Work Session

Wednesday, August 26, 2020
9:30 a.m.

Texas Parks and Wildlife Department
Live audio and by teleconferencing

S. Reed Morian, Commission Chair
Carter Smith, Executive Director

Approval of the Previous Minutes from the Commission Work Session held May 20, 2020

    Land and Water Plan

  1. Update on the Texas Parks and Wildlife Department’s Progress in Implementing the Texas Parks and Wildlife Department Land and Water Resources Conservation and Recreation Plan – Carter Smith
    • Internal Affairs Update
    • Staff Recognition
    • Sunset
    • Rule Review
      • Chapter 53 – Finance
      • Chapter 59 – Parks
      • Chapter 69 – Resource Protection
    • Legislative Appropriations Request Fiscal Year 2022–2023 and Five Percent Reduction
    • Battleship Texas
  2. Financial

  3. Financial Overview – Justin Halvorsen (Action Item No. 2)
    • Fiscal Year 2021 Operating and Capital Budget Approval
    • Budget and Investment Policy Resolutions
  4. Fiscal Year 2020 Internal Audit Update and Proposed Fiscal Year 2021 Internal Audit Plan – Brandy Meeks (Action Item No. 3)
  5. Rule Review – Request Permission to Publish Proposed Changes in the Texas Register – Colette Barron Bradsby
    • Chapter 51 – Executive
    • Chapter 52 – Stocking Policy
    • Chapter 55 – Law Enforcement
    • Chapter 60 – Maintenance Reviews
    • Chapter 61 – Design and Construction
  6. Natural Resources

  7. Wildlife Rehabilitation Permits Rules – Recommended Adoption of Proposed Changes – Meredith Longoria (Action Item No. 4)
  8. Managed Lands Deer Permits Fees – Recommended Temporary Suspension – Request Permission to Publish Proposed Changes in the Texas Register – Alan Cain WITHDRAWN
  9. Deer Breeder and Other Permitting Rule Amendments – Request Permission to Publish Proposed Changes in the Texas Register – Mitch Lockwood
  10. Statewide Oyster Fishery Proclamation – Temporary Closure of Oyster Restoration Areas in Galveston Bay and Aransas Bay – Request Permission to Publish Proposed Changes in the Texas Register – Emma Clarkson
  11. Proposed Amendments to the Exotic Harmful or Potentially Harmful Fish, Shellfish, and Aquatic Plants and Fee Rules – Request Permission to Publish Proposed Changes in the Texas Register – Monica McGarrity
  12. Law Enforcement

  13. Possession of Resident Licenses Rules – Recommended Adoption of Proposed Changes – Stormy King (Action Item No. 5)
  14. Civil Restitution Rules – Recommended Adoption of Proposed Changes – Jarret Barker (Action Item No. 6)
  15. Executive Office

  16. Temporary Commission Meeting Policy Regarding Meeting Procedures – Colette Barron Bradsby (Action Item No. 1)
  17. Land Conservation

  18. Grant of Easement – Lubbock County – Approximately .10 Acres at the Texas Parks and Wildlife Department Law Enforcement Office – Ted Hollingsworth (Action Item No. 7)
  19. Acquisition of Land – Bastrop County – Approximately 600 Acres at Bastrop State Park – Ted Hollingsworth (Work Session and Executive Session) (Action Item No. 8)
  20. Acquisition of Land – Bastrop County – Approximately 16 Acres at Bastrop State Park – Ted Hollingsworth (Work Session and Executive Session) (Action Item No. 9)
  21. Acquisition of Land – Jefferson County – Approximately 10 Acres at the J.D. Murphree Wildlife Management Area – Ted Hollingsworth (Work Session and Executive Session) (Action Item No. 10)
  22. Exchange of Land – Orange County – Approximately 2 Acres at the Old River Unit of the Lower Neches Wildlife Management Area – Ted Hollingsworth (Work Session and Executive Session) (Action Item No. 11)
  23. Grant of Pipeline Easement – Brazoria County – Approximately 6 Acres at the Justin Hurst Wildlife Management Area – Ted Hollingsworth (Work Session and Executive Session) (Action Item No. 12)
  24. Grant of Pipeline Easements – Brazoria County – Approximately 30 Acres at the Justin Hurst Wildlife Management Area – Request Permission to Begin the Public Notice and Input Process – Ted Hollingsworth (Work Session and Executive Session)
  25. Executive Session

  26. Bastrop Fires – Litigation Settlement – Colette Barron Bradsby, Rodney Franklin, Greg Creacy (Executive Session Only)
  27. Litigation Update – Colette Barron Bradsby (Executive Session Only)
    • Oysters
    • Chronic Wasting Disease
  28. Personnel Matters – Performance Evaluation of the Texas Parks and Wildlife Department Executive Director – Chairman S. Reed Morian (Executive Session Only)

Work Session Item No. 1
Presenter: Carter Smith

Work Session
Update on the Texas Parks and Wildlife Department’s Progress in Implementing the Texas Parks and Wildlife Department Land and Water Resources Conservation and Recreation Plan
August 26, 2020

I.      Executive Summary: Executive Director Carter Smith will briefly update the Texas Parks and Wildlife Commission (Commission) on the status of Texas Parks and Wildlife Department’s (TPWD) efforts to implement the Land and Water Resources Conservation and Recreation Plan (plan).

 

II.     Discussion: In 2001, the 77th Texas Legislature directed that TPWD develop a Land and Water Resources Conservation and Recreation Plan (Texas Parks and Wildlife Code section 11.104). In 2002, the Commission adopted the first plan. A revised plan was adopted by the Commission in January 2005. In November 2009, the Commission approved a new plan, effective January 1, 2010, that included broad input from stakeholders and the general public.  Minor revisions continue to be made to the plan. The 2015 version of the plan is available on the TPWD website. Executive Director Carter Smith will update the Commission on TPWD’s recent progress in achieving the plan’s goals, objectives, and deliverables.

The plan consists of the following four goals:

  1. Practice, Encourage, and Enable Science-Based Stewardship of Natural and Cultural Resources
  2. Increase Access to and Participation in the Outdoors
  3. Educate, Inform, and Engage Texas Citizens in Support of Conservation and Recreation
  4. Employ Efficient, Sustainable, and Sound Business Practices

Work Session Item No. 3
Presenter: Brandy Meeks

Work Session
Fiscal Year 2020 Internal Audit Update and Proposed Fiscal Year 2021 Internal Audit Plan
August 26, 2020

I.      Executive Summary:  The staff will present an update on the Texas Parks and Wildlife Department (TPWD) Fiscal Year (FY) 2020 Internal Audit Plan and ongoing or completed external audits, provide the methodology used to develop the proposed FY 2021 Internal Audit Plan, and recommend adoption of the motion to approve the proposed FY 2021 Internal Audit Plan.

II.     Discussion:

  1. The staff will provide an update on the TPWD FY 2020 Internal Audit Plan as well as a briefing of any external audits that have been recently completed and/or are ongoing.
  2. The staff will discuss the methodology used in the development of the proposed FY 2021 Internal Audit Plan. 
  3. The staff will recommend adoption of the motion to approve the proposed FY 2021 Internal Audit Plan.  

III.  Recommendation:  The staff recommends the Texas Parks and Wildlife Commission adopt the following motion:

“The Texas Parks and Wildlife Commission approves the TPWD FY 2021 Internal Audit Plan as listed in Exhibit A.”

Attachment – 1

  1. Exhibit A – Proposed TPWD FY 2021 Internal Audit Plan

Work Session Item No. 3
Exhibit A

 

Texas Parks and Wildlife Department

Fiscal Year 2021 Proposed Internal Audit Plan

 

Projects

Budgeted Hours

FY 2020 Carryover Projects

1400

FY 2021 New Projects

Audit of Selected IT Systems and Processes

  • Social Media Sites
  • Boater/Hunter Education System
  • Employee Off-Boarding Process Involving Division Systems

2000

Audit of Selected Grants

550

Audit of Selected Contracts

550

Fiscal Controls of Selected State Parks (14) and Law Enforcement Offices (4)

2200

Use of Force Compliance Audit

500

Quarterly Follow-up of Internal and External Audit Recommendations

600

Advisory Project

  • FLSA Classification Advisory

550

Special Projects and Investigations

450

Administrative

400

Total

9200

List of Alternative Projects

Additional State Park and Law Enforcement Office Audits

Procurement Card Compliance Audit

Purchasing Process Audit


Work Session Item No. 4
Presenter: Colette Barron Bradsby

Work Session
Rule Review
Request Permission to Publish Proposed Changes in the Texas Register
August 26, 2020

I.      Executive Summary: With this itemthe staff seeks permission to publish proposed changes to rules pursuant to the first stage of the quadrennial review of Texas Parks and Wildlife Department (TPWD) regulations required by the Texas Administrative Procedure Act. The proposed rulemaking would affect 30 Texas Administrative Code chapters 51 (Administration) and 55 (Law Enforcement).

II.     Discussion: Under Texas Government Code section 2001.039, a state agency is required to review each rule under its jurisdiction at least once every four years.  The review must include an assessment of whether the reasons for initially adopting a rule continue to exist. Notice of the proposed review must be published in the Texas Register for public comment. Following the review, rules must be re-adopted, adopted with changes, or repealed based upon the review.

The TPWD rule review process is broken into three groups of chapters within the Texas Administrative Code that contain TPWD’s regulations. The process for each chapter occurs over three Texas Parks and Wildlife Commission (Commission) meetings.  In the first meeting, the staff seeks permission to begin the rule review process and to publish notice of the rule review in the Texas Register. In the second meeting, the staff seeks permission to publish any proposed rule changes or repeals resulting from the rule review in the Texas Register for public comment.  In the third meeting, the staff seeks adoption of proposed rule changes and adoption of the completed rule review (i.e., re-adoption of the remaining unchanged rules).

At its May 20, 2020 meeting, the Commission authorized staff to publish a Notice of Intent to Conduct Rule Review for the first group of chapters under review: Chapter 51 – Executive; Chapter 52 – Stocking Policy; Chapter 55 – Law Enforcement; Chapter 60 – Maintenance Reviews; and Chapter 61 – Design and Construction. The notice was published in the July 17, 2020 issue of the Texas Register (45 TexReg 5015).  As a result of the rule review, staff determined that non-substantive changes to Chapters 51 and 55 were necessary. Proposed changes to Chapter 55 regarding Marine Safety Enforcement – Training and Certification Standards necessitate a proposed conforming change to §53.50, concerning Training and Certification Fees. Staff will provide a summary of any public comment received and apprise the Commission of any proposed changes in response to public comment.

Attachments – 7

  1. Exhibit A – Sick Leave Pool Rules
  2. Exhibit B – Advisory Committees Rules
  3. Exhibit C – Disease Detection and Response Rules
  4. Exhibit D – Marine Safety Officer Fee Rules
  5. Exhibit E – Boat Speed Limit and Buoy Standards Rules
  6. Exhibit F – Party Boats Rules
  7. Exhibit G – Training and Certification Standards

Work Session Item No. 4
Exhibit A

LEGISLATIVE RULE REVIEW

CHAPTER 51. EXECUTIVE

SUBCHAPTER E – SICK LEAVE POOL 

PROPOSAL PREAMBLE

1. Introduction.

        The Texas Parks and Wildlife Department proposes an amendment to §51.141, concerning Sick Leave Pool. The amendment would eliminate the requirement that donations to the sick leave pool be made in writing. The department now utilizes CAPPS, an automated system used by all state agencies, and employees can now donate to the sick leave pool online. The proposed amendment is a result of the department’s review of its regulations under the provisions of Government Code, §2001.039, which requires each state agency to review each of its regulations no less frequently than every four years and to re-adopt, adopt with changes, or repeal each rule as a result of the review.

2. Fiscal Note.

        Rebecca Gonzales, CAPPS Director in the Human Resources Division, has determined that for each of the first five years that the rule as proposed is in effect, there will be no fiscal implications to state or local governments as a result of administering or enforcing the rule.

3. Public Benefit/Cost Note.

        Ms. Gonzales 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 proposed rule will be regulations that accurately reflect agency processes with respect to the administration of the sick leave pool.

        There will be no adverse economic effect on persons required to comply with the rule.

        (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.

        (C) The department has determined that proposed rule would result in no direct economic effect on any small businesses, micro-businesses, or rural community. Therefore, neither the economic impact statement nor the regulatory flexibility analysis described in Government Code, Chapter 2006, is required.

        (D) 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.

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

        (F) 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.

        (G) 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 neither create nor eliminate a government program; not result in an increase or decrease in the number of full-time equivalent employee needs; not result in a need for additional General Revenue funding; not affect the amount of an existing fee; not create or expand an existing regulation; not increase or decrease the number of individuals subject to regulation; and not positively or adversely affect the state’s economy.

4. Request for Public Comment.

        Comments on the proposal may be submitted to Robert Macdonald at (512) 389-4775, e-mail: robert.macdonald@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 Government Code, §661.002, which requires the governing body of each state agency to adopt rules to prescribe procedures relating to the operation of the agency’s sick leave pool.

        The proposed amendment affects Government Code, Chapter 661.

6. Rule Text.

        §51.141. Sick Leave Pool. A sick leave pool is established to provide for the alleviation of hardship caused to an employee and the employee’s family if a catastrophic illness or injury forces the employee to exhaust all leave time earned by that employee and to lose compensation from the state.

                         (1) The director of human resources is designated as the pool administrator.

                         (2) The pool administrator, with the advice and consent of the executive director, will establish operating procedures consistent with the requirements of this section and relevant law governing operation of the pool.

                         (3) Donations to the pool are[must be made by written request containing a certification that the donation is] strictly voluntary.

        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

 

Work Session Item No. 4
Exhibit B

LEGISLATIVE RULE REVIEW

CHAPTER 51. EXECUTIVE

SUBCHAPTER O – ADVISORY COMMITTEES

PROPOSAL PREAMBLE

1. Introduction.

        The Texas Parks and Wildlife Department proposes the repeal of 51.642, concerning the San Jacinto Historical Advisory Board (SJHAB). House Bill 1422, enacted by the most recent session of the Texas Legislature, transferred the San Jacinto Battleground State Historic Site from the administrative jurisdiction of the department to the administrative jurisdiction of the Texas Historical Commission; therefore, the advisory board created by the department is no longer necessary in department rules. The proposed amendment is a result of the department’s review of its regulations under the provisions of Government Code, §2001.039, which requires each state agency to review each of its regulations no less frequently than every four years and to re-adopt, adopt with changes, or repeal each rule as a result of the review.

2. Fiscal Note.

        Kevin Good, Special Assistant to the Parks Division Director, has determined that for each of the first five years that the repeal as proposed is in effect, there will be no fiscal implications to state or local governments.

3. Public Benefit/Cost Note.

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

        (A) The public benefit anticipated as a result of enforcing or administering the proposed repeal will be the elimination of unnecessary regulations.

        There will be no adverse economic effect on persons required to comply with the repeal.

        (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.

        (C) The department has determined that proposed repeal would result in no direct economic effect on any small businesses, micro-businesses, or rural community. Therefore, neither the economic impact statement nor the regulatory flexibility analysis described in Government Code, Chapter 2006, is required.

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

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

        (F) 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 repeal.

        (G) In compliance with the requirements of Government Code, §2001.0221, the department has prepared the following Government Growth Impact Statement (GGIS).  The repeal as proposed, if adopted, will not create a government program, but will eliminate a government program; not result in an increase or decrease in the number of full-time equivalent employee needs; not result in a need for additional General Revenue funding; not affect the amount of an existing fee; not create or expand an existing regulation but will repeal an existing regulation; not increase or decrease the number of individuals subject to regulation; and not positively or adversely affect the state’s economy.

4. Request for Public Comment.

        Comments on the proposal may be submitted to Robert Macdonald at (512) 389-4775, e-mail: robert.macdonald@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 repeal is proposed under the authority of Government Code, §2110.005 and §2110.008.

        The proposed repeal affects Parks and Wildlife Code, §11.0162.

6. Rule Text.

        §51.642. San Jacinto Historical Advisory Board (SJHAB).

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


Work Session Item No. 4
Exhibit C

LEGISLATIVE RULE REVIEW

CHAPTER 51. EXECUTIVE

SUBCHAPTER D – EDUCATION 

PROPOSAL PREAMBLE

1. Introduction.

        The Texas Parks and Wildlife Department proposes an amendment to §51.80, concerning Mandatory Hunter Education Course and Instructors. The proposed amendment would alter the title of the section to read “Mandatory Hunter Education.” The proposed amendment would alter subsection (a) to reflect that a person may obtain a duplicate certificate of completion of hunter education requirements online through the department’s website; alter subsection (b) to allow a reproduction of a certificate of completion stored on a wireless communication device to be accepted as proof of completion of hunter education, and replaces a list of classes of persons exempt from hunter education requirements by statute with a reference to the statutory exemptions; and alter subsection (c) to change references to “deferred hunter education option” to refer instead to “hunter education deferral.” All the changes are nonsubstantive. The proposed amendment is a result of the department’s review of its regulations under the provisions of Government Code, §2001.039, which requires each state agency to review each of its regulations no less frequently than every four years and to re-adopt, adopt with changes, or repeal each rule as a result of the review.

2. Fiscal Note.

        Steve Hall, Hunter Education Manager, has determined that for each of the first five years that the rule as proposed is in effect, there will be no fiscal implications to state or local governments as a result of administering or enforcing the rule.

3. Public Benefit/Cost Note.

        Mr. Hall 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 proposed rule will be consistency with the Parks and Wildlife Code and agency publications.

        There will be no adverse economic effect on persons required to comply with the rule.

        (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.

        (C) The department has determined that proposed rule would result in no direct economic effect on any small businesses, micro-businesses, or rural community. Therefore, neither the economic impact statement nor the regulatory flexibility analysis described in Government Code, Chapter 2006, is required.

        (D) 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.

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

        (F) 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.

        (G) 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 neither create nor eliminate a government program; not result in an increase or decrease in the number of full-time equivalent employee needs; not result in a need for additional General Revenue funding; not affect the amount of an existing fee; not create, expand, or repeal an existing regulation; not increase or decrease the number of individuals subject to regulation; and not positively or adversely affect the state’s economy.

4. Request for Public Comment.

        Comments on the proposal may be submitted to Steve Hall Mitch Lockwood at (512) 389-8140, e-mail: steve.hall@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, §62.014(h), which requires the commission to make rules governing the hunter education program.

        The proposed amendment affects Parks and Wildlife Code, Chapter 62.

6. Rule Text.

        §51.80. Mandatory Hunter Education [Course and Instructors].

                 (a) Hunter Education Course.

                          (1) – (5) (No change.)

                         (6) The department shall issue a certificate to persons who successfully complete the course. A duplicate certificate may be obtained online at the department’s website at www.tpwd.texas.gov .[issued upon request to the department’s hunter education section or in person to a law enforcement field office or department-approved instruction provider.]

                         (7) (No change.)

                 (b) Hunter Education Requirements.

                         (1) – (5) (no change.)

                         (6) A person who is required to be certified must possess evidence of certification while hunting in Texas, which may include a photograph or electronic copy of valid certification stored on a wireless communication device.

                         (7) – (8) (No change.)

                         (9) A person who is exempt from the hunter education requirements under the provisions of Parks and Wildlife Code, §62.014(n) is exempt from the requirements of this section[A person is exempt from live-firing requirements of the Hunter Education Course delivered via classroom instruction or a combination of online instruction and skills exercise if the person is:]

                                  [(A) an honorably discharged veteran of the United States armed forces; or]

                                  [(B) on active duty as a member of the United States armed forces, the Texas Army National Guard, the Texas Air National Guard, or the Texas State Guard.]

                 (c) Other Non-certified Persons.

                         (1) (No change.)

                         (2) A person 17 years of age or older who is required to complete hunter education may hunt without certification if that person is:

                                  (A) in possession of a valid hunting license indicating that the person has selected the “Hunter Education Deferral”["Deferred Hunter Education Option"] offered by the department; and

                                  (B) (No change.)

                         (3) (No change.)

                         (4) A hunter education deferral[deferred hunter education option] expires at the end of the license year for which it was purchased.

                         (5) No person may select the hunter education deferral[deferred hunter education option] more than once.

                         (6) A person who has been convicted of or received deferred adjudication for not having completed a mandatory hunter education course is prohibited from obtaining a hunter education deferral[deferred hunter education option].

        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


Work Session Item No. 4
Exhibit D

LEGISLATIVE RULES REVIEW

CHAPTER 53. FINANCE

SUBCHAPTER A — FEES

MARINE SAFETY ENFORCEMENT OFFICER CERTIFICATION FEES

PROPOSAL PREAMBLE

1. Introduction.

        The Texas Parks and Wildlife Department proposes an amendment to §53.50, concerning Training and Certification Fees. The proposed amendment would establish a fee of $10 for online marine safety enforcement officer instruction by a department-approved third-party provider and allow for the provider to charge and retain a service fee in addition to the $10 fee forwarded to the department. In a proposed rulemaking published elsewhere in this issue, the department proposes to create an online option for marine safety officer instruction.

2. Fiscal Note.

        Cody Jones, Assistant Commander and Boating Law Administrator, has determined that for each of the first five years that the rule as proposed is in effect, there will be no fiscal implications to state or local government as a result of administering or enforcing the rule.

3. Public Benefit/Cost Note.

        Assistant Commander Jones 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 proposed rule will be a fee schedule that reflects an online option for the provision of marine safety enforcement officer training.

        There will be no adverse economic effect on persons required to comply with the rule.

        (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.

        (C) The department has determined that proposed rule would result in no direct economic effect on any small businesses, micro-businesses, or rural community. Therefore, neither the economic impact statement nor the regulatory flexibility analysis described in Government Code, Chapter 2006, is required.

        (D) 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.

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

        (F) 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.

