)] 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.

        §57.392. General Rules.

                 (a) No person may collect or possess broodstock in public waters unless the person is in physical possession of:

                         (1) a valid broodstock permit issued by the department; and

                         (2) a valid recreational fishing license issued by the department.[While collecting, an aquaculturist or designated agent must be in possession of a valid recreational fishing license in all public waters and broodfish permit issued by the department.]

                 (b) No change.

        §57.394. Broodstock[Broodfish] Collection; Notification. The department’s nearest coastal or inland regional fisheries office and law enforcement office must be notified no less than 48 hours prior to commencement of broodstock[broodfish] collection.

        §57.395. Broodstock[Broodfish] Permits; Fees, Terms of Issuance.

        (a) The department shall not issue a permit under this subchapter to any person who has[The director may issue broodfish permits only to an aquaculturist who has not violated], during the one-year period preceding the date of application, been convicted for a violation of any provision of this subchapter, provisions of a permit issued under this subchapter, or [any provision of these rules or rules promulgated under]:

                          (1) the Parks and Wildlife Code, Chapter 66 or Chapter 75; or

                          (2) the Agriculture Code, Chapter 134.

                 (b) The permit shall prescribe:

                         (1) — (2) (No change.)

                         (3) number and total length of aquatic species[fish] collected; and

                         (4) (No change.)

                 (c) Broodstock[broodfish] permits will not be issued for the collection of black bass of the genus Micropterus or crappie of the genus Pomoxis.

                 (d) The fee for broodstock[broodfish] permit application shall be specified in Chapter 53 of this title (relating to Finance) and is not refundable if a permit is denied.

                 (e) To be considered for a broodstock[broodfish] permit, the applicant shall:

                          (1) complete and submit a broodstock[broodfish] permit application on a form provided by the department;

                         (2) (No change.)

                 (f) An applicant for a broodstock[broodfish] permit or a permittee shall allow inspection of the[their] aquaculture or mariculture facility for which the permit is sought or has been issued by authorized employees of the department during normal business hours.

                 (g) No person may return broodstock collected under this subchapter to public waters unless authorized to do so under[If a permittee discontinues aquaculture activities, broodfish collected under permit from the department may be returned to public waters of the state only by permit as required by the] Parks and Wildlife Code, §66.015.

        §57.396. Broodstock[broodfish] Permit; Expiration

                 (a) Broodstock[broodfish] permits [required by these rules] expire 60 days from the date of issuance.

                 (b) Broodstock[broodfish] permits are not transferable.

        §57.397. Prohibited Acts[Broodfish Permit; Revocation]. It is an offense for any person to:

[The department may revoke a ([broodfish])[broodstock] permit upon finding that a permittee or his agent:]

                 (1) violate a provision of this subchapter;[does not hold a valid aquaculture (fish farming) license issued by the Texas Department of Agriculture;]

                 (2) violate a provision of a permit issued under this subchapter[does not hold a valid recreational fishing license while collecting in all public waters of this state;]

                (3) fail to comply with the reporting requirements of this subchapter [has violated any provision of that broodfish permit;]

                [(4) fails to report, as required in §57.401 of this title (relating to Reports), the number and sizes of ([broodfish]) collected];

                (4)[(5)] provide[provides] false information in a [broodfish] report required under this subchapter; or

                (5)[(6)] fail[fails] to remit to the department [within 30 days of [broodfish collection] all restitution fees assessed by the department within 14 days of assessment[to the permittee by the deparment for the  for recovery of the value of broodfish collected].

        §57.398. Permit Denial. A broodstock[broodfish] permit may be denied if:

                (1) the applicant fails to satisfy all required criteria for permit issuance required by this subchapter[listed in §57.392(a) of this title (relating to General Rules) and §57.395(a)-(c) of this title (relating to ([broodfish])[Broodstock] Permits; Fees, Terms of Issuance)];

                (2) the department finds that the prospective collection activities[of broodfish] could be detrimental to existing [fish] populations of aquatic species at a specified collection site;

                (3) — (4) (No change.)

                (5) the[fish] species and numbers requested in the permit application are reasonably available from commercial aquaculturists licensed to operate aquaculture facilities within the state; or

                (6) a designated agent named in the broodstock[broodfish] permit application has violated any provision of this subchapter[any of these rules] in the five-year period preceding the date of permit application.