        (G) 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 neither create nor eliminate a government program; not result in an increase or decrease in the number of full-time equivalent employee needs; not result in a need for additional General Revenue funding; not affect the amount of an existing fee; not create or expand an existing regulation; not increase or decrease the number of individuals subject to regulation; and not positively or adversely affect the state’s economy.

4. Request for Public Comment.

        Comments on the proposal may be submitted to Assistant Commander Cody Jones, (512) 389-4624, e-mail: cody.jones@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, §31.121, which requires the commission to promulgate rules to establish and collect a fee to recover the administrative costs associated with the certification of marine safety enforcement officers.

        The proposed amendment affects Parks and Wildlife Code, §31.121.

6. Rule Text.

        §53.50. Training and Certification Fees.

                 (a) Marine safety enforcement training and certification fees.

                         (1) Except as provided in paragraph (2) of this subsection, the[The] fee for certification as] a marine safety enforcement officer course is $25.

                         (2) The fee for a marine safety enforcement officer course delivered by a department-approved online provider shall be $10 per student. The provider shall forward the fee to the department within 30 days following course delivery.

                         (3) In addition to the examination or course fee described in paragraph (2) of this subsection, a course provider may charge and keep a service fee.

                          [(2) The fee for certification as a marine safety enforcement officer instructor is $25.]

                 (b) (No change.)

        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


Work Session Item No. 4
Exhibit E

LEGISLATIVE RULES REVIEW

CHAPTER 55. LAW ENFORCEMENT

SUBCHAPTER G. BOAT SPEED LIMIIT AND BUOY STANDARDS

PROPOSAL PREAMBLE

1. Introduction.

        The Texas Parks and Wildlife Department proposes amendments to §55.302 and §55.303, concerning Boat Speed Limit and Buoy Standards. The proposed amendments would modify language regarding certain areas of public water regulated by political subdivisions. Parks and Wildlife Code, §31.092, provides authority to various types of local governments to designate areas of public water within their jurisdictions as bathing, fishing, swimming, or otherwise restricted areas and to make rules and regulations relating to the operation and equipment of boats deemed necessary for the public safety. Current rules make specific reference to “Slow, No Wake” zones, which the department has learned has caused some local entities to interpret the regulatory authority at their disposal too narrowly. By removing references to “Slow, No Wake” designations, the department hopes to make clear that a governing board has greater latitude than the authority to establish “Slow, No Wake” zones.

        The proposed amendments are a result of the department’s review of its regulations under the provisions of Government Code, §2001.039, which requires each state agency to review each of its regulations no less frequently than every four years and to re-adopt, adopt with changes, or repeal each rule as a result of the review.

2. Fiscal Note.

        Cody Jones, Assistant Commander and Boating Law Administrator, has determined that for each of the first five years that the rules as proposed are in effect, there will be no fiscal implications to state or local government as a result of administering or enforcing the rules.

3. Public Benefit/Cost Note.

        Assistant Commander Jones 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 rule will be rules that are easier to interpret by certain local authorities.

        There will be no adverse economic effect on persons required to comply with the rule.

        (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.

        (C) The department has determined that proposed rules would result in no direct economic effect on any small businesses, micro-businesses, or rural community. Therefore, neither the economic impact statement nor the regulatory flexibility analysis described in Government Code, Chapter 2006, is required.

        (D) 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.

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

        (F) 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.

        (G) 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 neither create nor eliminate a government program; not result in an increase or decrease in the number of full-time equivalent employee needs; not result in a need for additional General Revenue funding; not affect the amount of an existing fee; not create or expand an existing regulation; not increase or decrease the number of individuals subject to regulation; and not positively or adversely affect the state’s economy.

4. Request for Public Comment.

        Comments on the proposal may be submitted to Assistant Commander Cody Jones, (512) 389-4624, e-mail: cody.jones@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 §31.142, which authorizes the department to provide for a standard buoy-marking program for the inland water of the state. The amendments are proposed in conformity with §31.002, which establishes the duty of the state to promote recreational water safety and the uniformity of laws relating to water safety; and §31.091, which reserves the basic authority to regulate boating to the state.

        The proposed amendment affects Parks and Wildlife Code, Chapter 31.

6. Rule Text.

        §55.302. Definitions. The following words and terms, when used in this undesignated head, shall have the following meanings, unless the context clearly indicates otherwise.

                 (1) Department — Texas Parks and Wildlife Department.

                 (2) Governing board — The governing board of an incorporated city or town, a commissioners court of a county, or the governing board of a political subdivision of the state created pursuant to the Texas Constitution, Article XVI, §59, as identified in the Parks and Wildlife Code, §31.092(c).

                 (3) Headway speed — Slow, idle speed, or speed only fast enough to maintain steerage on course.

                 (4) Regulated area — Any area on public water designated and posted as a regulated["Slow, No Wake"] area by a[the] governing board as provided in Parks and Wildlife Code, §31.092.

                 [(5) Slow, no wake — Headway speed without creating a swell or wake.]

        §55.303. General Rules. The following rules shall govern the speed limits of moving vessels on all public waters of this state.

                 (1) Governing boards may establish regulated areas under procedures and rules set out in Parks and Wildlife Code, §31.092, when these rules are determined to be necessary for public safety.

                         (A) [Regulated areas shall be designated and posted as "Slow, No Wake" areas.]

                         [(B)] Numerical speed limits, such as miles per hour, shall not be used on public waters.

                         (B)[(C)] Boat speeds outside of regulated areas shall be governed by the Parks and Wildlife Code, §31.095(a).

                         (C)[(D)] The governing board shall post and maintain regulated areas with buoys or pilings consistent with the system of markers authorized by this subchapter.

                 (2) Regulations governing water events and regattas administered by the United States Coast Guard are exempt from these rules to the extent of conflict.

        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


Work Session Item No. 4
Exhibit F

LEGISLATIVE RULES REVIEW

CHAPTER 55. LAW ENFORCEMENT

SUBCHAPTER H. PARTY BOATS

PROPOSAL PREAMBLE

1. Introduction.

        The Texas Parks and Wildlife Department proposes amendments to §55.401 and §55.402, concerning Party Boats. Under Parks and Wildlife Code, Chapter 31, Subchapter G, the department is required to license and regulate party boats, which are defined by statute as boats operated by the owner of the vessel or an employee of the owner and rented or leased by the owner for a group recreational event for more than six passengers. The department has encountered instances in which persons who own and operate party boats have erroneously interpreted the provisions in the rules that exempt livery vessels (a rented vessel for which operation and provisioning are the responsibility of the renter rather than the owner of the vessel) from the applicability of the rules to also exempt party boats from the statutory requirements of Parks and Wildlife Code, §31.040, which prescribes the licensing and titling requirements for livery vessels. To remedy the misunderstanding, the proposed amendment would remove the definition of “livery vessel” from §55.401, concerning Definitions, and amend §55.402, concerning Applicability and Exceptions, by adding a generic description in of the types of rental craft that are exempt from the provisions of the subchapter.

        The proposed amendments are a result of the department’s review of its regulations under the provisions of Government Code, §2001.039, which requires each state agency to review each of its regulations no less frequently than every four years and to re-adopt, adopt with changes, or repeal each rule as a result of the review.

2. Fiscal Note.

        Cody Jones, Assistant Commander and Boating Law Administrator, has determined that for each of the first five years that the rules as proposed are in effect, there will be no fiscal implications to state or local government as a result of administering or enforcing the rules.

3. Public Benefit/Cost Note.

        Assistant Commander Jones 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 rule will be clearer and more user friendly regulations regarding the licensing and titling of party boats.

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

        (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.

        (C) The department has determined that proposed rules would result in no direct economic effect on any small businesses, micro-businesses, or rural community. Therefore, neither the economic impact statement nor the regulatory flexibility analysis described in Government Code, Chapter 2006, is required.

        (D) 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.

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

        (F) 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.

        (G) 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 neither create nor eliminate a government program; not result in an increase or decrease in the number of full-time equivalent employee needs; not result in a need for additional General Revenue funding; not affect the amount of an existing fee; not create or expand an existing regulation; not increase or decrease the number of individuals subject to regulation; and not positively or adversely affect the state’s economy.

4. Request for Public Comment.

        Comments on the proposal may be submitted to Assistant Commander Cody Jones, (512) 389-4624, e-mail: cody.jones@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, §31.176, which requires the commission to promulgate rules regarding the requirements and procedures for the issuance and renewal of a party boat operator license to protect the public health and safety and §31.180, which requires the commission to adopt and enforce rules necessary to implement Parks and Wildlife Code, Chapter 31, Subchapter G.

        The proposed amendments affect Parks and Wildlife Code, Chapter 31.

6. Rule Text.

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

                 [(1)] Livery vessel — a vessel rented out for profit under a written contract by a vessel livery, as defined by Parks and Wildlife Code, §31.003(8), where all responsibility and liability for operating and provisioning the vessel is assumed by the party renting the vessel.]

                 (1)[(2)] Inland waters — all public waters of this state on the landward side of the coastal waters boundary as defined in §65.3(15) of this title (relating to Definitions).

                 (2)[(3)] Party boat — a vessel meeting the definition of "party boat" established in Parks and Wildlife Code, §31.171(2).

                 (3)[(4)] Passenger — a person carried on board a party boat, but does not include:

                         (A) - (C) (No change.)

        §55.402. Applicability and Exceptions.

                 (a) – (c) (No change.)

                 (d) This subchapter does not apply to:

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

                         (3) a vessel rented out for profit under a written contract by a vessel livery, as defined by Parks and Wildlife Code, §31.003(8), where all responsibility and liability for operating and provisioning the vessel is assumed by the party renting the vessel[a livery vessel]; or

                         (4) (No change.)

        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


Work Session Item No. 4
Exhibit G

LEGISLATIVE RULES REVIEW

CHAPTER 55. LAW ENFORCEMENT

SUBCHAPATER L

MARINE SAFETY ENFORCEMENT – TRAINING AND CERTIFICATION STANDARDS

PROPOSAL PREAMBLE

1. Introduction.

        The Texas Parks and Wildlife Department proposes the repeal of §55.805 and amendments to §§55.802, 55.803, 55.804, and 55.807, concerning Marine Safety Enforcement – Training and Certification Standards. The proposed repeal and amendments would eliminate requirements for the training of instructors from outside agencies, provide for online instruction for certification as a marine safety enforcement officer (MSEO), provide for the method of certifying completion of online instruction, and modernize terminology. The department has steadily increased the availability, where possible, of online options for learning applications (for instance, boater education and hunter education requirements can now be satisfied online). Law Enforcement Division staff have determined that the Marine Safety Enforcement Officer Course can be offered online to better serve the department’s sister agencies as well allow for more efficient resource allocation by the department. It is not uncommon for agency marine units to host MSEO course complements of only one or two officers, which consumes department resources and diverts personnel availability for other duties. Offering an online option could mitigate these situations. In another proposed rulemaking published elsewhere in this issue, the department proposes to establish a fee of $10 for online marine safety enforcement officer instruction.

        Additionally, demand for the department’s MSEO instructor course is non-existent, primarily because MSEO training is conducted almost exclusively by department law enforcement personnel. Additionally, the Texas Commission on Law Enforcement (TCOLE) has implemented administrative processes that make recordkeeping and reporting functions problematic with respect to outside instructors. Therefore, the department proposes to cease offering the MSEO instructor training course, which necessitates the proposed repeal of §55.805, concerning Marine Safety Enforcement Officer Instructor Course Standards.

        The proposed amendments would also update references to the Texas Commission on Law Enforcement Officer Standards, which is the former name of TCOLE.

        The proposed repeal and amendments are a result of the department’s review of its regulations under the provisions of Government Code, §2001.039, which requires each state agency to review each of its regulations no less frequently than every four years and to re-adopt, adopt with changes, or repeal each rule as a result of the review.

2. Fiscal Note.

        Cody Jones, Assistant Commander and Boating Law Administrator, has determined that for each of the first five years that the rules as proposed are in effect, there will be no fiscal implications to state or local government as a result of administering or enforcing the rules.

3. Public Benefit/Cost Note.

        Assistant Commander Jones 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 more efficient and less burdensome delivery of MSEO training and certification.

        There will be no adverse economic effect on persons required to comply with the rule.

        (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.

        (C) The department has determined that proposed rules would result in no direct economic effect on any small businesses, micro-businesses, or rural community. Therefore, neither the economic impact statement nor the regulatory flexibility analysis described in Government Code, Chapter 2006, is required.

        (D) 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.

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

        (F) 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.

        (G) 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 neither create nor eliminate a government program; not result in an increase or decrease in the number of full-time equivalent employee needs; not result in a need for additional General Revenue funding; not affect the amount of an existing fee; not create or expand an existing regulation but will repeal an existing regulation; not increase or decrease the number of individuals subject to regulation; and not positively or adversely affect the state’s economy.

4. Request for Public Comment.

        Comments on the proposal may be submitted to Assistant Commander Cody Jones, (512) 389-4624, e-mail: cody.jones@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, §31.121, which requires the commission by rule to establish standards for training and certifying marine safety enforcement officers and instructors.

        The proposed amendments affect Parks and Wildlife Code, Chapter 31.

6. Rule Text.

        §55.802. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, except where the context clearly indicates otherwise.

                 (1) Active duty peace officer — A peace officer holding a valid peace officer license from the Texas Commission on Law Enforcement (TCOLE)[Officer Standards and Education (TCLEOSE)] and a valid peace officer commission issued by an authorized governmental entity of the State of Texas.

                 (2) – (3) (No change.)

        §55.803. General Rules.

                 (a) – (b) (No change.)

                 (c) To instruct the marine safety enforcement officer training course, a person must:

                         (1) (No change.)

                         (2) hold a TCOLE[TCLEOSE] Instructor license; and

                         (3) (No change.)

                 (d) A person who is a graduate of the TPWD Game Warden Academy and who is also an active commissioned game warden is eligible for certification as a marine safety enforcement officer. A person who is a graduate of the TPWD Game Warden Academy, who is also an active commissioned game warden, and who holds a TCOLE[TCLEOSE] Instructors License is eligible for certification as a marine safety enforcement officer course instructor.

        §55.804. Marine Safety Enforcement Officer Course Standards.

                 (a) (No change.)

                 (b) The marine safety enforcement officer course is successfully completed when a peace officer has:

                         (1) attended the[a minimum of eight hours of] prescribed instruction by a department-certified marine safety enforcement officer instructor or department-approved online instruction provider[department certified marine safety enforcement officer instructor]; and

                         (2) (No change.)

                 (c) Upon completion of a course, the instructor or online provider shall submit appropriate course completion documentation to the department and TCOLE[a signed affidavit specifying for each student:]

                         [(1) the date(s) of instruction;]

                         [(2) the topics of instruction;]

                         [(3) the hours of instruction in each topic; and]

                         [(4) test score.]

        §55.807. Fees. All applications shall be accompanied by the fees specified in Chapter 53 of this title (relating to Finance). For all courses other than online courses,[All] payments shall be in the form of a check, money order, or warrant made payable to the department. For courses provided by an online provider payment shall be in a form prescribed by the provider. All fees remitted to the department are nonrefundable; however, an entity may substitute a qualified peace officer in place of a person named on an application.

        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

        The repeal is proposed under the authority of Parks and Wildlife Code, §31.121, which requires the commission by rule to establish standards for training and certifying marine safety enforcement officers and instructors.

        The proposed repeal affects Parks and Wildlife Code, Chapter 31.

        §55.805. Marine Safety Enforcement Officer Instructor Course Standards.

        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


WITHDRAWN Work Session Item No. 6
Presenter: Alan Cain

Work Session
Managed Lands Deer Permits Fees
Recommended Temporary Suspension Request Permission to Publish Proposed Changes in the Texas Register
August 26, 2020

I.      Executive Summary: With this itemthe staff seeks permission to publish proposed amendments to rules establishing fee amounts for participation in the Texas Parks and Wildlife Department (TPWD) Managed Lands Deer Program (MLDP). Staff have determined that in light of the COVID-19 pandemic, implementation of the MLDP fees adopted last year by the Texas Parks and Wildlife Commission (Commission) should be deferred until such time as the Commission determines that reinstatement is appropriate.

II.     Discussion: In January 2020, the Commission adopted fees for MLDP participation following the enactment of Senate Bill 733 by the Texas Legislature, which explicitly authorized the Commission to establish a fee for participation in the MLDP. With the COVID-19 pandemic and resulting economic impacts, TPWD staff believes it is necessary and helpful to defer the implementation of MLDP fees until such time as the Commission determines it is appropriate to reinstate them.

Attachment – 1

  1. Exhibit A – Proposed Rules

Work Session Item No. 6
Exhibit A

MANAGED LANDS DEER PERMIT FEE RULES

PROPOSAL PREAMBLE

 

1. Introduction.

        The Texas Parks and Wildlife Department proposes an amendment to §53.5, concerning Recreational Hunting Licenses, Stamps, and Tags. The proposed amendment would defer the effectiveness of the portion of the rules that establishes fees for participation in the Managed Lands Deer Program (MLDP) administered by the department until a time the fee amounts are reinstated by rule. The MLDP is an extremely popular program providing landowners and land managers with additional flexibility to manage deer populations, improve habitats, and provide greater hunting opportunities under the guidance of department biologists. Prior to this year, the program was administered at no charge to the regulated community. However, increasing demand presented significant challenges for the department, primarily with respect to the allocation of workforce resources to meaningfully engage with MLDP participants, meet technical guidance requests, and administer the MLDP. In response, the Texas Legislature enacted Senate Bill 733, which explicitly authorized the commission to establish a fee for participation in the MLDP, and the commission in January of this year adopted fees for MLDP participation. With the SARS-CoV-2 pandemic and resulting economic impacts, the department feels that it is necessary and helpful to defer the implantation of the MLDP fees until such time as the commission determines it is appropriate to reinstate them and the department is able to utilize fee revenue for its intended purpose of hiring new biologist to administer the program.

2. Fiscal Note.

        John Silovsky, Wildlife Division Acting Director, has determined that for each of the first five years that the rules as proposed are in effect, there will be no fiscal implications to state or local governments as a result of administering or enforcing the rule, as there is currently no fee imposed for MLDP participation.

3. Public Benefit/Cost Note.

        Mr. Silovsky 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 proposed rules will be economic relief for landowners and hunters affected by the SARS-CoV-2 pandemic.

        There will be no adverse economic effect on persons required to comply with the rule.

        (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.

        (C) The department has determined that because the proposed rule defers fees for voluntary participation in a resource management program administered by the department for the sole purpose of enhancing the enjoyment and use of public wildlife resources that by statute cannot be bought, sold, or harvested for profit in this state (i.e., that cannot be a commercial commodity), there is therefore no direct economic effect on any small businesses, micro-businesses, or rural community. Therefore, neither the economic impact statement nor the regulatory flexibility analysis described in Government Code, Chapter 2006, is required.

        (D) 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.

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

        (F) 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.

        (G) 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 neither create nor eliminate a government program; not result in an increase or decrease in the number of full-time equivalent employee needs, as the need for additional employees to administer the MLDP already exists; not result in a need for additional General Revenue funding; affect the amount of an existing fee (by implementing a temporary reduction to a fee of zero); not create or expand an existing regulation; not increase or decrease the number of individuals subject to regulation; and not positively or adversely affect the state’s economy.

4. Request for Public Comment.

        Comments on the proposal may be submitted to Alan Cain (white-tailed deer program) at (830) 480-4038, e-mail: alan.cain@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, Chapter 43, Subchapter Y, which authorizes the establishment of a fee for participation in the MLDP.

        The proposed amendment affects Parks and Wildlife Code, Chapter 43, Subchapter Y.

6. Rule Text.

        §53.5. Recreational Hunting Licenses, Stamps, and Tags.

                 (a) – (c) (No change.)

        (d) Managed Lands Deer Program (MLDP). The annual fees for participation in the Managed Lands Deer Program under §65.29 of this chapter are as follows and are nonrefundable.

                         (1) Properties enrolled in the Harvest Option (HO).

                                  (A) For each management unit within a property that is not part of an aggregate acreage — $30; and

                                  (B) For each aggregate acreage — $30.

                         (2) Properties enrolled in the Conservation Option (CO).

                                  (A) Enrollment by management unit.

                                          (i) For the first management unit within a property — $300;

                                          (ii) For each additional management unit within a property — $30; and

                                          (iii) For each management unit within a wildlife management association or cooperative — $30.

                                  (B) Enrollment by aggregate acreage — $300.

                         (3) The provisions of this subsection are suspended and the fee amounts herein are not applicable until reinstated by rule.

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

        Issued in Austin, Texas, on


Work Session Item No. 7
Presenter: Mitch Lockwood

Work Session
Deer Breeder and Other Permitting Rule Amendments
Request Permission to Publish Proposed Changes in the Texas Register
August 26, 2020

I.      Executive Summary: With this item, the Texas Parks and Wildlife Department (TPWD) staff seeks permission to publish a suite of proposed rules to harmonize regulations governing various permits concerning deer, including permits to trap, transport, and transplant game animals and game birds (known as “Triple T”); deer management permits (DMP); deer breeder’s permits; address lacunae in existing rules with respect to chronic wasting disease (CWD) management strategies; and standardize Triple T permit application and issuance standards across various species in the Texas Registerfor public comment. The proposed rulemakings would function collectively to:

II.     Discussion: Texas Parks and Wildlife Code authorizes the issuance of various permits for the possession and movement of game animals and game birds, including permits specifically for deer. Prior to 2015, TPWD’s regulatory apparatus for detecting CWD in deer held under various deer permits was piecemeal, scattered between various rules applicable to specific types of permits. With the discoveries of multiple CWD-positive deer in free-ranging and captive herds since 2015, TPWD moved to impose significantly more robust testing protocols and movement restrictions. Those rules are contained in Texas Parks and Wildlife Code chapter 65, subchapter B, and supersede any CWD testing rules that preceded them.

The proposed rules would reconcile all CWD provisions across various permit regulations. Additionally, the proposed rules would address unclear or uncovered areas of current deer breeder rules to provide greater assurances of CWD mitigation with respect to transfer activities, reporting and recordkeeping, escaped breeder deer, and other matters, as well as provide for standardization of Triple T application and issuance for all species of game animals and game birds. The proposed rules also modernize, update, and effect housekeeping-type changes.

Attachments – 4

  1. Exhibit A – Proposed Breeder Rules
  2. Exhibit B – Proposed Triple T Rules
  3. Exhibit C – Proposed DMP Rules
  4. Exhibit D – Proposed Disease Management Rules

Work Session Item No. 7
Exhibit A

DEER BREEDERS PERMIT RULES

PROPOSAL PREAMBLE

1. Introduction.

        The Texas Parks and Wildlife Department proposes the repeal of §65.604, amendments to §§65.601-65.603, 65.605, and 65.610-65.612, and new §65.604, concerning Deer Breeder Permits. In general, the amendments harmonize the subchapter with the contents of Chapter 65, Subchapter B, concerning Disease Detection and Response, but also make specific substantive and non-substantive changes as noted.

        Prior to 2015, the department’s regulatory apparatus for detecting chronic wasting disease (CWD) in deer breeding facilities was contained in this subchapter (Chapter 65, Subchapter T). The testing standards imposed by the rules were considered to be at best minimally efficacious for detecting CWD in captive deer populations and were intended to be the least burdensome regulatory footprint possible in light of the fact that up to that point in time, CWD had not been discovered in captive breeding facilities in Texas. However, with the discoveries of multiple CWD-positive deer in deer breeding facilities in 2015 and 2016, the department adopted rules that imposed more robust testing protocols and movement restrictions. Those rules are contained in Chapter 65, Subchapter B, and supersede the testing rules currently contained in Chapter 65, Subchapter T.

        CWD is a fatal neurodegenerative disorder that affects some cervid species, including white-tailed deer, mule deer, elk, red deer, sika, and their hybrids (susceptible species). It is classified as a TSE (transmissible spongiform encephalopathy), a family of diseases that includes scrapie (found in sheep), bovine spongiform encephalopathy (BSE, found in cattle), and variant Creutzfeldt-Jakob Disease (vCJD) in humans.

        Much remains unknown about CWD. The peculiarities of its transmission (how it is passed from animal to animal), infection rate (the frequency of occurrence through time or other comparative standard), incubation period (the time from exposure to clinical manifestation), and potential for transmission to other species are still being investigated. There is no scientific evidence to indicate that CWD is transmissible to humans. What is known is that CWD is invariably fatal to cervids, and is transmitted both directly (through deer-to-deer contact) and indirectly (through environmental contamination). Moreover, a high prevalence of the disease correlates with deer population declines, and human dimensions research suggests that hunters will avoid areas of high CWD prevalence. Additionally, the apparent persistence of CWD in contaminated environments represents a significant obstacle to eradication of CWD from either captive or free-ranging cervid populations.

        The proposed repeal of §65.604, concerning Disease Monitoring, is necessary because the section is now superfluous and unnecessary, since disease monitoring and testing requirements for CWD, including those for deer breeders and persons who obtain or receive deer from deer breeders, are contained in Chapter 65, Subchapter B.

        The proposed amendment to §65.601, concerning Definitions, would eliminate the definitions for “accredited test facility,” “certified wildlife biologist,” “release,” and “sale.” The definition for “accredited test facility” is no longer necessary since disease monitoring and testing requirements for CWD are contained in Chapter 65, Subchapter B. The proposed amendment to §65.603(b) would create a “certified pen inspector” function to replace that previously performed under the rubric of “certified wildlife biologist,” which the department has determined is not an appropriate descriptor of the activities being performed. The definitions for “release” and “sale” are being eliminated because the department is using the term “transfer” to encompass all situations in which a transfer permit is required, which includes purposes of release and/or sale. For the same reasons, the proposed amendment would alter the definition of “transfer permit” to simply state that a transfer permit is a permit authorizing the movement of breeder deer to any person or registered facility authorized to possess or receive breeder deer. Finally, the proposed amendment would replace the term “unique number” with "unique identifier" to be consistent with terminology used in Parks and Wildlife Code, §43.3561, and clarify that a unique identifier is issued by the department to the deer breeder, who will ultimately assign the number to a breeder deer born in that permit holder’s facility.

        The proposed amendment also would alter the definition of “facility” to specify that enclosures within any given facility must be contiguous. The department, in consultation with Texas Animal Health Commission (TAHC), is managing CWD-positive deer breeding facilities that contain multiple disjunct sets of enclosures that in some cases are separated by miles of pasture land or private and county roads. Deer are loaded into trailers and moved between the sets of enclosures without activation of transfer permits. Consequently, neither the department nor TAHC have accurate records documenting which set of enclosures any particular deer are actually in, or any documentation of movement history between enclosures, which challenges both agencies’ disease-management strategies. Requiring a separate facility identification number for each distinct set of contiguous pens and requiring a transfer permit to be activated to transfer deer between distinct facilities is a prudent disease management and prevention action that is expected to introduce minimal, if any, burden on the permittee.

        The proposed amendment to §65.602, concerning Permit Requirement and Permit Privileges; General Provisions, would clarify subsection (a) to provide that a person may possess live deer in this state by means other than a permit (e.g., an authorization to temporarily retain breeder in an enclosure to allow them to acclimate to a release site), and remove a generic reference to the subchapter in favor of a reference to a specific provision of the Parks and Wildlife Code that enumerates the specific statutory privileges enjoyed by the holder of a deer breeders permit. As mentioned previously in this preamble, the department is replacing terms such as “sale” and “release” with the term “transfer” because most if not all instances in which a breeder deer is moved require the activation of a transfer permit; those changes are made throughout the proposed rulemaking. Similarly, the proposed amendment would eliminate current paragraphs (b)(4), (6) and (7) because the activities addressed in those provisions are also effected by activation of a transfer permit. ­­­­The proposed amendment also would add new subsection (d) to stipulate that registered breeding facilities may possess only white-tailed deer or only mule deer. The department will not issue a permit allowing both species of deer to be kept in a single facility, which is necessary to eliminate the possibility of accidental or intentional comingling of species and hybridizing. Similarly, the proposed amendment would add new subsection (e), which would stipulate that other than deer that are not required to be identified and reported to the department under the provisions of Parks and Wildlife Code, Chapter 43, Subchapter L, no deer, livestock, exotic livestock, or similar animals may be present in, confined in, or have access to a deer breeding facility other than the deer listed on the reconciled herd inventory for the facility reported to the department, which is necessary to reduce disease risks that could be introduced by other animals and not limited to CWD-susceptible species.

        The proposed amendment to §65.603, concerning Application and Permit Issuance, would clarify application requirements with respect to the infrastructure of a prospective deer breeding facility, require an inspection of the facility to performed by a pen inspector authorized by the department, and establish the minimum requirements for a person to become an authorized pen inspector.

        The proposed amendments would clarify several areas regarding the content of applications for deer breeder permits. The current rules require an applicant to “submit a completed application to the department.” The application requires, among other things, a plat of the prospective facility (to include individual enclosures, the dimension and size of each enclosure; the approximate location of feeding and watering devices within each enclosure, and the approximate location of man-made and/or natural shelters).  In addition, the application requires a letter of endorsement from a certified wildlife biologist attesting that the prospective facility meets the department’s regulatory requirements for facility standards; deer are not currently within the facility; that deer eventually introduced to the facility will have adequate access to food, water, and shade and/or shelter; the facility identified in the application is fully constructed and functional; and any additional information the biologist deems pertinent. The department has determined that the contents of the application relating to facility infrastructure should be specified by rule in order to avoid misunderstandings, confusion, or the implication that the information required in an application is voluntary rather than mandatory or that the accuracy of the information is open to interpretation by the applicant. To that end, the proposed amendment to §65.603 would require an application to include a diagram of the facility that clearly defines each distinct enclosure within the facility and explicitly require the letter of endorsement from an authorized pen inspector to affirm that the infrastructure of a prospective deer breeding facility is adequate for the humane treatment of breeder deer (including adequate access to food, continuous supplies of water and ample cover or shelter), has been secured to prevent ingress to and egress from the facility by animals similar to deer or livestock, and that no animals similar to deer or livestock are present within the facility.

        The proposed amendment to §65.603 also would alter current rules regarding facility inspections. Under current rule, prospective deer breeding facilities must be inspected by a certified wildlife biologist as a condition of potential licensure. The department has determined that although it is necessary to require facility inspections and to require them to be performed by persons with the educational and experiential background necessary to do so effectively, it is not necessary to require accreditation as a certified wildlife biologist. Therefore, proposed new subsection (b) would stipulate that an authorized pen inspector be a person not employed by the department who has been awarded a bachelor’s degree or higher in wildlife science, wildlife management, or related discipline; has at least three years of post-graduate experience associated with breeder deer within the five-year period preceding any pen inspection activity; has no record within the previous five years of non-compliance with department regulations regarding breeder deer herd inventories; and has not been finally convicted of or been assessed an administrative penalty for a legal violation that would prevent the person from being an agent or surrogate for a deer breeder under applicable department rules in Chapter 65, Subchapter U. The department reasons that it is appropriate to prohibit persons who exhibit a demonstrable disregard for laws and regulations governing wildlife from acting as an authorized pen inspector for the purposes of the subchapter.

        The proposed amendment to §65.603 also would stipulate that additions to a facility must be approved by the department. Current rules require permittees to submit an accurate diagram of the facility indicating all changes to the facility; however, it is not explicitly stated that the diagram must be updated each time a change is made to the facility. The proposed amendment would remedy that.

        Finally, the proposed amendment to §65.603 would amend a reference to a subsection within the section which is necessary because the designation of the referenced subsection would change as a result of the proposed amendments.

        Proposed new §65.604, concerning Disease Monitoring, would provide a reference to Chapter 65, Subchapter B, Division 2, concerning Chronic Wasting Disease – Movement of Deer, which contains applicable provisions governing disease management with respect to breeder deer.

        The proposed amendment to §65.605, concerning Holding Facility Standards and Care of Deer, would amend subsection (a) to clarify that facility fencing requirements apply to all facilities authorized to hold breeder deer including nursing and medical facilities.

        The proposed amendment to §65.606 would also add new subsection (b) to require permittees to ensure that deer in a breeding facility have access to adequate food, water, and cover. Although the pen inspection required by §65.603, concerning Permit Application and Issuance, requires attestation that adequate food, a continuous supply of water, and ample cover or shelter is provided at any given breeding facility, the department believes it is important to stipulate that those things are not simply conditions for permit issuance, but expectations of day-to-day operations.  The current rule does not explicitly address food, water, or shelter requirements, as the department has thus far considered that since breeder deer are at least anecdotally very valuable to deer breeders, it should be axiomatic that deer breeders would protect the deer they are permitted to possess; however, the department has become aware of situations in which permittees have failed to provide what the department considers to be basic standards of animal care, and in at least one instance a deer breeder has been cited for animal cruelty. Therefore, the department believes it is necessary to provide for such standards by rule.

        The proposed amendment also would alter current subsection (b) to specify notification requirements for deer breeders in the event that a deer escapes from a breeding facility. Under current rule, a permittee must notify the department immediately upon discovering the escape of a deer from the breeding facility, which initiates a ten-day window for recapture efforts and provides for an additional five-day period provided the permittee proves to the department’s satisfaction that reasonable efforts have been made to recapture the deer. The department has encountered situations in which it is difficult to ascertain the nature and progress of a permittee’s efforts to recapture escaped deer, which is problematic from a disease management perspective. Therefore, the proposed amendment would require the notification to include a detailed description of the permittee’s intended efforts to recapture the deer, including the methods, dates, and times of attempted recapture efforts and a daily notification of the execution of those recapture efforts. The proposed amendment also would eliminate the additional five-day period for recapture and allow recapture and reintroduction to a deer breeding facility after 10 days only if the department approves that action for disease management purposes. The department believes that 10 days is sufficient time for bona fide recapture attempts to take place, and that reintroduction of escaped deer after that time is warranted only if the department has determined it is necessary, based on the CWD status of the facility in question and that of the surrounding landscape to which the deer has escaped.

        The proposed amendment to §65.605 also would add new subsection (d) to address the failure to recapture breeder deer that escape from a deer breeding facility that is prohibited by law from receiving or transferring breeder deer under the provisions of Chapter 65, Subchapter B, Division 2 at the time of or subsequent to the escape. The proposed new subsection would address such instances by requiring the implementation of a disease-testing plan for the property where the breeding facility is located and any contiguous tract of land under common ownership. The disease-testing plan would specify CWD testing and reporting requirements for deer harvested on the affected properties and additional CWD testing requirements in the deer breeding facility. The intent of the proposed new subsection is to address concerns regarding deer that have escaped from breeding facilities known to be of epidemiological concern with respect to CWD.

        The proposed amendment to §65.610, concerning Transfer of Deer, would amend subsection (a) to clarify that transfer permit requirements apply to breeder deer in a trailer or vehicle. The current provision requires activation of a transfer permit when deer are moved into or out of a facility, but does not specifically indicate an exact point in time at which the transfer permit activation must occur. The department has determined that it is reasonable to assume that transfer activities have started when deer are loaded into a trailer or vehicle; thus, the proposed amendment would require a transfer permit to have been activated prior to deer being possessed in a trailer or vehicle.

        The proposed amendment also would alter subsection (b) to comport its contents with the disease management provisions of Chapter 65, Subchapter B, which, as noted previously in this preamble, governs the movement of breeder deer pursuant to disease management regulations. The proposed amendment would eliminate paragraphs (1) – (4) and (6) and add clarifying language to the remaining paragraphs to comport terminology.

        The proposed amendment also would add new subsection (c) to stipulate that white-tailed deer and mule deer may not be transferred to any facility located in a county for which there is no open season for that species. The department believes that it is biologically irresponsible to allow breeder deer to be transferred to destinations outside of the natural or historic range of the species, especially in light of the nearly 3,000 reported escapes of breeder deer and the 9,687 breeder deer that department inspections have determined cannot be accounted for by permittees. Desert mule deer have evolved in and are adapted to a specific historical range in West Texas; to allow desert mule deer to be transferred to facilities outside their historic native range would introduce a host of potential known and unknown problems (transmission of diseases, parasites, etc.) that the department believes can be avoided by prohibiting movement outside of historic range.

        The proposed amendment would eliminate the contents of current subsection (c) because they are superfluous in light of other provisions governing transfer permits (addressed earlier in this preamble) and replace them with the contents of current §65.610(d)(1), which provides that the department will not authorize the release of deer if the release would detrimentally affect existing populations or systems.

        The proposed amendment would alter current subsection (d) by removing paragraph (1) as discussed previously in this preamble.

        The proposed amendment would alter the provisions of current subsection (e) to clarify that the deer specifically identified on the transfer permit are the only deer that may be moved under the transfer permit during the 48-hour time period authorized by the permit, and that a transport manifest identifying the specific deer in possession while in transport must be physically possessed by the person in possession of the deer during transport if multiple trips, vehicles, or destinations are identified on a transfer permit. The intent of the proposed amendment is to remove any ambiguity as to what a transfer permit applies to or what a transfer permit specifically authorizes. The department has encountered situations in which permittees have activated a transfer permit, but the transfer permit does not accurately identify the deer in the transport vehicle, or even the number of deer in the transport vehicle. Sometimes there are situations when a deer breeder  makes multiple trips or uses multiple transport vehicles to complete a transfer, and it is important that each shipment of deer is accompanied by a transport manifest clearly identifying the specific deer on the transport vehicle. The department believes that it is reasonable to expect that in any given instance of transport, the deer in a trailer or means of transportation are in fact the deer identified on the transfer permit as the deer being transported.

        Under the provisions of current subsection (e)(3), a transfer permit may be activated by phone or online. The proposed amendment would require all permit activations to be done online, but would also provide for activation by phone or email in the event the department’s online system is unavailable. The department believes that the ubiquity of smart phones, tablets, laptops, and other devices makes phone notification unnecessary except in special circumstances.

        The proposed amendment would nonsubstantively alter current subsection (e)(4) to clarify that the current requirement that an application for a transfer permit indicate the source and destination of the deer being moved means and includes the facility identification numbers assigned by the department to the source and destination facilities. Similarly, the proposed amendment would alter current subsection (e)(5) to replace “all activities” with “movement of deer” for purposes of improved precision.

        The proposed amendment to current subsection (e)(6) would replace “veterinarian” with “veterinarian’s medical facility for emergency medical treatment” to more precisely describe the destination and conditions under which a breeder deer may be transported without activation of a transfer permit, but would amend the provision to require that if deer moved without a transfer permit under the provision are removed from the means of transportation and temporarily housed in a location that may house other susceptible species at any point between departure from the source facility and return to the source facility, a transfer permit must be activated prior to the return of the deer to the source facility. The proposed new provision is necessary for epidemiological contact tracing in the event that the deer or the source facility become part of an epidemiological investigation at a later date.

        The proposed amendment to §65.611, concerning Prohibited Acts, would consist of several actions. The proposed amendment would alter the provisions of subsection (b) to state that it is an offense to place breeder deer anywhere without ensuring that the herd inventory is reconciled, which is necessary for purposes of disease control.

        The proposed amendment also would add new subsection (d) to prohibit the possession of a breeder deer in a nursing facility later than 120 days following the deer’s birth. The current rules allow the transport of fawns to nursing facilities in order to provide nourishment until the fawns are self-sufficient. It is a generally accepted fact of deer biology that fawns have been weaned within the first 120 days of life. The department believes that fawns should be returned to their respective breeding facilities when they are capable of feeding on their own.

        The proposed amendment also would add new subsection (e) to prohibit the commingling and/or interbreeding of white-tailed deer and mule deer. White-tailed deer and mule deer have different breeding strategies, breeding chronologies, habitat preferences, and predator evasion behaviors, all of which are important in sustaining populations.  Hybrids in captivity have shown escape behaviors that are chaotic, confused, and would lead to lower survival probabilities. It is documented in research facilities that hybrids have a higher mortality rate than purebred white-tailed deer or mule deer, and research indicates that hybrid fawns have low survival rates. The department has determined that allowing the production of hybrids and/or their release is unwise.

        The proposed amendment also add new subsection (f) to prohibit the intrastate transfer of semen or embryos to or from breeding facilities that are prohibited from receiving or transferring deer under the provisions of Chapter 65, Subchapter B, Division 2 and the transfer of semen or embryos from outside of Texas if the source is not enrolled and advancing in the cervid herd certification program operated by United States Department of Agriculture. The department is concerned that semen and embryos are a potential vector for CWD, and that allowing their transfer between or importation to Texas facilities that are prohibited from transferring deer under current rules, especially from out-of-state sources of unknown epidemiological provenance, is not prudent in the absence of conclusive scientific evidence that such concerns may be dismissed. The department considers that laws and rules governing the possession of regulated species are applicable to parts of regulated species; for instance, possession of parts of deer at any place other than a final destination without also possessing documentation of lawful possession is an offense. Therefore, the department believes it is prudent to prohibit the importation of semen or embryos from facilities not required to participate in an acceptable CWD surveillance program until such time as their potential for disease transmission is definitively known.

        The proposed amendment would also add new subsection (i) to specifically emphasize that an authorized pen inspector commits an offense by submitting the checklist or letter of endorsement required by the proposed rules if that person has not personally conducted an onsite inspection of the facility in question. The department notes that the offense would be a Class C Misdemeanor, which would give the department a less serious option to pursue for minor infractions, as opposed to a felony or Class B Misdemeanor prosecution for falsification of a government record that is also possible based on the same conduct.

        The proposed amendment would also add new subsection (j) to clarify that it is an offense for any person to violate or fail to comply with the provisions of a disease-testing plan issued under the provisions of §65.605(d).

        The proposed amendment would add new subsection (k) to prohibit the cloning of white-tailed or mule deer except as specifically authorized under a department-issued permit. The department strongly believes that the unknown and unforeseeable biological consequences resulting from the cloning of native wildlife make it imperative to prohibit any such activity except for one possibility, which is credible scientific research predicated on a compelling scientific need.

        The proposed amendment would add new subsection (l) to prohibit the possession of deer, livestock, exotic livestock, or similar animals in a deer breeding facility, or allow such animals to access a deer breeding facility.

        Finally, the proposed amendment to §65.612, concerning Disposition of Deer, would make nonsubstantive change to comport the terminology in the section with changes made elsewhere in the proposed rules to standardize terminology with respect to transfer permits.

 

2. Fiscal Note.

        Mitch Lockwood, Big Game Program Director, has determined that for each of the first five years that the rules as proposed are in effect, there will be no fiscal implications to state or local governments as a result of administering or enforcing the rules, as the rules will be administered and enforced by existing staff as part of their regular duties.

3. Public Benefit/Cost Note.

        Mr. Lockwood 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 in addition to better organized and more user-friendly regulations, a reduction of the probability of CWD and other diseases being spread to or from facilities and an increase in the probability of detecting CWD if it does exist, thus ensuring the public of continued enjoyment of the resource and also ensuring the continued beneficial economic impacts of hunting in Texas. Additionally, the protection of free-ranging deer herds will have the simultaneous collateral benefit of protecting captive herds, and maintaining the economic viability of deer breeding operations.

        There will be adverse economic effect on persons required to comply with the rule. Those effects will be identical to the effects on small and microbusinesses described later in this preamble.

        (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.

        There are currently 957 persons holding a deer breeder’s permit. The department does not have access to financial records of permittees; therefore, to ensure that this analysis does not inadvertently exclude any small business or microbusiness, the department assumes that all deer breeders are small or microbusinesses.