        §57.400. Reports. A person holding a permit issued under this subchapter shall[The broodfish permit holder must] submit a [broodfish] collection report to the department within seven days of any collection activity conducted under a permit issued under this subchapter [broodfish collection]. The report shall be [submitted] on a form provided by the department.

        §57.401. Restitution [for broodfish]. The department shall calculate the restitution value of aquatic species taken under a permit issued under this subchapter and assess the permit holder for that value. A permit holder shall pay the restitution value within 14 days of being notified by the department.[The Parks and Wildlife Code, §43.554, authorizes the department to set fees equal to the value of the broodfish to be taken under authority of that subchapter. The value of (fish)[aquatic species] taken from the public waters of Texas is prescribed by rule in §§69.20-69.30 of this title (relating to Fish and Wildlife Values). Upon receipt of a broodfish collection report, the department shall provide the permittee with a restitution request in an amount equal to the established value of any and all fish collected. Permittee shall remit to the department the full restitution value of all broodfish taken within 14 days of receipt of restitution request from the department.]

        This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.

            Issued in Austin, Texas, on

---

Commission Agenda Item No. 8
Exhibit D

CULTIVATED OYSTER MARICULTURE PERMIT FEES

PROPOSAL PREAMBLE

1. Introduction.

        The Texas Parks and Wildlife Department (the department) proposes an amendment to §53.15, concerning Miscellaneous Wildlife and Fisheries Licenses and Permits.

The proposed amendment would change 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.

2. Fiscal Note.

        Robin Riechers, Coastal Fisheries Division Director, has determined that for each of the first five years that the amendment is in effect, there will be no fiscal implications to state or local governments as a result of administering or enforcing the rules.

3. Public Benefit/Cost Note.

        Mr. Riechers also has determined that for each of the first five years that the rule as proposed are in effect:

        (A) The public benefit anticipated as a result of enforcing or administering the rule as proposed will be accurate regulatory references.

        There will be no adverse economic effects on persons required to comply with the rule as proposed.

        (B) Under the provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses, micro-businesses, and rural communities. As required by Government Code, §2006.002(g), the Office of the Attorney General has prepared guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small businesses. Those guidelines state that an agency need only consider a proposed rule’s “direct adverse economic impacts” to small businesses and micro-businesses to determine if any further analysis is required. For that purpose, the department considers “direct economic impact “to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services.

         The department has determined that no small businesses, microbusiness, or rural communities will be affected by the proposed new rule. Therefore, the department has not prepared the economic impact statement or regulatory flexibility analysis described in Government Code, Chapter 2006.

        (C) The department has not drafted a local employment impact statement under the Administrative Procedures Act, §2001.022, as the agency has determined that the rule as proposed will not impact local economies.

        (D) The department has determined that Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rule.

        (E) The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rule.

        (F) In compliance with the requirements of Government Code, §2001.0221, the department has prepared the following Government Growth Impact Statement (GGIS).  The rule as proposed, if adopted, will:

                 (1) not create a government program;

                 (2) not result in an increase or decrease in the number of full-time equivalent employee needs;

                 (3) not result in a need for additional General Revenue funding;

                 (4) not affect the amount of any fee;

                 (5) will not create a new regulation;

                 (6) not expand, limit, or repeal an existing regulation;

                 (7) neither increase nor decrease the number of individuals subject to regulation; and

                 (8) not positively or adversely affect the state’s economy, although the creation of the cultivated oyster mariculture program has the possibility of creating a new industry in the state.

4. Request for Public Comment.

        Comments on the proposal may be submitted to Lance Robinson at (512) 389-4649, e-mail: lance.robinson@tpwd.texas.gov. Comments also may be submitted via the department’s website at http://www.tpwd.texas.gov/business/feedback/public_comment/.

5. Statutory Authority.

        The amendment is proposed 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 proposed amendment affects Parks and Wildlife Code, Chapter 75.

6. Rule Text.

        §53.15. Miscellaneous Wildlife and Fisheries Licenses and Permits.

                 (a) – (g) (No change.)

                 (h) Miscellaneous fees:

                         (1) – (2) (No change.)

                         (3) broodstock[broodfish] permit application — $25;

                         (4) – (8) (No change.)

        This agency hereby certifies the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.

        Issued in Austin, Texas, on