        The proposed rules would require a facility to consist of contiguous pens or enclosures, which means that permittees who currently operate facilities containing non-contiguous pens or enclosures would either have to consolidate their deer in a single facility or obtain a deer breeder’s permit for each disjunct pen or enclosure. Department records indicate that 107 permittees have facilities with pens that are not contiguous (82 of those facilities have two pens that are not contiguous, 21 facilities have three pens that are not contiguous, three facilities have four pens that are not contiguous, and one facility has five pens that are not contiguous). Therefore, the department estimates the cost of compliance to range from $0 (if all breeder deer are moved to a single facility) to multiples of $200 (depending on the number of disjunct pens for which a permit is sought) to a maximum of $1,000 (for the permittee with five disjunct pens, if a new permit is sought for each of the five pens). The department considered several alternatives to the proposed rule. The department considered status quo, which was rejected because when epidemiological investigations are necessary it is imperative to know exactly which deer have been precisely where in order to conduct contact tracing for deer that may subsequently have come into contact with suspect deer or deer environs. The department considered implementing a system allowing satellite pens with special notification and reporting requirements, which was rejected for reasons of avoiding unnecessary introduction of complexity to administration, enforcement, compliance, and disease tracing.

        Under current rule, a deer breeder may activate multiple transfer permits for a cargo of deer that are being transported to different destinations. The proposed rules would stipulate that a transfer permit authorizes the transfer of specifically identified breeder deer from the source to a destination facility in a single trip. Therefore, there would be an adverse economic cost to those permittees who engage in the practice. The department has no means by which to estimate the frequency with which the practice occurs or the number of deer breeders who employ it; however, anecdotal evidence suggests that it is not common. The department nonetheless estimates that adverse economic impacts to affected deer breeders will consist of labor and transportation costs of multiple trips, which is entirely dependent on the unique circumstances involved, but could range from hundreds of dollars to perhaps several thousand dollars, depending on the distance and the type and number of vehicles involved (which can vary greatly). The department considered several alternatives to the proposed rule. The department considered allowing status quo to continue, which was rejected because the purpose of the rule is to facilitate epidemiological investigations (if necessary) by creating a mechanism whereby the department knows with certainty exactly which deer are transported to or from any facility at any given point in time. The department also considered a waypoint system that would require documentation and notification at each of multiple stops, which was rejected because the department determined such a system would be comparatively difficult to comply with, administer, and enforce.

        The proposed new rules would require that deer held under a breeder permit not be commingled with other deer, exotic species, or livestock. The department has no method to determine how many permittees would be affected by the proposed provisions but has determined that there could be some direct costs associated with segregating currently commingled menageries. The department has determined that such direct costs would be minimal, consisting of the labor and time necessary to remove all individuals other than the breeder deer from spaces that are inhabited by and accessible to only the breeder deer. The department considered several alternatives to the rules as proposed. The department considered following the status quo, which was rejected because the purpose of the proposed rule is to segregate breeder deer from all other animals for purposes of managing and mitigating possible CWD and other disease transmission. Another alternative that was considered was to require some sort of periodic inspection and/or testing of other animals kept in the same facility with white-tailed deer or mule deer, which was rejected because of concerns with statutory authority with respect to species other than indigenous wildlife and administrative complexity. Another alternative that was considered was to prohibit comingling of any species susceptible to CWD with breeder deer in a deer breeding facility, which was rejected because of concerns related to diseases other than CWD that could be transmitted to deer, including but not limited to bovine tuberculosis and epizootic hemorrhagic disease.

        The proposed amendment would prohibit the cloning of deer under a deer breeder’s permit. The department is anecdotally aware of one permittee who is currently attempting to clone deer. The department is not aware of specific business models involving cloned deer, but speculates that they could range from creating viable individuals for sale to propagating embryos to be sold or used for purposes of implantation in surrogate mothers. Therefore, the department estimates that the proposed prohibition on cloning will not result in a direct adverse economic impact on the permittee involved because there are numerous other ways to propagate deer that are less costly than cloning. The department considered several alternatives to the proposed rule. The department considered remaining silent on the matter from the point of regulatory restraints. This alternative was rejected because the purpose of the rule is to prevent unintended negative consequences to populations of naturally occurring deer that could result from allowing the use of a technology that is not fully understood and cannot be definitively said to be free of negative outcomes. The department also considered allowing cloning under a set of special regulations specifically designed to carefully analyze and assess progress towards assurances of non-negative impacts to native populations of deer, which was rejected for reasons of administrative complexity and impacts to the regulated community. The department reasons that independent bona fide research activities will ultimately provide greater knowledge upon which to base future regulatory decisions.

        The proposed rules would prohibit the transfer of semen and embryos except between movement qualified (MQ) in-state breeding facilities and receipt by facilities from out-of-state sources that are enrolled and advancing under the United States Department of Agriculture (USDA) CWD Herd Certification Program. Under current rule, facilities designated Not Movement Qualified (NMQ) are prohibited from receiving or transferring deer for reasons of epidemiological connections to suspect facilities or inability to provide a reconciled herd inventory (which is unconditionally required by the current rules in order for a breeding facility to be designated MQ). The department considers parts of deer (i.e., antlers, head, backstrap) to be deer for regulatory purposes; therefore, the proposed rule will not result in adverse fiscal impacts to any deer breeder legally authorized to receive or transfer deer.

        The proposed rules will not affect rural communities.

        (D) 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.

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

        (F) 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.

        (G) 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 neither create nor eliminate a government program; not result in an increase or decrease in the number of full-time equivalent employee needs; not result in a need for additional General Revenue funding; not affect the amount of an existing fee (but could in some circumstances result in additional fees for disjunct pens if the deer breeder chooses to have them registered as facilities); expand existing regulations (by altering rules governing the use of transfer permits; requiring harvest management plans for properties under common ownership that adjoin NMQ facilities from which deer have escaped and not been recaptured; restricting the transfer of semen and embryos; prohibiting the commingling of breeder deer with other animals; and prohibiting the cloning of breeder deer) but not limit an existing regulation; not increase or decrease the number of individuals subject to regulation; and not positively or adversely affect the state’s economy.

4. Request for Public Comment.

        Comments on the proposal may be submitted to Mitch Lockwood at (830) 792-9677, e-mail: mitch.lockwood@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 and new section are proposed under the authority of Parks and Wildlife Code, Chapter 43, Subchapter L, which authorizes the commission to make regulations governing the possession, transfer, purchase, and sale of breeder deer held under the authority of the subchapter; and §61.021, which provides that no person may possess a game animal at any time or in any place except as permitted under a proclamation of the commission.

        The proposed new rules affect Parks and Wildlife Code, Chapter 43, Subchapter E, and Chapter 61.

6. Rule Text.

        §65.601. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. All other words and terms shall have the meanings assigned by Parks and Wildlife Code.

                 [(1) Accredited test facility — A laboratory approved by the United States Department of Agriculture to test white-tailed deer or mule deer for Chronic Wasting Disease.]

                 (1)[(2)] Authorized agent — An individual designated by the permittee to conduct activities on behalf of the permittee. For the purposes of this subchapter, the terms ’deer breeder’ and ’permittee’ include authorized agents.

                 [(3) Certified Wildlife Biologist — A person not employed by the department who has been certified as a wildlife biologist by The Wildlife Society, or who:]

                         [(A) has been awarded a bachelor’s degree or higher in wildlife science, wildlife management, or a related educational field; and]

                         [(B) has not less than five years of post-graduate experience in research or wildlife management associated with white-tailed deer or mule deer within the past 10 years.]

                 (2)[(4)] Facility — One or more contiguous enclosures, in the aggregate and including additions, that are the site of deer breeding operations under a single deer breeder’s permit.

                 (3)[(5)]Movement qualified — A status, determined by the department, under which the transfer[removal] of deer to orfrom a facility is authorized.

                 [(6) Release — The intentional release of a live deer from a permitted facility, or from a vehicle or trailer at a location other than a facility.]

                 [(7) Sale — The transfer of possession or the delivery and release of deer for consideration and includes a barter and an even exchange.]

                 (4)[(8)]Serial Number — A permanent four-digit number assigned to a deer breeder by the department. A serial number shall be preceded by the prefix "TX".

                 (5)[(9)]Transfer permit — A permit authorizing the movement of breeder deer to or from a facility[a breeder facility, a nursing facility, or a deer management permit facility other than to an accredited veterinarian for medical purposes.]

                 (6)[(10)Unique identifier — As defined by Parks and Wildlife Code, §43.3561(a)(5).[Unique number — An alphanumeric number of not more than four characters assigned by the department to the breeding facility in which the breeder deer was born and unique to that breeder deer.]

        §65.602. Permit Requirement and Permit Privileges; General Provisions.

                 (a) Except as provided in this chapter, no person may possess a live deer in this state unless that person possesses:

                         (1) a valid permit issued by the department under the provisions of Parks and Wildlife Code, Chapter 43, Subchapters C, E, L, or R; or

                         (2)  specific written authorization under the provisions of this subchapter.

                 (b) In accordance with Parks and Wildlife Code, §43.357[Except as otherwise provided by this subchapter], a person who possesses a valid deer breeder’s permit may:

                         (1) engage in the business of breeding legally possessed breeder deer within the facility for which the permit was issued;

                         (2) [purchase or otherwise lawfully] take possession of breeder deer transferred from another facility in compliance with the provisions of this chapter[lawfully possessed by another deer breeder];

                         (3) [sell or] transfer breeder deer that are in the legal possession of the permittee; and

                         [(4) release breeder deer from a permitted facility into the wild as provided in this subchapter;]

                         (4)[(5)except as provided by this subchapter, recapture lawfully possessed breeder deer that have been marked in accordance with Parks and Wildlife Code, §43.3561 that have escaped from a permitted facility.[;]

                         [(6) temporarily relocate and hold breeder deer in accordance with the applicable provisions of §65.610 of this title (relating to Transfer of Deer); and]

                         [(7) temporarily relocate and recapture buck breeder deer under the provisions of Subchapter D of this chapter (relating to Deer Management Permit).]

                 (c) Unless specifically provided otherwise in this subchapter or the conditions of permit, all permit applications, permit renewals, notifications, reporting, and recordkeeping required by this subchapter shall be submitted electronically via the department’s Internet-based deer breeder application.

                 (d) A deer breeding facility shall contain either white-tailed deer or mule deer, as authorized by the permit.

                 (e) Except for deer that are not required to be identified and reported to the department under the provisions of Parks and Wildlife Code, Chapter 43, Subchapter L, no deer, livestock, exotic livestock, or similar animals may be present in, confined in, or have access to a deer breeding facility other than the deer listed on the reconciled herd inventory for the facility reported to the department.

        §65.603. Application and Permit Issuance.

                 (a) An applicant for an initial deer breeder’s permit shall submit the following to the department:

                         (1) a completed application on a form supplied by the department;

                         (2) a letter of endorsement by a person authorized by the department to conduct pen inspections stating that the person[certified wildlife biologist which states that the biologist] has personally conducted an on-site inspection at[of] the facility identified in the application and affirming[affirms] that[:]

                                  [(A)] the facility identified in the application:

                                          (A)[(i)is constructed as depicted on the diagram submitted with the application;

                                          (B) contains infrastructure appropriate for the humane treatment of deer, including for the provision of adequate food, a continuous supply of water, and ample cover or shelter; [physically exists; and]

                                          (C)[(ii)] is adequate for the lawful conduct of activities governed by this subchapter; [and]

                                          (D)[(B)has been secured in such a fashion to prevent ingress to and egress from the facility by any deer, livestock, exotic livestock, or similar animals; and 

                                          (E) no deer, livestock, exotic livestock, or similar animals are present or confined within the facility[no deer are present within the facility];

                         (3) a diagram of the physical layout of the facility that clearly defines each distinct enclosure within the facility boundaries;

                         (4) the application processing fee specified in Chapter 53, Subchapter A, of this title (relating to Fees); and

                         (5) any additional information that the department determines is necessary to process the application.

                 (b) For the purposes of this subchapter, an authorized pen inspector is a person not employed by the department who:

                         (1) has been awarded a bachelor’s degree or higher in wildlife science, wildlife management, or a related educational field;

                         (2) has not less than three years of post-graduate experience associated with breeder deer within the five years preceding;

                         (3) has not, according to department records, failed to maintain a reconciled herd inventory, as defined by §65.90(27) of this title (relating to Definitions), within the five years immediately preceding any inspection conducted for purposes of satisfying the requirements of this subchapter; and

                         (4) has not been finally convicted of or been assessed an administrative penalty for violation of an offense listed in §65.703 of this title (relating to Proscription of Certain Agents and Surrogates).

                 (c)[(b)] A deer breeder’s permit may be issued when:

                         (1) the application and associated materials have been approved by the department; and

                         (2) the department has received the fee as specified in Chapter 53, Subchapter A, of this title (relating to Fees).

                 (d)[(c)] An initial deer breeder’s permit shall be a one-year permit valid from the date of issuance until the immediately following July 1. The department may issue a three or five-year deer breeder’s permit if the permit holder has met the requirements of subsection (d) of this section for the three-year period immediately prior to application for a three or five-year permit renewal. A three-year or five-year deer breeder permit renewal is valid for the three-year or five-year period specified on the permit.

                 (e)[(d)] Except as provided in subsection (h) of this section, a deer breeder’s one, three, or five-year permit may be renewed prior to the date of expiration, provided that the applicant:

                         (1) is in substantial compliance with the provisions of this subchapter and Parks and Wildlife Code, Chapter 43, Subchapters L and X;

                         (2) has submitted a timely application for renewal or is, as determined by the department, making satisfactory progress towards resolution of deficiencies that prevent timely renewal;

                         (3) has filed the annual report in a timely fashion, as required by §65.608 of this title (relating to Annual Reports and Records);

                         (4) has paid the permit renewal fee as specified in Chapter 53, Subchapter A, of this title (relating to Fees); and

                         (5) for a permit renewal of three-years or five-years, meets the criteria for a three-year and five-year permit specified in Parks and Wildlife Code, §43.352.

                 (f)[(e)] An authorized agent may be added to or deleted from a permit at any time by notifying the department. No person added to a permit under this subsection shall participate in any activity governed by a permit unless that person is listed on an amended permit issued by the department.

                 (g)[(f)] Except as provided by this subchapter for [release,] transfer[, or transport] of breeder deer, a deer breeder’s permit authorizes the holding of breeder deer only within the physical layout of a facility described by the diagram required by subsection (a)(3) of this section. If a permittee wishes to enlarge, reduce, reconfigure, or otherwise alter [the exterior dimensions of] a facility[,] the permittee shall submit to the department an accurate diagram of the altered facility, indicating all changes to the existing facility[, to the department]. It is unlawful to introduce, cause the introduction of, or hold breeder deer anywhere other than within the dimensions of the facility as indicated by an approved[the] diagram on file with the department.

                 (h)[(g)] In addition to the provisions of Parks and Wildlife Code, Chapter 12, Subchapter G, the department may refuse permit issuance or renewal as provided in Subchapter U of this chapter (relating to Authority to Refuse to Issue or Renew Permit).

                 (i)[(h)] The department shall conduct all reviews of department decisions to deny issuance or renewal of a permit under this subchapter in compliance with the provisions of Parks and Wildlife Code, Chapter 12, Subchapter G and Subchapter U of this chapter.

        §65.604. Disease Monitoring. The provisions of Subchapter B, Division 2, of this chapter apply to the possession and movement of deer pursuant to a permit issued under this subchapter. 

        §65.605. Holding Facility Standards and Care of Deer.

                 (a) The entire perimeter fence of a facility containing breeder deer, including nursing and medical facilities, shall be no less than seven feet in height, and shall be constructed of department-approved net mesh, chain link or welded wire that will retain breeder deer. An indoor facility is acceptable if it meets the standards described in this section and provides permanent access to an outdoor environment that is sufficient for keeping the breeder deer in captivity.

                 (b) A permittee shall ensure that deer have access to adequate food, a continuous supply of water, and ample cover or shelter.

                 (c)[(b)] Immediately upon discovering the escape of breeder deer from a facility, a permittee shall notify the department. The notification shall include a detailed description of the permittee’s intended actions to recapture the escaped deer, including the methods that will be employed to recapture the deer and the dates and times that recapture will be attempted.  The permit holder shall notify the department daily of the efforts to capture the escaped deer until the escaped deer are captured.[The permittee shall have ten days from the date of such report to capture only those breeder deer that are marked in accordance with Parks and Wildlife Code, §43.3561. All recaptured breeder deer must be returned to the facility from which the breeder deer escaped.] If after ten days the permittee is unable to capture escaped breeder deer that have been reported in accordance with this subsection, the deer may not be recaptured or held in a deer breeding facility unless specifically authorized in writing by the department for purposes of disease management[the department may grant an additional five-day period for capture efforts to continue, contingent upon the permittee proving to the department’s satisfaction that reasonable efforts were made to effect the capture during the first ten-day period].

        (d) If a permit holder is unable to recapture escaped breeder deer reported as provided under subsection (c) of this section and the breeding facility is designated as NMQ at the time of or subsequent to the time of escape under the provisions of Subchapter B, Division 2, of this chapter, the property on which the deer breeding facility is located and any tract of land contiguous to the property under common ownership shall be subject to a department disease-testing plan requiring mandatory CWD testing and reporting. 

        §65.610. Transfer of Deer.

                 (a) General [requirement]. No person may possess breeder deer in a trailer or vehicle, or remove breeder deer from or accept breeder deer into a permitted facility, unless a valid transfer permit has been activated as provided in this section.

                 (b) Transfer by deer breeder. In accordance with the provisions of Subchapter B, Division 2, of this chapter (concerning Chronic Wasting Disease – Movement of Deer), the[The] holder of a valid deer breeder’s permit may transfer legally possessed breeder deer to:

                         [(1) to or from another deer breeder as a result of sale, purchase or other arrangement] 

                         [(2) to or from another deer breeder on a temporary basis for breeding purposes;]

                         [(3)] to or from another person on a temporary basis for nursing purposes; ]

                         [(4)] to an individual who purchases or otherwise lawfully obtains the deer for purposes of release but does not possess a deer breeder’s permit;]

                         (1)[(5)a facility registered with the department for purposes of veterinary treatment; or[to an individual for the purpose of obtaining medical attention, provided the breeder deer do not leave this state;]

                         [(6) to a facility authorized under Subchapter D of this chapter (relating to Deer Management Permit) to receive buck deer on a temporary basis; or]

                         (2)[(7)an[to the holder of a valid] educational display or zoological facility permitted[permit issued] by the department. A transfer under this paragraph is final; breeder deer transferred[donated] to a permitted[the holder of an] educational display or zoological facility[permit] may not be returned to any breeder facility.

                 (c) White-tailed deer and mule deer may not be transferred to a facility located in a county for which there is no open season for that species.

                 (d)[(c)The department will not authorize the transfer of breeder deer to a release site if the department has determined that the transfer will detrimentally affect existing populations or systems.[Transfer by person other than deer breeder. An individual who does not possess a deer breeder’s permit may possess deer under a transfer permit if the individual is transporting breeder deer within the state and the breeder deer were legally obtained from a deer breeder]

                 (e)[(d)] Release.

                         [(1) The department may authorize the release of breeder deer for stocking purposes if the department determines that the release of breeder deer will not detrimentally affect existing populations or systems.]

                         (1)[(2)] Breeder deer lawfully transferred to a registered release site may be held in temporary captivity for any period of time from March 1 through the eleventh day immediately preceding an open deer season to acclimate the breeder deer to habitat conditions at the release site; however, such temporary captivity must be specifically authorized in writing by the department. Not later than 11:59 p.m. on the eleventh day immediately preceding an open deer season, all deer being held in temporary captivity under the provisions of this paragraph shall be released. Release shall consist of the removal of at least 20 feet of the components of a pen that serve to maintain deer in a state of detention within the pen; however, no opening shall be less than 10 feet in width. Such components shall be removed for no fewer than 30 consecutive days.

                         (2)[(A)] An enclosure used to temporarily detain deer under this paragraph shall be physically separate from any deer breeding facility and the deer being temporarily held shall not be commingled with breeder deer. Deer held in temporary captivity shall not be returned to any deer breeding facility.

                         (3)[(B)] The department will not authorize the detention of deer under this paragraph during an open hunting season.

                         (4)[(C)] Deer in temporary captivity under the provisions of this paragraph shall not be hunted while in temporary captivity.

                 (g)[(e)] Transfer permit.

                         (1) A transfer permit is valid for 48 consecutive hours from the time of activation.

                         (2) A transfer permit authorizes the transfer of the breeder deer specifically identified on the transfer permit to one and only one registered facility[receiver].

                         (3) A transport manifest is a written document that specifically identifies the deer in a means of transport at any given time between departure from the source facility identified on the transfer permit and any destination facility identified on the transfer permit. A person in possession of deer during transport under a transfer permit must physically possess a transport manifest under any of the following conditions: 

                                  (A) multiple vehicles are employed to transport deer to only one destination identified in a single transfer permit; 

                                  (B)  a single vehicle is employed for multiple trips to a single destination identified in a single transport permit; or 

                                  (C) a single instance of transport involves stops at multiple destinations. 

                 (4)[(3)] A transfer permit is activated only by:

                                  [(A) notifying the Law Enforcement Communications Center in Austin by phone; or]

                                  (A)[(B)] utilizing the department’s online[Internet-based deer breeder] application; or

                                  (B) notifying the Law Enforcement Communications Center in Austin by phone or email in the event the department’s online application is offline or otherwise unavailable to the general public.

                                  (C) It is an offense for any person to transport a deer under a transfer permit unless the person also possesses a confirmation number issued by the department indicating receipt of the notification for that instance of transport.

                         (5)[(4)] No person may possess a live breeder deer at any place other than within a permitted facility unless that person also possesses on their person a department-issued transfer permit legibly indicating, at a minimum:

                                  (A) the species, sex, and unique number of each breeder deer in possession;

                                  (B) the facility identification numbers for the source and destination facilities[, or, if applicable, the specific release location for each breeder deer in possession]; and

                                  (C) the date and time that the permit was activated.

                         (6)[(5)] Not later than 48 hours following the completion of the movement of breeder deer[all activities] under a transfer permit, the permit shall be completed and submitted to the department.

                         (7)[(6)] A deer breeder may transport breeder deer without a transfer permit from a permitted facility to a licensed veterinarian’s medical facility for emergency medical treatment, [veterinarian]provided:

                                  (A) the transport occurs by the most feasible direct route;

                                  (B) the breeder deer are not removed from the means of transportation at any point from the time of departure from the source facility to the time of return to the source facility, including at the place of treatment; and

                                  (C) the breeder deer do not leave this state.

                                  (D) If a breeder deer is removed from the means of transportation to the medical facility and is temporarily housed in a location that may house other susceptible species, then a transfer permit reflecting that transport must be activated and completed and an additional transfer permit must be activated prior to the deer returning to the deer breeding facility.

                 (h)[(f)] Marking of vehicles and trailers. No person may possess, transport, or cause the transportation of breeder deer in a trailer or vehicle under the provisions of this subchapter unless the trailer or vehicle exhibits an applicable inscription, as specified in this subsection, on the rear surface of the trailer or vehicle. The inscription shall read from left to right and shall be plainly visible at all times while possessing or transporting breeder deer upon a public roadway. The inscription shall be attached to or painted on the trailer or vehicle in block, capital letters, each of which shall be of no less than six inches in height and three inches in width, in a color that contrasts with the color of the trailer or vehicle. If the person is not a deer breeder, the inscription shall be "TXD". If the person is a deer breeder, the inscription shall be the deer breeder serial number issued to the person.

        §65.611. Prohibited Acts.

                 (a) Deer obtained from the wild under the authority of a permit or letter of authority issued pursuant to Parks and Wildlife Code, Chapter 43, Subchapter C, E, or R shall not be commingled with deer held in a permitted deer breeding facility.

                 (b) A person commits an offense if that person places or holds breeder deer in captivity at any place or in any facility for which the herd inventory reported to the department does not account for those breeder deer, except for fawn breeder deer that are not yet required to be reported to the department[on any property other than property for which a deer breeder’s permit, or a permit authorized under other provisions of this title or Parks and Wildlife Code, is issued, except that a permittee may transport and temporarily hold breeder deer at another location for breeding, nursing, or veterinary purposes as provided in this subchapter].

                 (c) No breeder deer shall be held in a trailer or other vehicle of any type except for the purpose of immediate transportation from one location to another.

                 (d) No person may possess a breeder deer in a nursing facility beyond 120 days following the deer’s birth.

                 (e) No person may hold more than one cervid species at any time in a deer breeding facility, or cause or allow the interbreeding by any means of white-tailed deer and mule deer.

                 (f) It is unlawful for any person to transfer, or cause or allow the transfer of semen or embryo of a white-tailed or mule deer to or from a deer breeding facility, unless:

                         (1) both the source facility and the destination facility are designated MQ under the provisions of Subchapter B, Division 2, of this chapter; or

                         (2) the destination facility is a facility designated MQ under the provisions of Subchapter B, Division 2, of this chapter and the source of the semen or embryo is enrolled and advancing in the cervid herd certification program operated by United States Department of Agriculture. 

                 (f)[(d)] Possession of a deer breeder’s permit is not a defense to prosecution under any statute prohibiting abuse of animals.

                 (g)[(e)] No deer breeder shall exceed the number of breeder deer allowable for the permitted facility, as specified by the department on the deer breeder’s permit.

                 (h)[(f)] This subsection does not apply to breeder deer lawfully obtained prior to June 21, 2005. Except as provided in this subsection, no person may:

                         (1) possess a deer acquired from an out-of-state source; or

                         (2) import or attempt to import deer from an out-of-state source.

                 (i) It is an offense for any person the department has authorized as a pen inspector to submit the checklist or letter of endorsement required by §65.603(a)(2) of this title (relating to Application and Permit Issuance) if the person has not personally conducted an onsite inspection of the facility.

                 (j) It is an offense for any person to violate or fail to comply with the provisions a disease-testing plan created under the provisions of §65.605(d) of this subsection.

                 (k) No person may clone or authorize or participate in the cloning of a white-tailed deer or mule deer unless specifically authorized to do so by a permit issued by the department under the provisions of Parks and Wildlife Code, Chapter 43, Subchapter C. For the purposes of this subsection, cloning is the creation or attempted creation of a white-tailed or mule deer from a single progenitor cell.

                 (l) No person may possess deer, livestock, exotic livestock, or similar animals in a deer breeding facility, or allow deer, livestock, exotic livestock, or similar animals to access a deer breeding facility other than:

                         (1) the deer identified in the reconciled herd inventory for the facility; and

                         (2)  offspring that are not required to be identified and reported to the department under the provisions of Parks and Wildlife Code, Chapter 43, Subchapter L.

        §65.612. Disposition of Deer.

                 (a) Upon termination, suspension, or revocation of a deer breeder’s permit, the permittee shall dispose of all breeder deer covered by the permit.

                 (b) Breeder deer may be disposed of by:

                         (1) transfer[sale or donation] to another deer breeder;

                         (2) transfer[sale or donation] to a holder of a zoological permit issued by the department;

                         (3) transfer[sale or donation] to the holder of an educational display permit issued by the department; or

                         (4) transfer to registered release sites[release to the wild] as specifically authorized by the department.

                 (c) Breeder deer still in possession 30 days following termination, revocation, or suspension of a permit shall be disposed of at the discretion of the department.

                 (d) Disposition of all breeder deer shall be at the expense of the permittee.

        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


Work Session Item No. 7
Exhibit B

PERMITS TO TRAP, TRANSPORT, AND TRANSPLANT 

GAME ANIMALS AND GAME BIRDS

PROPOSAL PREAMBLE

1. Introduction.

        The Texas Parks and Wildlife Department proposes amendments to §§65.101-65.103, 65.107, 65.109, 65.111, and 65.115, concerning Permits to Trap, Transport, and Transplant Game Animals and Game Birds (popularly known as “Triple T” permits). In general, the amendments harmonize the subchapter with the contents of Chapter 65, Subchapter B, concerning Disease Detection and Response, but also make specific substantive and non-substantive changes as noted.

        Prior to 2015, the department’s regulatory apparatus for detecting chronic wasting disease (CWD) in deer subject to a Triple T permit was contained in this subchapter). The testing standards imposed by the rules were considered to be at best minimally efficacious for detecting CWD in captive deer populations and were intended to be the least burdensome regulatory footprint possible in light of the fact that up to that point in time, CWD had not been discovered in Texas. However, with the discoveries of multiple CWD-positive deer in deer breeding facilities in 2015 and 2016, the department imposed more robust testing protocols and movement restrictions. Those rules are contained in Chapter 65, Subchapter B, and supersede the testing rules contained in Chapter 65, Subchapter C.

        CWD is a fatal neurodegenerative disorder that affects some cervid species, including white-tailed deer, mule deer, elk, red deer, sika, and their hybrids (susceptible species). It is classified as a TSE (transmissible spongiform encephalopathy), a family of diseases that includes scrapie (found in sheep), bovine spongiform encephalopathy (BSE, found in cattle), and variant Creutzfeldt-Jakob Disease (vCJD) in humans.

        Much remains unknown about CWD. The peculiarities of its transmission (how it is passed from animal to animal), infection rate (the frequency of occurrence through time or other comparative standard), incubation period (the time from exposure to clinical manifestation), and potential for transmission to other species are still being investigated. There is no scientific evidence to indicate that CWD is transmissible to humans. What is known is that CWD is invariably fatal to cervids, and is transmitted both directly (through deer-to-deer contact) and indirectly (through environmental contamination). Moreover, a high prevalence of the disease correlates with deer population declines, and human dimensions research suggests that hunters will avoid areas of high CWD prevalence. Additionally, the apparent persistence of CWD in contaminated environments represents a significant obstacle to eradication of CWD from either farmed or free-ranging cervid populations.

        Additionally, the proposed amendments would function to standardize the department’s approach to the process of administering the Triple T program. The specificity in the current rules apply primarily to deer, which are by far the most commonly transplanted game species in the state. However, the department occasionally is approached with requests concerning other species of game animals and game birds, and believes a standardized set of rules for processing all Triple T requests is appropriate, although, obviously, there will be exceptions as required for specific species because of biological parameters.

        The proposed amendment to §65.101, concerning Definitions, would create a definition for “aggregate acreage” in order to define that term for purposes of allowing multiple landowners to collaborate in stocking and restoration efforts, either as the source of or destination for game animals and game birds. The term would be defined as “contiguous tracts of land, to, from, and between which game animals and game birds have complete and unrestricted access, combined by multiple landowners to create an area of land for the purpose of trapping or releasing game animals or game birds under a permit issued under this subchapter.” It is biologically important to require all tracts to be contiguous and for released animals to be capable of moving at will for purposes of maximum biological benefit to the resource and the landscape. For purposes of clarity, the proposed amendment also would define “landowner” as “any person who has an ownership interest in a tract of land, and includes a person authorized by the landowner to act on behalf of the landowner as the landowner’s agent or manager of an aggregate acreage,” which is necessary to clearly delineate what is meant by that term as it is used for purposes of aggregate acreage permit issuance.          The proposed amendment also would create a definition for “georeferenced map.” A crucial component of the department’s CWD management effort is the monitoring of free-ranging deer that are trapped and translocated and captive-bred deer that are introduced to, transferred among, and released from captive herds under department-issued permits. Such activities occur in virtually every area of the state. Because of the sheer geographic scale involved, the accuracy of geographical information regarding the locations where deer have been transferred by humans is one of the most important components of efficacious disease management efforts. Knowing exactly where transplanted populations were trapped and translocated allows epidemiological investigators to quickly and accurately determine the source and extent of pathways for disease propagation and allows responders to focus resources efficiently and effectively. It is intuitively obvious that accurate geospatial information for all Triple T activities is important.

        The proposed amendment also would insert the term “agricultural products” in the definition of “natural habitat.” The intent of the current rules is to authorize releases of game animals and game birds into places where natural habitat alone is capable of providing nutrition and cover and the released species are not dependent on the provision of supplemental, artificial, or unnatural food or cover for survival.

        The proposed amendment would eliminate the definition of “permit year” and replace it with the more accurate term “trapping year.” The department authorizes trapping activities only at times in the life cycle when those activities would exert the least stress on species being trapped.

        The proposed amendment would eliminate the definition of “recruitment,” which is an artefact of previous rules and is not employed in the subchapter.

        The proposed amendment also would eliminate the definition of “stocking policy” because the statutory authority to issue Triple T permits and the criteria for their issuance exist independently of the agency’s stocking policy, rendering the reference superfluous.

        Finally, the proposed amendment would alter the definition of ”wildlife stocking plans” to differentiate the content of stocking plans for species other than deer and javelina, which are partially governed by regulatory provisions in Chapter 65, Subchapter A concerning the content of wildlife management plans for those species. There are no other department rules specifying the content of wildlife management plans for species other than deer and javelina.

        The proposed amendment to §65.102, concerning Disease Detection Requirements, would eliminate the current contents of the section other than subsection (a)(5) and replace them with a reference to Subchapter B, Division 2 of the chapter. As stated previously in this preamble, the CWD testing and movement requirements for deer are set forth in Chapter 65, Subchapter B, Division 2, which makes the contents of §65.102 superfluous. Current subsection (a)(5) establishes an identification requirement for deer released under a Triple T permit and is being retained as subsection (b).

        The proposed amendment to §65.103, concerning Trap, Transport, and Transplant Permit, would consist of several actions. Current subsections (a) – (c) and (f) would be eliminated because those subsections are proposed for relocation to §65.107, concerning Permit Application and Processing, where they more properly belong. Current subsections (d), (e), and (g) would be retained and redesignated as subsections (a), (c), and (b), respectively, with the contents of new subsection (c) altered to stipulate that the antler removal must be at a point within the first two inches above each pedicel. The proposed amendment would add new subsection (d) to stipulate that the department will not issue Triple T permits for desert bighorn sheep or migratory game birds. The department is itself stocking desert bighorn sheep in suitable habitat as part of a decades-long reintroduction program and federal law prohibits the trapping and transplanting of migratory birds. The proposed amendment also would alter the title of the section to include the shorthand name for the permit (Triple T).

        The proposed amendment to §65.107, concerning Permit Application and Processing, would consist of the relocated provisions of current §65.103(a) – (c) and (f), with modifications as noted. As noted previously in this preamble, one of the goals of the proposed amendments is to standardize the application and issuance process for Triple T permits across all species of game animals and game birds. Proposed new §65.107(a)(1) would accomplish those goals. Current paragraph (1) requires applications to be made on a form prescribed by the department. The department has steadily migrated almost all manual application systems to an online format because the ubiquity of smart phones, tablets, laptops, desktops, and other devices makes it possible to utilize automated processes to enhance administrative efficiencies. The proposed new subsection would therefore require an applicant for a Triple T permit to submit an administratively complete application via an online application. Current §65.103(b) requires an applicant for a Triple T permit to submit trap site information, release site information, the number of deer to be trapped at each trap site, and the number of deer to be released at each release site. The proposed new paragraph would require the same information as part of an administratively complete application, consisting of, at a minimum, the specific trap site information indicated on the application form, including a georeferenced map of the trap site;  the specific release site information indicated on the application form, including a georeferenced map of the release site; the number of game animals or game birds to be trapped at each trap site; the number of game animals or game birds to be released at each release site; and any additional habitat, population, and monitoring information or data the department deems necessary to evaluate the prospective activity. The requirement of geospatial data, as discussed earlier in this preamble, is to enhance the department’s ability to conduct contact tracing in the event that epidemiological investigations become necessary. Similarly, the proposed new paragraph broadens the applicability of the current rule language to encompass game animals and game birds, as opposed to being restricted solely to deer.

        The proposed amendment to §65.107 would alter current paragraph (2) to remove a superfluous reference to the name of the permit.

        The proposed amendment to §65.107 would alter current paragraph (3) by removing a reference to Urban White-tailed Deer Removal Permits and multiple trap and release sites because proposed new paragraph (4) provisions governing Triple T permits for aggregate acreages would replace those provisions.

        The proposed amendment to §65.107 would add new paragraph (4) to prescribe the requirements for Triple T permits affecting multiple acreages. The department wishes to provide multiple landowners a way to aggregate acreage to qualify for or maximize game animal and game bird translocation to enhance hunting opportunity. The new provision would allow Triple T permit issuance for an aggregate acreage based on a single application, provided each participating landowner’s name, address, and express consent to join in the aggregate acreage is on file with the department for each tract of land comprising the aggregate acreage; each landowner agrees in writing to the number of game animals or game birds to be trapped or released on the aggregate acreage; and a single landowner has been designated in writing to be the supervisory permittee. Because the Triple T program will be administered via an online application that relates data unique to specific tracts of land enrolled in the program, aggregate acreages must be treated as a single tract for purpose of permit issuance; therefore, a single program participant must be designated to receive the permit and act as the supervisory permittee for Triple T activities.

        Proposed new paragraph (6) would consist of the relocated provisions of current §65.103(b) concerning application deadlines.

        The proposed amendment would alter the provisions of current paragraph (5) to eliminate the word “agent.” The proposed new definition of “landowner” includes a landowner’s agent.

        The proposed amendment to §65.107 would create new subsection (b) containing the relocated contents of §65.103(c)(1) – (7).

        The proposed amendment to §65.109, concerning Issuance of Permit, would stipulate that except as specifically provided otherwise, permits under the subchapter will not be issued without an inspection of the prospective release sites. The department believes that it is prudent to preserve the ability to inspect a prospective release site to ensure that suitable habitat to sustain a population of released game animals or game birds exists and that the release of game animals or game birds will not be detrimental to existing populations or systems.

        The proposed amendment also would remove references to the department’s stocking policy, for reasons discussed previously in this preamble, specify that permit applications can be approved by employees authorized to do so, update a citation to regulations governing aerial wildlife management permits, and relocate the provisions of current §65.103(a)(1) and (2) regarding waiver of inspection for certain properties participating in the department’s Managed Lands Deer Program (MLDP), the submission of population and harvest data, and provisions regarding compliance with the WMP in effect for the property. The current rule contains an obsolete reference to Level II and Level III MLD properties. The rules governing the MLDP were extensively revised in 2015, resulting in the elimination of the Level II and Level III designations, which have been replaced by what is now called the Conservation Option of the MLDP.

        The proposed amendment also would clarify that the review of stipulate department decisions to deny issuance or renewal of a permit relating to deer are to be conducted in compliance with the provisions of Parks and Wildlife Code, Chapter 12, Subchapter G and Subchapter U of the chapter, which is necessary because Parks and Wildlife Code, Chapter 12, Subchapter G and Subchapter U are specific to department permits regarding deer. The review of such decisions with respect to all other species would be conducted under the provisions of proposed new subsection (e).

        The proposed amendment also would add new subsection (e) to establish provisions governing refusal of issuance of permits under the subchapter (other than permits for deer) to persons on the basis of previous criminal behavior involving wildlife law. The proposed new subsection would allow the department to refuse permit issuance to any person who has been finally convicted of, pleaded nolo contendere to, or received deferred adjudication or been assessed an administrative penalty for a violation of:  the subchapter; Parks and Wildlife Code, Chapter C, E, F, G, H, L,  or R; 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.

        The department has determined that the decision to issue a permit to hold protected live wildlife 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 the regulations governing wildlife. Similarly, it is appropriate to deny the privilege of holding wildlife to a person who has exhibited demonstrable disregard for wildlife law in general by committing more egregious (Class B misdemeanors, Class A misdemeanors, and felonies) violations of wildlife law.

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

        The denial of permit issuance or renewal as a result of an adjudicative status listed in the 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 permit issuance 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.

        The proposed amendment would also prohibit any person who has been finally convicted of, pleaded nolo contendere to, received deferred adjudication for, or been assessed an administrative penalty for an offense listed in this section from participating in, assisting, or being involved with an activity authorized under this subchapter. The provision is necessary because permit activities are typically conducted by other persons in addition to the person named on the permit. The department believes that the conditions that would prevent a person from obtaining a permit should also apply to persons engaging in permitted activities under a permit.

        The proposed amendment to §65.111, concerning Permit Conditions and Period of Validity, would create a new subsection (a) to stipulate that the department may place limitations on the hunting or taking of game animals or game birds at a release site that the department deems necessary to facilitate or enhance the establishment of a sustainable population. The department views the authorization for Triple T permits to be an exercise in ethical wildlife management practices and will not allow the hunting of released animals if the circumstances dictate that the population is not established or sustainable.

        The proposed amendment to §65.111(d) would provide that the required financial disclosure form must be provided at the conclusions of all trapping activities rather than upon release of the trapped game bird or game animal.  Movement of game birds or game animals under a single Triple T permit may require multiple trapping activities and transports for release and the proposed amendment clarifies that only one financial disclosure form is required for all activities under a single Triple T permit.

        The proposed amendment to §65.115, concerning Notification, Recordkeeping, and Reporting Requirements, would require the notification requirements of subsection (a) to be by email. As discussed earlier in this preamble, the department is attempting to modernize formerly manual processes. The proposed amendment would also eliminate a redundancy in subsection (b) regarding the daily log required to be kept by permittees.

2. Fiscal Note.

        Mitch Lockwood, Big Game Program Director, has determined that for each of the first five years that the rules as proposed are in effect, there will be no fiscal implications to state or local governments as a result of administering or enforcing the rule.

3. Public Benefit/Cost Note.

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

        (A) The public benefit anticipated as a result of enforcing or administering the proposed rules will be better organized regulations that reflect a standardized approach to the issuance of permits authorizing the trapping, transporting, and transplanting of game animals and game birds.

        There will be no adverse economic effect on persons required to comply with the rule.

        (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.

        (C) The department has determined that because the proposed rules govern activities involving public wildlife resources that by statute cannot be bought, sold, or harvested for profit in this state (i.e., that cannot be a commercial commodity), there is therefore no direct economic effect on any small businesses, micro-businesses, or rural community. Therefore, neither the economic impact statement nor the regulatory flexibility analysis described in Government Code, Chapter 2006, is required.

        (D) 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.

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

        (F) 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.

        (G) 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 neither create nor eliminate a government program; not result in an increase or decrease in the number of full-time equivalent employee needs; not result in a need for additional General Revenue funding; not affect the amount of an existing fee; not create or expand an existing regulation; not increase or decrease the number of individuals subject to regulation; and not positively or adversely affect the state’s economy.

4. Request for Public Comment.

        Comments on the proposal may be submitted to Mitch Lockwood at (830) 792-9677, e-mail: mitch.lockwood@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, §43.061, which requires the commission to adopt rules for the content of wildlife stocking plans, certification of wildlife trappers, and the trapping, transporting, and transplanting of game animals and game birds under Chapter 43, Subchapter E.

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

6. Rule Text.

        §65.101. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. All other words and terms shall have the meanings assigned by Parks and Wildlife Code.

                 (1) Aggregate acreage — Contiguous tracts of land, to, from, and between which game animals and game birds have complete and unrestricted access, combined by multiple landowners to create an area of land for the purpose of trapping or releasing game animals or game birds under a permit issued under this subchapter.

                 (2)[(1)] Amendment — A specific alteration or revision of currently permitted activities, the effect of which does not constitute, as determined by the department, a new trapping, transporting and transplanting operation.

                 (3)[(2)] Certified Wildlife Trapper — An individual who receives a department-issued permit pursuant to this section.

                 (4) Georeferenced map — A map image incorporating a system of geographic ground coordinates, such as latitude/longitude or Universal Transverse Mercator (UTM) coordinates.

                 (5) Landowner — Any person who has an ownership interest in a tract of land, and includes a person authorized by the landowner to act on behalf of the landowner as the landowner’s agent or manager of an aggregate acreage.

                 (6)[(3)] Natural Habitat — The type of site where a game animal or game bird normally occurs and existing game populations are not dependent on manufactured feed, agricultural products,[or] feeding devices or cover for sustenance.

                 (7)[(4)] Nuisance Squirrel — A squirrel that is causing damage to personal property.

                 (8)[(5)] Overpopulation — A condition where the habitat is being detrimentally affected by high animal densities, or where such condition is imminent.

                 (9)[(6)] Permittee — Any person authorized by a permit to perform activities governed by this subchapter.

                 [(7) Permit year — September 1 of any year to August 31 of the following year.]

                 (10)[(8)] Processing facility — The specific destination of white-tailed deer trapped and transported pursuant to a permit to trap, transport, and process surplus white-tailed deer where deer will be processed for consumption.

                 (11)[(9)] Qualified individual — An individual who has a wildlife management plan approved by the department.

                  [(10) Recruitment — The Fall survey estimate of the number of fawns (any deer less than one year of age) on a property.]

                 (12)[(11)] Release Site — The specific destination of game animals or game birds to be relocated pursuant to a permit issued under this subchapter.

                 [(12) Stocking Policy — The policy governing stocking activities made or authorized by the department as specified in §§52.101 — 52.105, 52.201, 52.202, 52.301 and 52.401 of this title (relating to Stocking Policy).]

                 (13) Supervisory permittee — A person who supervises the activities of permittees authorized to conduct activities.

                 (14) Trap Site — The specific source of game animals or game birds to be relocated pursuant to a permit issued under this subchapter.

                 (15) Trapping year — The period of time between September 1 of one year and August 31 of the immediately following year.

                 (16)[(15)] Wildlife Stocking Plans — The stocking plan for [a]:

                         (A) a trap site consists of the biological information about the trap site required by the department on the application for a permit under this subchapter; and

                         (B) a release site consists of:

                                  (i) the biological information about the release site required by the department on the application for a permit under this subchapter; or

                                  (ii) if the prospective activities involve deer or javelina, [is the same as that required for] a wildlife management plan (WMP) prepared under the provisions of §65.25 of this title (relating to Wildlife Management Plan).

        §65.102. Disease Detection Requirements.

                 (a) The provisions of Subchapter B, Division 2, of this chapter apply to the movement of deer pursuant to a permit issued under this subchapter, and

                 (b) All deer released shall be tattooed in one ear with a department-assigned identification number.

                 [(a) Except as provided in subsections (b) and (e) of this section, no permits to trap, transport, and transplant white-tailed deer or mule deer shall be issued by the department unless a sample of adult deer from the trap site equivalent to 10% of the number of deer to be transported has been tested for chronic wasting disease by the Texas Veterinary Medical Diagnostic Laboratories.]

                         [(1) The department will not authorize trapping activities unless the test result for each deer in the minimum required sample is ’not detected.’]

                         [(2) The department will not issue a permit for any activity involving a trap site from which a ’detected’ result for chronic wasting disease has been obtained.]

                 [(3) The sample size shall be no more than 40 or less than ten animals.]

                 [(4) The test results required by this section shall be presented to the department prior to the transport of any deer.]

                 [(5) All deer released shall be marked in one ear with a department-assigned identification number.]

                 [(6) A test result is not valid if the sample was collected or tested prior to October 1 of the previous permit year.]

                 [(7) Except as provided in paragraph (8) of this section, a test result shall not be used more than once to satisfy the requirements of this section.]

                 [(8) If a permittee traps, transports, and transplants fewer deer than are authorized in a given permit year, that permittee may trap, transport, and transplant the remaining deer the following year from the same trap site without having to provide new samples for testing; however, the person must apply for a new Triple T permit and must re-submit the test results from the previous year. If the application for a new Triple T permit specifies a number of deer greater than the remainder from the previous year, the requirements of paragraphs (1)-(4) of this subsection apply to the additional deer.]

        [(b) The provisions of subsection (a) of this section do not apply to a property if:]

                 [(1) there have been at least 60 CWD-IHC (immunohistochemistry) test results of ’not detected’ received by the department for the property; and]

                 [(2) there have been no results of ’detected’ received by the department for the property.]

        [(c) A property meeting the conditions of subsection (b) of this section continues to qualify for exemption from the provisions of subsection (a) of this section if all samples from the property continue to test ’not detected’ on an annual basis. The minimum requirement for satisfying the provisions of this subsection is one deer per year or at least 3% of the number of deer moved from the property each calendar year, whichever is higher.]

        [(d) The provisions of subsection (a) of this section automatically apply to any property that receives deer from a trap site that does not meet the requirements of subsections (b) and (c) of this section.]

        [(e) CWD testing is not required for deer trapped on any property if the deer are being moved to adjacent, contiguous tracts owned by the same person who owns the trap site property.]

        [(f) Nothing in this section authorizes the take of deer. The take of deer for the purposes of this section shall be in accordance with applicable laws and regulations.]

        [(g) This section does not apply to deer possessed pursuant to a permit to trap, transport, and process white-tailed deer.]

        §65.103. Trap, Transport, and Transplant Permit (Triple T).

                 [(a) Applications may be approved without an inspection, provided the property has been issued Level II or Level III MLD Permits during the year of the release, the landowner furnishes a minimum of three years of population data and two years of harvest data, and is in compliance with all requirements of the wildlife management plan for the property;]

                         [(1) the number of deer to be trapped (in addition to the number of deer harvested) does not exceed the population reduction specified in the wildlife management plan for the trap site; and]

                         [(2) the number of deer to be released does not cause the total population of deer on the release site to exceed the total population size specified in a management plan under the provisions of §65.25 of this title (relating to Wildlife Management Plan (WMP))].

                 [(b) Applications received by the department between September 1 and November 15 in a calendar year shall be approved or denied within 45 days of receipt. Permits for the current trapping year will not be issued for applications received later than the first business day after January 1. To be processed, an application must contain, at a minimum, the following information as specified on department form PWD 1135A (Trap, Transport, and Transplant Permit Application):]

                         [(1) trap site information;]

                         [(2) release site information;]

                         [(3) the number of deer to be trapped at each trap site; and]

                         [(4) the number of deer to be released at each release site.]

                 [(c) The department may deny a permit application if the department determines that:]

                         [(1) the removal of game animals or game birds from the trap site may be detrimental to existing populations or systems;]

                         [(2) the removal of game animals or game birds may detrimentally affect the population status on neighboring properties;]

                          [(3) the release of game animals or game birds at the release site may be detrimental to existing populations or systems;]

                          [(4) the release site is outside of the suitable range of the game animal or game bird;]

                          [(5) the applicant has misrepresented information on the application or associated wildlife stocking plan;]

                          [(6) the activity identified in the permit application does not comply with the provisions of the department’s stocking policy; or]

                         [(7) the trapping activity would involve deer held under a Deer Management Permit.]

                  [(d) A buck deer transported under the provisions of this subchapter shall have its antlers removed prior to transport.]

                 (a)[e)] The department may establish trapping periods, based on biological criteria, when the trapping, transporting, and transplanting of game animals and game birds under this section by individuals will be permitted.

                 [(f) The department may, at its discretion, require the applicant to supply additional information concerning the proposed trapping, transporting, and transplanting activity when deemed necessary to carry out the purposes of this subchapter.]

                 (b)[(g)] Game animals and game birds killed in the process of conducting permitted activities shall count as part of the total number of game animals or game birds authorized by the permit to be trapped.

                 (c) A buck deer transported under the provisions of this subchapter shall have its antlers removed at a point within the first two inches above each pedicel prior to transport.

                 (d) The department will not issue a permit under this subchapter for an activity involving desert bighorn sheep or migratory game birds.

        §65.107. Permit Application and Processing. [Permit applications.]

                 (a) Application.

                         (1) An applicant for a permit under this subchapter shall submit an administratively complete application via an online application designated by the department for that purpose.  The department will not process an application that is not administratively complete. An administratively complete application is an application that provides, at a minimum, the following, as indicated on the application form:

                                  (A) the specific trap site information indicated on the application form, including a georeferenced map of the trap site;

                                  (B) the specific release site information indicated on the application form, including a georeferenced map of the release site;

                                  (C) the number of game animals or game birds to be trapped at each trap site; 

                                  (D) the number of game animals or game birds to be released at each release site; and

                                  (E) any additional habitat, population, and monitoring information or data the department deems necessary to evaluate the prospective activity.

                         [(1) Application for permits authorized under this subchapter shall be on a form prescribed by the department.]

                         (2) A single application [for a Trap, Transport, and Transplant Permit] may specify multiple trap and/or release sites; however, the permit fee prescribed by Chapter 53 of this title (relating to Finance) shall be assessed on a per-release site basis.

                         (3) [A single application for an Urban White-tailed Deer Removal Permit may specify multiple trap and/or release sites.] A single application for a Trap, Transport, and Process Surplus White-tailed Deer Permit may specify multiple trap sites and/or processing facilities.

                         (4) A single application may be submitted for an aggregate acreage, provided:

                                  (i) the landowner’s name, address, and express consent to join in the aggregate acreage is on file with the department for each tract of land comprising the aggregate acreage; 

                                  (ii) each landowner agrees in writing to the number of game animals or game birds to be trapped or released on that aggregate acreage; and

                                  (iii) a single landowner has been designated in writing to be the supervisory permittee.

                         (5)[(4)] A single application may not specify multiple species of game birds and/or game animals.

                         (6) Applications received by the department between September 1 and November 15 in a calendar year shall be approved or denied within 45 days of receipt. Permits for the current trapping year will not be issued for applications received later than the first business day after January 1. 

                         (7)[(5)] The application must be signed by:

                                  (A) the applicant;

                                  (B) the landowner [or agent] of each trap site[the trap site(s)]; and

                                  (C) the landowner [or agent] of each release site[the release site(s)] or the owner or agent of each[the] processing facility, as applicable[or facilities].

                         (8)[(6)] The applicant may designate certain persons and/or companies that will be involved in the permitted activities, including direct handling, transport and release of game animals or game birds. In the absence of the permittee, at least one of the named persons and/or companies shall be present during the permitted activities.

                 (b) The department will not issue a permit if the department determines that: 

                          (1) the removal of game animals or game birds from the trap site may be detrimental to existing populations or systems; 

                         (2) the removal of game animals or game birds from the trap site may detrimentally affect the population status on neighboring properties;

                         (3) the release of game animals or game birds at the release site may be detrimental to existing populations or systems;

                         (4) the release site is outside of the suitable range of the game animal or game bird;

                         (5) the release site does not contain sufficient and/or suitable habitat to sustain a population of released game animals or game birds;

                         (6) the applicant has misrepresented information on the application or associated wildlife stocking plan; or

                         (7) the trapping activity would involve deer held under a Deer Management Permit.

        §65.109. Issuance of Permit.

                 (a) Except as may be specifically provided otherwise, permits[Permits] authorized under this subchapter:

                         (1) will not be issued until the department has conducted an inspection of the prospective release sites, if the department believes inspection is warranted[will be issued, with the exception of permits to trap, transport, and process surplus white-tailed deer, only if the activities identified in the application are determined by the department to be in accordance with the department’s stocking policy];

                         (2) will be issued only if the application and any associated materials are approved by a Wildlife Division technician or biologist authorized to approve Triple T permit applications[assigned to write wildlife management plans]; and

                         (3) do not exempt an applicant from the requirements of §§65.150 – 65.162[§§55.142 — 55.152] of this title (relating to Permits for Aerial Management of Wildlife and Exotic Animals).

                 (b) A Triple T permit for deer may be approved without inspection of the release sites, provided the property is enrolled and in compliance with all applicable provisions of the Conservation Option of the Managed Lands Deer Program under §65.29 of this title (relating to Managed Lands Deer (MLD) Program) during the year of the release, the landowner furnishes a minimum of three years of population data and two years of harvest data, and is in compliance with all requirements of the WMP for the property; and

                         (1) the number of deer to be trapped (in addition to the number of deer harvested) does not exceed the population reduction specified in the wildlife management plan for the trap site; and

                         (2) the number of deer to be released does not cause the total population of deer on the release site to exceed the total population size specified in a management plan under the provisions of §65.25 of this title.

                 (c)[(b)] In addition to the provisions of Parks and Wildlife Code, Chapter 12, Subchapter G, the department may refuse permit issuance or renewal relating to deer as provided in Subchapter U of this chapter (relating to Authority to Refuse to Issue or Renew Permit).

                 (d)[(c)] The department shall conduct all reviews of department decisions to deny issuance or renewal of a permit relating to deer under this subchapter in compliance with the provisions of Parks and Wildlife Code, Chapter 12, Subchapter G and Subchapter U of this chapter.

                 (e) The department may refuse to issue a permit under this subchapter relating to game birds and any game animal other than deer 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) Parks and Wildlife Code, Chapter 43, Subchapter C, E, F, G, H, L, or R;

                         (2) a provision of the Parks and Wildlife Code that is not described by paragraph (1) of this subsection that is punishable as a Parks and Wildlife Code:

                                  (A) Class A or B misdemeanor;

                                  (B) state jail felony; or

                                  (C) felony;

                         (3) Parks and Wildlife Code, §63.002; or 

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

                 (f) The department may refuse to issue a permit under this subchapter relating to game birds and any game animal other than deer 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.

                 (g) An applicant for a permit under this subchapter relating to game birds and any game animal other than deer may request a review of a decision of the department to refuse issuance of a permit.

                         (1) An applicant seeking review of a decision of the department with respect to the issuance or renewal of a permit 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 expertise in wildlife management, appointed or approved by the executive director, or designee.

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

                 (h) No person who has been finally convicted of, pleaded nolo contendere to, received deferred adjudication for, or assessed an administrative penalty for an offense listed in this section may participate, assist, or be involved with an activity authorized under this subchapter. 

        65.111. Permit Conditions and Period of Validity.

                 (a) The department may place limitations on the hunting or taking of game animals or game birds at a release site that the department deems necessary to facilitate or enhance the establishment of a sustainable population. 

                 (b)[(a)]A permittee may distribute the cost of permitted activities by entering into cost-sharing agreements with other parties involved, but such cost-sharing arrangements shall not violate the provisions of §65.117 of this title (relating to Prohibited Acts).

                 (c)[(b] If it is determined by the department that any condition listed on the permit has been violated, the department may suspend the permit after notifying the supervisory permittee that a violation has occurred. All contested cases shall be conducted pursuant to the provisions of Government Code, Chapter 2001.

                 (d)[(c)] With the exception of permits to trap, transport, and process surplus white-tailed deer where deer at the trap site pose a threat to human health and safety, permits issued pursuant to this subchapter shall expire at the end of the specified trapping period for that species. The maximum period of validity for a permit issued under this subchapter shall not exceed one year.

                 (e)[(d)] Unattended trapping equipment and devices at trap sites within incorporated areas shall be labeled with the owner’s name, complete address, and telephone number; the date of trap site establishment; and the date the trap site was last visited.

                 (f)[(e)] Unattended trap sites that may pose a human health and safety hazard shall be clearly marked as such.

        §65.115. Notification, Recordkeeping, and Reporting Requirements.

                 (a) Except as specifically authorized by the department in the provisions of a permit, no[No] person shall trap, transport, or release a game animal or game bird under a permit authorized by this subchapter unless that person has notified the department not less than 12 hours nor more than 48 hours prior to each instance of trapping, transportation, or release. Notification shall be by [fax oremail to[telephone contact with] the Law Enforcement Communications Center in Austin, and shall consist of:

                         (1) in the case of trapping or transport, the supervisory permittee’s name, permit number, and the date(s) that the trapping or transport will occur; and

                         (2) in the case of release, the date, time, and specific location of the release.

                 (b) A supervisory permittee shall maintain, [keep current,] and furnish upon request by a department employee acting within the scope of official duties a current daily activity log containing:

                         (1) the number of game animals or game birds trapped;

                         (2) the sex of game animals or game birds trapped;

                         (3) the locations where game animals or game birds were trapped and released or processed;

                         (4) the dates when trapping occurred;

                         (5) the trapping methods used;

                         (6) any mortality incurred during the permitted activity and the disposition of carcasses; and

                         (7) any completed financial disclosure forms required by subsection (d) of this section.

                 (c) The supervisory permittee shall file a report on a form provided by the department not later than 30 days following the expiration date of the permit. The report shall include, at a minimum:

                         (1) the number of game animals or game birds trapped;

                         (2) the sex of game animals or game birds trapped;

                         (3) the locations where game animals or game birds were trapped and released or processed;

                         (4) the dates when trapping occurred;

                         (5) the trapping methods used;

                         (6) any mortality incurred during the permitted activity and the disposition of carcasses; and

                         (7) the completed financial disclosure forms required by subsection (d) of this section.

                 (d) Upon the completion of all trapping activities authorized by a permit under this subchapter, the supervisory permittee shall complete and sign a department-supplied financial disclosure form. The form shall also be signed by the landowner of the trap site (or a full-time employee of the landowner who is authorized to act on the landowner’s behalf) and[prior to the transport of any game animal or game bird. Upon the release or delivery to a processing facility of the game animals or game birds, the form shall be signed] by the owner of the release site or processing facility (or a full-time employee of the landowner who is authorized to act on the landowner’s behalf or an authorized representative of the processing facility). In the instance that a permit authorizes multiple release sites or processing facilities, a separate department-supplied financial disclosure form shall be required for each trap site/release site or processing facility combination. The form shall be supplied by the department to the supervisory permittee and shall be retained as provided by subsection (b) of this section.

                 (e) All game animals or game birds that die as a result or in the course of activities conducted under a permit issued under authority of this subchapter shall be kept in an edible condition until disposed of by one of the following methods:

                         (1) documented donation to charitable organizations, public hospitals, orphanages, or indigent persons;

                         (2) documented transfer or donation to other persons authorized to receive such specimens under a license or permit issued by the department; or

                         (3) special disposition as prescribed in writing by 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


Work Session Item No. 7
Exhibit C

DEER MANAGEMENT PERMIT (DMP) RULES

PROPOSAL PREAMBLE

1. Introduction.

        The Texas Parks and Wildlife Department proposes an amendment to §65.133, concerning General Provisions. The proposed amendment would consist of several changes. The proposed amendment would replace the word “wild” with the term “free-ranging.” Under Parks and Wildlife Code, §43.601, the department may issue a permit for the management of the wild white-tailed deer population on acreage enclosed by a fence capable of retaining white-tailed deer (under reasonable and ordinary circumstances) and capable of preventing entry by a white-tailed deer. Under Parks and Wildlife Code, §1. 011, all wild animals inside the borders of this state are the property of the people of this state. Parks and Wildlife Code, §1.101, defines “wild,” when used in reference to an animal, to mean a species, including each individual of a species, that normally lives in a state of nature and not ordinarily domesticated. The current terminology in §65.133 is imprecise because the distinction it is intended to address is between deer held in captivity and deer that are free-ranging (i.e., capable of coming and going at will). Parks and Wildlife Code, §1.011, is unambiguous: all individual deer, whether free-ranging or captive, are wild and are the property of the people of the state. The proposed amendment would remedy that imprecision. The proposed amendment also would remove a reference to breeder deer as being private property, which is erroneous for the reasons described earlier.

        The proposed amendment would also update references to statute and other rules of the department that are referenced in §65.133. The current rule refers to “Scientific Breeder’s Permit.” In 2017, the Texas Legislature amended Parks and Wildlife Code, Chapter 43, Subchapter L to rename that permit the deer breeder’s permit. Similarly, the current rule refers to the department’s Managed Lands Deer Program with language that is no longer accurate, as the rules governing that program have been moved. Therefore, the proposed amendment would introduce the correct references and terminology in subsections (c) and (e). The proposed amendment to subsection similarly corrects a reference to a section title.

2. Fiscal Note.

        Mitch Lockwood, Big Game Program Director, has determined that for each of the first five years that the rule as proposed is in effect, there will be no fiscal implications to state or local governments as a result of administering or enforcing the rule.

3. Public Benefit/Cost Note.

        Mr. Lockwood 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 proposed rules will be clear, accurate, and unambiguous rules.

        There will be no adverse economic effect on persons required to comply with the rule.

        (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.

        (C) The department has determined that because the proposed rule regulates a resource management program administered by the department for the sole purpose of enhancing the enjoyment and use of public wildlife resources that by statute cannot be bought, sold, or harvested for profit in this state (i.e., that cannot be a commercial commodity), there is therefore no direct economic effect on any small business, micro-business, or rural community. Therefore, neither the economic impact statement nor the regulatory flexibility analysis described in Government Code, Chapter 2006, is required.

        (D) 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.

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

        (F) 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.

        (G) 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 neither create nor eliminate a government program; not result in an increase or decrease in the number of full-time equivalent employee needs; not result in a need for additional General Revenue funding; not affect the amount of an existing fee; not create or expand an existing regulation; not increase or decrease the number of individuals subject to regulation; and not positively or adversely affect the state’s economy.

4. Request for Public Comment.

        Comments on the proposal may be submitted to Mitch Lockwood at (830) 792-9677, e-mail: mitch.lockwood@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, §43.603, which provides that a permit issued under Parks and Wildlife Code, Chapter 43, Subchapter R, is subject to conditions established by the commission.

        The proposed amendment affects Parks and Wildlife Code, Chapter 43, Subchapter R.

6. Rule Text.

        §65.133. General Provisions.

                 (a) No change.

                 (b) Except as provided in subsection (c) of this section, any deer introduced into a pen containing deer detained under a DMP become free-ranging[wild] deer and must be released according to the provisions of §65.136 of this title (relating to Release).

                 (c) If approved under the deer management plan, buck deer held under the provisions of Subchapter T of this chapter (relating to Deer Breeder Permits[Scientific Breeder’s Permit]) may be introduced into a pen containing deer detained under a DMP. Such deer [remain private property and] may be recaptured; however, any such deer within the pen when [wild] deer are released under the provisions of §65.136 of this title (relating to Release of Deer) become free-ranging [wild] deer.

                 (d) (No change.)

                 (e) The holder of a DMP is entitled to the issuance of Managed Lands Deer Program tags[Permits] subject to the provisions of §65.29[§65.26] of this title (relating to Managed Lands Deer (MLD) Program[Permits]).

                 (f) – (g) (No change.)

        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


Work Session Item No. 7
Exhibit D

DISEASE DETECTION AND RESPONSE RULES

PROPOSAL PREAMBLE

1. Introduction.

        The Texas Parks and Wildlife Department proposes an amendment to §65.92, concerning CWD Testing. The proposed amendment would require deer breeders to report all mortalities of breeder deer possessed in a breeding facility within 14 days of detection and to submit all CWD test samples to an accredited testing laboratory within 14 days of collection.

        Prior to 2015, the department’s regulatory apparatus for detecting chronic wasting disease (CWD) in captive deer was contained in various subchapters regulating various permits that authorize the holding of deer in captivity. The testing standards imposed by the rules were considered to be at best minimally efficacious for detecting CWD in captive deer populations and were intended to be the least burdensome regulatory footprint possible in light of the fact that up to that point in time, CWD had not been discovered in captive breeding facilities in Texas. However, with the discoveries of multiple CWD-positive deer in deer breeding facilities in 2015 and 2016, the department adopted rules that imposed significantly more robust testing protocols and movement restrictions. Those rules are contained in Chapter 65, Subchapter B, and supersede the testing rules contained in Chapter 65, Subchapter T.

        CWD is a fatal neurodegenerative disorder that affects some cervid species, including white-tailed deer, mule deer, elk, red deer, sika, and their hybrids (susceptible species). It is classified as a TSE (transmissible spongiform encephalopathy), a family of diseases that includes scrapie (found in sheep), bovine spongiform encephalopathy (BSE, found in cattle), and variant Creutzfeldt-Jakob Disease (vCJD) in humans.

        Much remains unknown about CWD. The peculiarities of its transmission (how it is passed from animal to animal), infection rate (the frequency of occurrence through time or other comparative standard), incubation period (the time from exposure to clinical manifestation), and potential for transmission to other species are still being investigated. There is no scientific evidence to indicate that CWD is transmissible to humans. What is known is that CWD is invariably fatal to cervids, and is transmitted both directly (through deer-to-deer contact) and indirectly (through environmental contamination). Moreover, a high prevalence of the disease correlates with deer population declines, and human dimensions research suggests that hunters will avoid areas of high CWD prevalence. Additionally, the apparent persistence of CWD in contaminated environments represents a significant obstacle to eradication of CWD from either farmed or free-ranging cervid populations.

        It is imperative that deer mortalities within a breeding facility be reported promptly for inventory reconciliation which is necessary for the department to be able to quickly initiate contact tracing in the event of an epidemiological investigation. Prompt submission of CWD samples will aid in early detection of the disease where it exists, which will reduce the probability of CWD being transferred from a CWD-positive deer breeding facility to other deer breeding facilities or release sites. Additionally, prompt submission of CWD samples is recommended by accredited diagnostic testing laboratories. The proposed amendment is intended to provide assurances that reporting and testing protocols are optimal.

2. Fiscal Note.

        Mitch Lockwood, Big Game Program Director, has determined that for each of the first five years that the rule as proposed is in effect, there will be no fiscal implications to state or local governments as a result of administering or enforcing the rule.

3. Public Benefit/Cost Note.

        Mr. Lockwood 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 proposed rule will be the reduction of the probability of CWD being spread from facilities where it might exist and an increase in the probability of detecting CWD if it does exist, thus ensuring the public of continued enjoyment of the resource and also ensuring the continued beneficial economic impacts of hunting in Texas.

        There will be no adverse economic effect on persons required to comply with the rule.

        (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.

        (C) The department has determined that proposed rule would result in no direct economic effect on any small businesses, micro-businesses, or rural community. Therefore, neither the economic impact statement nor the regulatory flexibility analysis described in Government Code, Chapter 2006, is required.

        (D) 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.

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

        (F) 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.

        (G) 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 neither create nor eliminate a government program; not result in an increase or decrease in the number of full-time equivalent employee needs; not result in a need for additional General Revenue funding; not affect the amount of an existing fee; not create or expand an existing regulation; not increase or decrease the number of individuals subject to regulation; and not positively or adversely affect the state’s economy.

4. Request for Public Comment.

                Comments on the proposal may be submitted to Mitch Lockwood at (830) 792-9677, e-mail: mitch.lockwood@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, Chapter 43, Subchapter L, which authorizes the commission to make regulations governing the possession, transfer, purchase, sale, of breeder deer held under the authority of the subchapter.

        The proposed amendment affects Parks and Wildlife Code, Chapter 43, Subchapter L.

6. Rule Text.

        §65.92. CWD Testing.

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

                 (h) Deer breeders shall report all deer mortalities that occur within a breeding facility within 14 days of detection.  

                 (i) All CWD test samples shall be submitted to an accredited testing laboratory within 14 days of collection.

        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


Work Session Item No. 8
Presenter: Emma Clarkson

Work Session
Statewide Oyster Fishery Proclamation
Temporary Closure of Oyster Restoration Areas in Galveston Bay and Aransas Bay
Request Permission to Publish Proposed Changes in the Texas Register
August 26, 2020

I.      Executive Summary:  With this item, the staff seeks permission to publish proposed changes to the Statewide Oyster Fishery Proclamation in the Texas Register for public comment. The proposed amendment would close several areas of Galveston Bay and Aransas Bay for two harvest seasons in order to conduct oyster habitat restoration activities and allow oysters to repopulate these areas and reach market size.

 

II.     Discussion:  Under Texas Parks and Wildlife Code §76.301, the Texas Parks and Wildlife Commission (Commission) is authorized to regulate the taking, possession, purchase, and sale of oysters, including prescribing the times, places, conditions, and means and manner of taking oysters. Additionally, Texas Parks and Wildlife Code §76.115 authorizes the Texas Parks and Wildlife Department (TPWD) to close an area to the taking of oysters when the Commission finds that the area is being overworked or damaged, or the area is to be reseeded or restocked.

Oyster reefs in Texas have been impacted due to drought, flooding, and hurricanes (like Hurricane Ike in September 2008 and Hurricane Harvey in August 2017), as well as high harvest pressure. TPWD’s oyster habitat restoration efforts in Texas bays to date have resulted in a total of approximately 1,720 acres of oyster habitat returned to productive habitat. The proposed closures are expected to result in the restoration of approximately 195.9 acres of productive oyster habitat.

Attachment – 1

  1. Exhibit A – Proposed Statewide Oyster Proclamation

Work Session Item No. 8
Exhibit A

STATEWIDE OYSTER FISHERY PROCLAMATION

PROPOSAL PREAMBLE

1. Introduction

        The Texas Parks and Wildlife Department proposes an amendment to §58.21, concerning Taking or Attempting to Take Oysters from Public Oyster Beds: General Rules.

        The proposed amendment would prohibit the harvest of oysters for two years at six sites: three sites in Conditionally Approved Area TX-4 in upper Galveston Bay (Trinity Sanctuary Reef, Trinity Harvestable Reef 1, and Trinity Harvestable Reef 2; approximately 23.0, 16.9 and 16.9 acres, respectively), one site in Conditionally Approved Area TX-6 in Galveston Bay (Resignation Reef, 27.2 acres), one site in Conditionally Approved Area TX-1 in Galveston Bay (Pepper Grove Reef, 11.9 acres), and one site in Approved Area TX-30 in Aransas Bay (Grass Island Reef, 80 acres). The Texas Department of State Health Services (DSHS) regulates shellfish sanitation and designates specific areas where oysters may be harvested for human consumption. The designation of "Conditionally Approved" or "Approved" is determined by DSHS. The proposed amendment would also correct the name of a reef complex in subsection (c)(2)(A)(ii). The current rules refer to that area as South Redfish Reef. It is more commonly known as Pasadena Reef, and should not be confused with a separate restoration project on South Redfish reef that was restored in 2011 and is currently open to harvest.

        The temporary closures will allow for the planting of oyster cultch to repopulate in those areas and enough time for those oysters to reach legal size for harvest. Oyster cultch is the material to which oyster spat (juvenile oysters) attach in order to create an oyster bed.

        Under Parks and Wildlife Code, §76.115, the department may close an area to the taking of oysters when the commission finds that the area is being overworked or damaged or the area is to be reseeded or restocked. Oyster reefs in Texas have been impacted due to drought, flooding, and hurricanes (Hurricane Ike, September 2008 and Hurricane Harvey, August 2017), as well as high harvest pressure. The department’s oyster habitat restoration efforts to date have resulted in a total of approximately 1,720 acres of oyster habitat returned to productive habitat within these bays.

        House Bill 51 (85th Legislature, 2017) included a requirement that certified oyster dealers re-deposit department-approved cultch materials in an amount equal to thirty percent of the total volume of oysters purchased in the previous license year. For the 2021 fiscal year, the department anticipates this requirement will result in the restoration of more than thirty acres. Funds generated from House Bill 51 were used to restore 4.5 acres on Pepper Grove Reef in 2019 and are expected to be used to restore up to 27.2 acres on Resignation Reef in 2020-2021.

        Following Hurricane Harvey in 2017, the National Marine Fisheries Service (NMFS) awarded the Texas Parks and Wildlife Department over $13 million of fisheries disaster relief funding that was appropriated by Congress under the Bipartisan Budget Act of 2018 (P.L. 115-123). The notification to the governor of Texas from National Marine Fisheries Service (NMFS) stated that funds should be spent to “strengthen the long-term economic and environmental sustainability of the fishery”, and over $4 million was dedicated specifically to oyster restoration activities.  A portion of these funds, combined with funding generated by House Bill 51 (2017) and the Shell Recovery Program (Chapter 76.020, Senate Bill 932, 82nd Leg., 2011), will be used to restore oyster habitats within an 80-acre area on Grass Island reef in Aransas Bay. Oyster abundance on this reef has severely declined over time, and average oyster abundance on Grass Island is 75% less than the average oyster abundance on other reefs in Aransas Bay. The portion of the reef selected for restoration is characterized by degraded substrates. The restoration activities will focus on establishing stable substrate and providing suitable conditions for spat settlement and oyster bed development.

        The upper Galveston Bay sites are located in the proximity of Beasley Reef near Trinity Bay and have been degraded due to a variety of stressors. The Nature Conservancy (TNC) secured funding through the National Fish and Wildlife Foundation (NFWF) Gulf Environmental Benefit Fund (GEBF) program to restore oyster habitat. The three sites in upper Galveston Bay include two 16.9-acre sites that will be restored on a degraded oyster reef that is commercially- and recreationally-fished, and 23.0 acres that will serve as a sanctuary reef. The sanctuary reef will be constructed of cultch materials of a size that will limit commercial harvest activities and provide a source of oyster larvae that will colonize other oyster habitat in this bay system.

2. Fiscal Note.

        Lance Robinson, Deputy Division Director, Coastal Fisheries Division, has determined that for each of the first five years that the rule as proposed 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. Robinson also has determined that for each of the first five years that the rule as proposed is in effect, the:

                 (A) The public benefit anticipated as a result of enforcing or administering the proposed rule will be the dispensation of the agency’s statutory duty to protect and conserve the fisheries resources of this state; the duty to equitably distribute opportunity for the enjoyment of those resources among the citizens; the execution of the commission’s policy to maximize recreational opportunity within the precepts of sound biological management practices; the potential for increased oyster production by repopulating damaged public oyster reefs and allowing these oysters to reach legal size and subsequent recreational and commercial harvest; and providing protection from harvest to a reef complex thus establishing a continual supply of oyster larvae to colonize oyster habitat within the bay system.

                 (B) Under provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses and micro-businesses. 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 because the areas designated for closure have been degraded to the extent that they no longer support any commercial exploitation, the closures effected by the proposed rules will not result in direct adverse economic impacts to any small business, microbusiness, or rural community. The department does note, however, that numerous areas previously closed (South Redfish Reef, Texas City 1, Texas City 2, Hanna’s Reef, and Middle Reef), are now home to healthy populations of oysters that have reached legal size and may be harvested by both recreational and commercial users.

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

                 (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) The department has determined that because the rules as proposed do not impose a cost on regulated persons, it is not necessary to repeal or amend any existing rule.

                 (G) The department has determined that the proposed rules is in compliance with Government Code §505.11 (Actions and Rule Amendments Subject to the Coastal Management Program).

                 (H) 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) 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) will expand an existing regulation (by creating new area closures);

                 (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 proposed rule may be submitted to Dr. Tiffany Hopper, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4650; email: tiffany.hopper@tpwd.texas.gov, or via the department website at www.tpwd.texas.gov.

5. Statutory Authority.

        The amendment is proposed under Parks and Wildlife Code, §76.301, which authorizes the commission to regulate the taking, possession, purchase and sale of oysters, including prescribing the times, places, conditions, and means and manner of taking oysters.

        The proposed amendment affects Parks and Wildlife Code, Chapter 76.

6. Rule Text.

        §58.21. Taking or Attempting to Take Oysters from Public Oyster Beds: General Rules.

                 (a) — (b) (No change.)

                 (c) Area Closures.

                         (1) (No change.)

                         (2) No person may take or attempt to take oysters within an area described in this paragraph. The provisions of subparagraphs (A)(i) –(ii), (B), and (C)[(A) and (B)] of this paragraph cease effect on November 1, 2021. The provisions of subparagraphs (A) (iii) – (vii), (D) and (E) of this paragraph cease effect on November 1, 2022.

                         (A) Galveston Bay.

                                  (i) (No change)

                                  (ii) Pasadena Reef[South Redfish Reef]. The area within the boundaries of a line beginning at 29° 28’ 21.1"N, 94° 49’ 17.3"W (29.472517°N, -94.821472°W; corner marker buoy A); thence, to 29° 28’ 08.3"N, 94° 49’ 00.3"W (29.468971°N, -94.816744°W; corner marker buoy B); thence to 29° 27’ 58.9"N, 94° 49’ 09.7"W (29.466359°N, -94.81935°W; corner marker buoy C); thence to 29° 28’ 12.0"N, 94° 49’ 26.5"W (29.469989N, -94.824025°W; corner marker buoy D); and thence and back to corner marker buoy A.

                         (iii) Pepper Grove Reef. The area within the boundaries of a line beginning at 29° 29’ 14.7"N, 94° 40’ 01.0"W (29.487421°N, -94.666944°W; corner marker buoy A); thence, to 29° 29’ 14.8"N, 94° 39’ 52.3"W (29.48745°N, -94.664525°W; corner marker buoy B); thence to 29° 29’ 08.1"N, 94° 39’ 52.2"W (29.485596°N, -94.664497°W; corner marker buoy C); thence to 29° 29’ 08.0"N, 94° 40’ 00.9"W (29.485567°N, -94.666915°W; corner marker buoy D); and thence back to corner marker buoy A. 

                         (iv) Resignation Reef. The area within the boundaries of a line beginning at 29° 28’ 54.3"N, 94° 52’ 23.6"W (29.481741°N, -94.873234°W; corner marker buoy A); thence, to 29° 28’ 49.3"N, 94° 52’ 35.4"W (29.480370°N, -94.876513°W; corner marker buoy B); thence to 29° 28’ 39.5"N, 94° 52’ 27.5"W (29.477627°N, -94.874316°W; corner marker buoy C); thence to 29° 28’ 47.7"N, 94° 52’ 18.1"W (29.479921°N, -94.871687°W; corner marker buoy D); and thence back to corner marker buoy A.

                                  (v) Trinity Sanctuary Reef. The area within the boundaries of a line beginning at 29° 38’ 26.2"N, 94° 51’ 53.1"W (29.640616°N, -94.864753°W; corner marker buoy A); thence, to 29° 38’ 22.9"N, 94° 51’ 48.7"W (29.639701°N, -94.863539°W; corner marker buoy B); thence to 29° 38’ 17.9"N, 94° 51’ 49.8"W (29.638304°N, -94.863857°W; corner marker buoy C); thence to 29° 38’ 13.2"N, 94° 51’ 50.1"W (29.636994°N, -94.863926°W; corner marker buoy D); thence to 29° 38’ 10.1"N, 94° 51’ 53.2"W (29.636131°N, -94.864777°W; corner marker buoy E); thence to 29° 38’ 17.1"N, 94° 52’ 01.3"W (29.638092°N, -94.867041°W; corner marker buoy F); and thence back to corner marker buoy A.   

                         (vi) Trinity Harvestable Reef 1. The area within the boundaries of a line beginning at 29° 38’ 56.2"N, 94° 51’ 34.4"W (29.648936°N, -94.859552°W; corner marker buoy A); thence, to 29° 38’ 58.8"N, 94° 51’ 29.5"W (29.649673°N, -94.858202°W; corner marker buoy B); thence to 29° 38’ 55.4"N, 94° 51’ 27.1"W (29.648733°N, -94.857531°W; corner marker buoy C); thence to 29° 38’ 56.7"N, 94° 51’ 24.8"W (29.649075°N, -94.856906°W; corner marker buoy D); thence to 29° 38’ 50.5"N, 94° 51’ 20.5"W (29.647369°N, -94.855690°W; corner marker buoy E); thence to 29° 38’ 46.8"N, 94° 51’ 27.7"W (29.646345°N, -94.857704°W; corner marker buoy F); and thence back to corner marker buoy A.

                                  (vii) Trinity Harvestable Reef 2. The area within the boundaries of a line beginning at 29° 36’ 47.0"N, 94° 52’ 23.7"W (29.613063°N, -94.873269°W; corner marker buoy A); thence, to 29° 36’ 37.2"N, 94° 52’ 22.9"W (29.610327°N, -94.873046°W; corner marker buoy B); thence to 29° 36’ 36.7"N, 94° 52’ 31.1"W (29.610187°N, -94.875306°W; corner marker buoy C); thence to 29° 36’ 46.5"N, 94° 52’ 31.9"W (29.612924°N, -94.875529°W; corner marker buoy D); and thence back to corner marker buoy A.           

                 (B) – (C) (No Change.)

                         (D) Aransas Bay- Grass Island Reef.  The area within the boundaries of a line beginning at 28° 06’ 17.9"N, 97° 00’ 25.6"W (28.104990°N, -97.007128°W; corner marker buoy A); thence, to 28° 06’ 06.1"N, 97° 00’ 12.7"W (28.101691°N, -97.003527°W; corner marker buoy B); thence to 28° 06’ 20.45"N, 96° 59’ 55.9"W (28.105682°N, -96.998876°W; corner marker buoy C); thence to 28° 06’ 32.3"N, 97° 00’ 08.9"W (28.108981°N, -97.002476°W; corner marker buoy D); and thence back to corner marker buoy A.

                         (E) [(D)] Christmas Bay, Brazoria County.

                         (F) [(E)] Carancahua Bay, Calhoun and Matagorda County.

                         (G) [(F)] Powderhorn Lake, Calhoun County.

                         (H) [(G)] Hynes Bay, Refugio County.

                         (I) [(H)] St. Charles Bay, Aransas County.

                         (J) [(I)] South Bay, Cameron County.

                         (K) [(J)] Areas along all shorelines extending 300 feet from the water’s edge, including all oysters (whether submerged or not) landward of this 300-foot line.

        The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency’s legal authority to adopt.

        Issued in Austin, Texas, on


Work Session Item No. 9
Presenter: Monica McGarrity

Work Session
Proposed Amendments to the Exotic Harmful or Potentially Harmful Fish, Shellfish, and Aquatic Plants and Fee Rules
Request Permission to Publish Proposed Changes in the Texas Register
August 26, 2020

I.      Executive Summary: With this item, the staff seeks permission to publish proposed amendments to rules governingexotic harmful or potentially harmful fish, shellfish, and aquatic plants and the related permit fee structure in the Texas Register. The proposed amendments would function collectively to address changes needed in regulation of exotic aquatic species, including:

II.     Discussion: Texas Parks and Wildlife Code chapter 66 delegates the authority to publish a list of harmful or potentially harmful exotic fish, shellfish, and aquatic plants to the Texas Parks and Wildlife Commission (Commission) and to regulate the importation, possession, sale, and introduction of such species into public waters. Invasive exotic species pose significant threats to Texas ecosystems and recreational opportunities, can cause economic damage, and are difficult and costly (if not impossible) to manage following invasion. Regulations play a pivotal role in preventing not only the introduction of new species and diseases that could impact native species but also the spread of highly problematic species, such as giant salvinia and zebra mussels, that have already invaded the state. For commercially important exotic species such as Pacific white shrimp, tilapia, and triploid grass carp, regulatory provisions provide economic opportunities while protecting against escape of these species and associated diseases into public waters. The proposed amendments would enhance rule organization and address issues and concerns that have arisen in the regulation of exotic aquatic species in recent years, especially related to economic opportunities and problems caused by exotic species infestations.

Attachments – 2

  1. Exhibit A – Proposed Exotic Harmful or Potentially Harmful Fish, Shellfish, and Aquatic Plants Rules
  2. Exhibit B – Proposed Exotic Harmful or Potentially Harmful Fish, Shellfish, and Aquatic Plants Permit Fee Rules

Work Session Item No. 9
Exhibit A

HARMFUL OR POTENTIALLY HARMFUL FISH, SHELLFISH AND AQUATIC PLANTS

PROPOSAL PREAMBLE

1. Introduction.

        The Texas Parks and Wildlife Department (the department) proposes the repeal of §§57.112-57.137, an amendment to §57.111, and new §§57.112-57.128, concerning Harmful or Potentially Harmful Fish, Shellfish and Aquatic Plants. The repeals, amendment and new sections are intended to reorganize to enhance readability by making location of the applicable rules more straightforward, updating current rules, and providing additional flexibility where possible to the regulated community while providing for the protection of native organisms and ecosystem from the potential threats posed by harmful and potentially harmful exotic species.

        The proposed amendment of §57.111, concerning Definitions, consists of several actions.

        The proposed amendment would eliminate the definitions of “aquaculturist or fish farmer.” The terms are not used in the proposed new rules.

        The proposed amendment also would eliminate the definitions of “harmful or potentially harmful exotic fish,” “harmful or potentially harmful exotic shellfish,” and “harmful or potentially harmful exotic plants.” The current definitions are not actual definitions, but lists of organisms to which the provisions of the subchapter apply and more properly belong in the body of the rules rather than the section devoted to definitions.

        The proposed amendment also would eliminate the definition of “immediately” because the department has determined that the common and ordinary meaning of the word is sufficient for the purposes of the proposed new rules.

        The proposed amendment also would eliminate the definition of “operator” because the word appears only once in the proposed new rules and the department has determined that the common and ordinary meaning of the word is sufficient.

        The proposed amendment also would eliminate the definition of “place of business” because the definition isn’t useful in the context of the proposed new rules.

        The proposed amendment also would eliminate the definition of “private facility.” The term is not used in the proposed new rules.

        Similarly, the proposed amendment also would eliminate the definition of “private facility effluent” because it is not used in the proposed new rules.

        The proposed amendment also would eliminate the definition of “public aquarium.” The proposed new rules would not require facilities applying for controlled exotic species permits for zoological display to have AZA accreditation to be eligible for a permit.

        The proposed amendment would add new paragraph (1) to define “active partner” as “a governmental, quasi-governmental, or non-governmental organization or other entity that is currently engaged in department-coordinated efforts to monitor and/or manage controlled exotic species in Texas authorized by a letter of approval from the Director of the Inland Fisheries Division or Coastal Fisheries Division (or their designee) of the Texas Parks and Wildlife Department, as appropriate.” This definition is needed to clearly specify eligibility for such approval with regards to provisions in proposed new §57.113(c) and (m) that are intended to facilitate partnerships that support the mission of the department.

        The proposed amendment would add new paragraph (2) to define “agent” as “a person designated to conduct activities on behalf of any person or permit holder who is authorized by a controlled exotic species permit or other provision of this subchapter to conduct those activities. For the purposes of this subchapter, the term “permit holder” includes their agent. The definition is necessary to clarify the meaning of this term and specify that authorizations under the proposed new rules are also applicable to an agent.

        The proposed amendment would redefine “aquaculture” to reference, rather than repeat, the meaning of this term as defined in the Agriculture Code (§§134.001(4)).

        The proposed amendment would add new paragraph (5) to define “biological control agent” as “a natural enemy or predator of a plant or animal that can be used to control the growth, spread, or deleterious impact of that plant or animal.” This definition is needed to clarify the intent of proposed new §57.113(d), which authorizes the production and sale of biological control agents under a controlled exotic species permit to support efforts to manage controlled exotic species on public and private waters.

        The proposed amendment would amend the current definition of “Clinical Analysis Checklist” to clarify that the referenced document applies to shrimp.

        The proposed amendment would add new paragraph (8) to define “common carrier” as “a person or entity that is in the business of shipping goods or products and not a party to a transaction under a permit issued under this subchapter.” Current rules (§57.115(3)) stipulate that such transport is limited to a “commercial shipper.” This definition and concomitant change in regulatory terminology from “commercial shipper” to the widely recognized, broader term “common carrier” is needed to ensure that department rules do not interfere with shipping business that transport controlled exotic species.

        The proposed amendment would add new paragraph (9) to define “controlled exotic species” as “any species listed in §57.112 of this title (relating to Exotic Harmful or Potentially Harmful Fish, Shellfish, and Aquatic Plants),” for reasons discussed earlier in this preamble.

        The proposed amendment would add new paragraph (10) to define “Controlled Exotic Species Permit” as “any permit issued under this subchapter that authorizes the import, propagation, possession, purchase, sale, and/or transport of a controlled exotic species,” which is necessary to clarify the ambit of the meaning of that term.

        The proposed amendment would add new paragraph (11) to define “conveyance” as “any means of transporting persons, goods, or equipment on the water,” which is necessary to provide an unambiguous meaning for the term as it is used in the subchapter.

        The proposed amendment would eliminate the definition of “gutted” because the common and ordinary meaning of the word is sufficient for the purposes of the subchapter.

        The proposed amendment would add new paragraph (16) to define “disease inspector” as

”an employee of the Texas Parks and Wildlife Department who is trained to perform clinical analysis of shrimp disease.” The current definition of “certified inspector” refers to “a department employee who has completed a department-approved course in clinical analysis of shellfish.” The department has determined that a more generic definition is necessary to enable the department to task additional human resources to inspection duties in order to expedite permit issuance and monitoring activities while ensuring that such personnel are properly trained.

        The proposed amendment would add new paragraph (17) to define “disease specialist” as “a third-party person approved by the department that possesses the education and experience to identify shellfish disease, such as a degree in veterinary medicine or a Ph.D. specializing in shellfish disease.” The proposed new definition is needed to expand the limited pool of qualified shrimp disease specialists available to conduct analyses of exotic shrimp aquaculture required by the proposed new rules.

        The proposed amendment would add new paragraph (18) to define “dock or pier” as “a structure built over and/or floating on water that is used to provide access to water and/or for the mooring of boats.” This definition is necessary to provide a precise explanation of the meaning of the term as it is employed in proposed new §57.111(e) and (j).

        The amendment would add new paragraph (19) to define “emergency” as “a situation or event beyond the control of any person, including but not limited to a natural disaster, power outage, or fire.” The proposed new definition is needed to create a specialized meaning of the term for purposes of identifying specific situations that would trigger actions required by the proposed new rules to be performed by a permit holder.

        The proposed amendment would add new paragraph (20) to rename “harmful or potentially harmful exotic species exclusion zone” as “exotic shrimp exclusion zone,” which is necessary to reflect the fact that, as used in the proposed new rules, the term would only apply to exotic shrimp.

        The proposed amendment would alter the current definition of “exotic species” to be more technically accurate. The current definition refers to organisms “not normally found in the waters of the state,” which is scientifically inaccurate. Therefore, the proposed amendment would be altered to refer to “any aquatic plant, fish, or shellfish nonindigenous to this state.”

        The proposed amendment would add new paragraph (22) to replace the term “aquaculture facility” with the term ‘facility’ and define that term as ‘infrastructure, including drainage structures, at a location where controlled exotic species are possessed, propagated, cultured, or sold under a controlled exotic species permit, excluding private waters permitted for triploid grass carp stocking in accordance with §57.116 of this title (relating to Special Provisions – Triploid Grass Carp).” The amendment would clarify that ditches not used for drainage of aquaculture ponds or tanks are not considered part of a permitted facility, that transport is not an activity that takes place at the facility, and that private ponds permitted for triploid grass carp stocking are not subject to the facility requirements of the proposed new rules.

        The proposed amendment would add new paragraph (23) to replace the term “aquaculture complex” with the term “facility complex” and define that term as “a group of two or more facilities located at a common site and sharing water diversion or drainage structures.” The intent of the new definition is to remove an ambiguity that could be interpreted to mean that each facility within a complex must be separately owned.

        The proposed amendment would add new paragraph (24) to define “gill-cutting” as “cutting through the base of the gills on the underside of the fish.” The proposed new definition is necessary to provide an explicit meaning for an additional method of killing controlled exotic fish that would be allowable under the proposed new rules.

        The proposed amendment would alter the definitions of “nauplius” and “post-larva” to include the plurals of those term as well as a reference to the phylum to which the definition applies, which is necessary for purposes of precision.

        The proposed amendment would eliminate the definition of “private facility effluent” because the proposed rules would eliminate the term “private facility.”

        The proposed amendment would redefine “private pond” as “a pond or lake capable of holding controlled exotic species of tilapia and/or triploid grass carp in confinement wholly within private land for non-commercial purposes.” The proposed amendment is necessary to clarify the species to which the term applies and that ponds used for the purpose of commercial aquaculture are not private ponds for the purposes of the proposed new rules.

        The proposed amendment also would change the definition of “public water” to “public waters” and add a citation to the statutory definition for that term.

        The proposed amendment also would alter the definition for “quarantine condition” to more precisely communicate that the term means the physical separation of affected stock from other stock, fish or shellfish, or water of the state, which is necessary to prevent misunderstandings that could lead to adverse ecological impacts.

        The proposed amendment would add new paragraph (30) to define “recirculating aquaculture system” as “a system for culturing fish that treats or reuses all, or a major portion of the water and is designed for no direct offsite discharge of water.” The new definition is needed because the proposed new rules would allow persons to hold controlled exotic species of tilapia without a permit and the department believes that such operations should be reasonably biosecure.

        The proposed amendment would add new paragraph (32) to define “tilapia and triploid Grass Carp regulatory zones” as “geographic conservation priority zones identified by the department where special provisions apply” and lists “conservation zone” and “stocking zone” designations for each county in Texas. This definition is needed for the purposes of ease of understanding, compliance with, and enforcement of the proposed new rules.

        The proposed amendment would revise current §57.111(32) to refer only to “Triploid Grass Carp;” definition of triploid black carp is no longer necessary under the proposed new rules.

        The proposed amendment also would revise the current definitions of “waste” and “water in the state” to make legal citations consistent with prevailing conventions.

        Finally, the proposed amendment would alter the definition of “wastewater treatment facility” to clarify that the term includes “associated infrastructure, including drainage structures,” in order to eliminate any ambiguity as to infrastructure subject to regulation under the subchapter.

        Proposed new §57.112, concerning Exotic Harmful or Potentially Harmful Fish, Shellfish, and Aquatic Plants, would identify the species of fish, shellfish, and aquatic plants to which the proposed new rules apply and provide for the applicability of the proposed new rules to organisms in instances where taxonomical nomenclature for a species has changed as a result of scientific consensus.

        Proposed new §57.112(a) would provide that, with respect to any given species, the proposed new rules would apply to any hybrid, subspecies, eggs, juveniles, seeds, or reproductive or regenerative parts of that species, which is necessary to specifically delineate the applicability of the proposed new rules to organisms in their various life stages and hybrids. Similarly, proposed new subsection (b) would provide that scientific reclassification or change in nomenclature of taxa at any level in taxonomic hierarchy would not, in and of itself, result in removal from the list of exotic harmful or potentially harmful species in this section. From time to time, scientific consensus regarding biological classification of organisms results in reclassification based on new information. Because the process of amending the list of species in the rules requires commission rule action under the Administrative Procedure Act, it is time consuming. The department believes it should be clear that rules apply to specific organisms, regardless of changes to the taxonomic identity of that organism. Finally, proposed new subsection (c) would consist of the fish, shellfish, and aquatic plants currently designated by the department as harmful or potentially harmful, which are being relocated from §57.111, concerning Definitions, for reasons discussed previously in this preamble, with the addition of new species as follows.

        The department proposes to designate the Stone Moroko (Pseudorasbora parva) as a harmful or potentially harmful exotic fish. The Stone Moroko is currently listed as an injurious wildlife species under the federal Lacey Act. This species is known to prey upon native fishes and has been known to contribute to rapid declines and even localized extinctions of some minnows as well as serving as a fish disease and parasite vector. Although this species has not yet been documented in the U.S., it is considered to have potential to be introduced into the U.S. as an aquaculture or ornamental fish shipment contaminant—an introduction pathway documented elsewhere—and then spread to new areas. If introduced in Texas, climate match analysis suggests this species has a high potential for survival in much of the state (i.e., climate match ~7 out of 10).

        The department also proposed to designate the Amur sleeper (Perccottus glenii) as a harmful or potentially harmful exotic fish. The Amur sleeper is currently listed as an injurious wildlife species under the Lacey Act. This species is a fast-growing, voracious predator with high reproductive potential. It is known to prey upon many aquatic species and contribute to declines and displacement of amphibians and fishes — particularly in small water bodies where it may replace them altogether. Although this species has not yet been documented in the U.S., it is considered highly likely to be accidentally transported internationally. If introduced in Texas, climate match analysis suggests this species has an intermediate potential for survival in areas of the state (i.e., climate match ~5 out of 10), primarily in lakes, and it is highly adaptable to new environments.

        The department also proposes to designate the European perch (also called Redfin; Perca fluviatilis) as a ‘harmful or potentially harmful exotic fish.’ The European perch is currently listed as an injurious wildlife species under the Lacey Act. This species is a habitat generalist, thriving in habitats from streams to lakes and brackish waters and can survive a wide range of physicochemical conditions (e.g., oxygen, salinity, temperature). It poses a significant threat as a known host for three fish diseases reportable to the World Organisation for Animal Health, including epizootic haematopoietic necrosis virus, which can decimate native fish populations. This species has not yet been documented in the U.S., and its potential to be introduced into the U.S. is not well-known. It has been intentionally introduced in numerous other countries—legally or illegally—as a sport fish with widespread documentation of detrimental impacts on native fisheries. If introduced in Texas, climate match analysis suggests this species has a high potential for survival in much of the state (i.e., climate match 6-7 out of 10).

        The department proposes to designate the Wels catfish (Silurus glanis) as a ‘harmful or potentially harmful exotic fish.’ This species is currently listed as an injurious wildlife species under the Lacey Act. This species is a voracious predator that can grow to over 16 feet in length and poses a significant risk to native species, particularly bottom-dwelling species including other catfishes and mussels. It poses a significant threat as a known host for a fish disease reportable to the World Organisation for Animal Health, spring viraemia of carp—which would affect not only carp but also numerous other fish species including native catfish. Although this species has not yet been documented in the U.S., the Wels catfish has become somewhat notorious as a “monster fish” and is considered to have potential to be introduced into the U.S. illegally via the underground pet trade. Elsewhere outside the U.S., this species has been intentionally introduced and spread as a sport fish—legally and illegally. If introduced in Texas, climate match analysis suggests this species has a moderate potential for survival in much of the state (i.e., climate match 5-6 out of 10).

        The department proposes to designate mud snails of the family Hydrobiidae as ‘harmful or potentially harmful exotic shellfish.’ This family includes highly invasive species such as the New Zealand mudsnail, Potamopyrgus antipodarum. This species is known to attain extremely high-density populations in excess of 300,000 snails per square meter and has potential to foul and impact facilities drawing water from infested lakes. This species is currently found in most western states—including nearby northern New Mexico and Colorado—as well as the Great Lakes region and several northeastern states. Potential for spread into Texas from adjacent states is high, particularly on boats, waders, and other equipment used in infested waters. If introduced in Texas, climate match analysis suggests this species has a moderately high potential for survival in much of the state (i.e., climate match 6-7 out of 10) and could become established and spread within the state.

        The department proposes to designate the golden mussel, Limnoperna fortunei, as a ‘harmful or potentially harmful exotic shellfish.’ The negative impacts of this species are highly similar to those of the invasive dreissenid mussels—the zebra mussel and quagga mussel. These invasive mussels infest and damage water supply, hydroelectric, and other infrastructure, alter ecosystem food webs, and cover lake beaches and other colonized hard surfaces with razor-sharp shells. Although this species has not yet been documented in the U.S., it is considered highly likely to be introduced into the U.S. via ballast water of large, oceangoing ships—the same introduction pathway that is believed to be responsible for dreissenids invasions. If introduced in Texas, climate match analysis suggests this species has a high potential for survival in much of the state (i.e., climate match 6 – 7 out of 10) although, like dreissenids, calcium availability would reduce the likelihood of invasion of East Texas lakes. Populations have been documented elsewhere in waters with temperatures of 95 degrees Fahrenheit, suggesting that this species has greater potential than dreissenids to survive in power plant cooling lakes and impact these facilities.

        The department proposes to designate Crested Floating Heart, Nymphoides cristata, and Yellow Floating Heart, N. peltata, as ‘harmful or potentially harmful exotic plants.’ Crested Floating Heart was first found in Texas in 2008 and has since formed infestations in Caddo Lake, Lake Conroe, Lake Athens, and the Lower Neches Valley Authority canals. Yellow Floating Heart was first detected in Texas in Moss Lake in 2010 and is also found on the Louisiana side of Toledo Bend Reservoir where there is high potential for eventual spread into Texas waters. These exotic floating hearts are rooted in the lake substrate with floating leaves and can form large, dense infestations that impede access for boating and other aquatic recreation. Management of these species is especially difficult due to their growth habit and, as with any invasive aquatic plant, can be costly. Regulation of these species as ‘harmful or potentially harmful’ is needed to prevent transport and introduction into new water bodies, creating new infestations.

        Proposed new §57.113, concerning General Provisions and Exceptions, would set forth numerous provisions generally applicable to the proposed new rules and enumerate specific exceptions to the proposed new rules.

        Proposed new §57.113(a) would establish that nothing in the subchapter is to be construed to relieve any person of the obligation to comply with any applicable provision of local, state, or federal law. Other governmental entities have various legal authorities that impinge on the department’s authority to regulate the possession and movement of certain fish, shellfish, and aquatic plants. The department wishes to be abundantly clear that a rehabilitation permit does not obviate any person’s legal obligation to comply with such laws, when applicable.

        Proposed new §57.113(b) would recapitulate the statutory provisions of Parks and Wildlife Code, §66.007, which prohibits the importation, possession, sale, or placement into the public water of this state of exotic harmful or potentially harmful fish or shellfish except as authorized by rule or permit issued by the department, and §66.0071, which prohibits the importation, possession, sale, or placement into the public water of this state of aquatic plants designated by the department as harmful or potential harmful except as authorized by rule or permit issued by the department. The proposed new subsection would further prohibit the export, purchase, propagation, and culture of species of fish, shellfish, and aquatic plants designated by the department as harmful or potentially harmful species, which is necessary to clearly describe the types of activities for which a permit is required. The proposed new subsection also would prohibit the take or possession of a live grass carp from public water where grass carp have been introduced under a permit issued by the department, unless the department has specifically authorized removal or the permit is no longer in effect, which is a provision of current rule §57.112(b)(2).

        Proposed new §57.113(c) would establish the eligibility requirements and procedures for seeking ‘active partner’ status. Under the proposed new rules, active partner status would exempt an entity engaged in department-coordinated efforts to monitor and/or manage controlled exotic species from the requirement to obtain a controlled exotic species permit to conduct the activity. The entity requesting active partner status would be required to submit a letter of request to the department that describes the proposed engagement in department-coordinated efforts to monitor and/or manage controlled exotic species in Texas and measures to be taken to prevent introduction of controlled exotic species into public water. Active partner status would be granted by means of a letter of approval from the department. The provision is necessary because the department seeks to engage with other governmental, quasi-governmental, or non-governmental organization or entity to assist in department efforts to curb controlled exotic species.

        Proposed new §57.113(d) would establish that an employee of the department in the performance of official duties is exempt from the permit requirements of this subchapter.  Obviously, requiring a department employee to obtain a permit while engaged in the duties of the department would be counterproductive and inefficient.

        Proposed new §57.113(e) and (f) would establish the conditions under which persons would be permitted to possess prohibited exotic species without a permit, retaining the provisions of current §57.113(b) – (d) and providing additional stipulations for fish or shellfish other than mussels or oysters to be possessed without a permit if they have been gill-cut, killed using another means, frozen, or packaged on ice, in addition to the current exception for beheaded or gutted individuals.

        Proposed new §57.113(g) would stipulate that no person may possess or transport live or dead controlled exotic species of mussels that are attached to any vessel, conveyance, or dock or pier and provide an exception for vessels that are travelling directly to a service provider for mussel removal or maintenance or repair following notification of the department. Zebra mussels and quagga mussels (Dreissena bugensis), both of which are currently listed as harmful or potentially harmful exotic species, are considered to be among the most problematic invasive species in the world, and zebra mussels have already been proven to be highly damaging in Texas. Preventing the transport of invasive mussels attached to boats is paramount for preventing the spread of zebra mussels within the state and to other states, and for preventing the introduction of quagga mussels into this state. To minimize this risk, invasive mussels attached to boats must be killed; however the viability of those mussels cannot be assessed rapidly with any certainty by laypersons. The proposed new subsection would create an exception for the possession and transport of mussels attached to or contained within a vessel in situations where the vessel must be transported to a service provider for removal of mussels, repair, or maintenance, provided the department is notified. To ensure the risks of transport can be addressed and coordinated by the department if necessary, the proposed new subsection would stipulate that the notification include date of transport, contact information for the person or entity transporting the vessel, vessel registration number, water body of origin to determine if it is infested with mussels, service provider location and contact information, and the water body where the vessel will return after service to assess risk of new introductions resulting from transport.

        Proposed new §57.113(h) would provide a qualified exception to permit requirements for licensed retail or wholesale fish dealers. Under current §57.113(k), a licensed retail or wholesale fish dealer is not required to possess a permit issued under the subchapter for certain species unless the retail or wholesale dealer is engaged in propagation of the species, provided the fish or shellfish have been gutted or beheaded. The proposed new subsection would clarifiy that the fish dealer must obtain these species from a permit holder and provide additional methods that fish may be rendered inert. With respect to live Pacific blue shrimp (Litopenaeus stylirostris) or Pacific white shrimp (L. vannamei), the proposed new subsection would impose the same clarification that the fish dealer must obtain these species from a permit holder.

        Proposed new §57.113(i) would recapitulate that the holder of a controlled exotic species permit may not place into public water, possess, import, export, sell, purchase, transport, propagate, or culture controlled exotic species unless authorized by the specific conditions of the permit. The proposed new provision repeats for purposes of emphasis the prohibited acts articulated by Parks and Wildlife Code, §66.007 that are restated and elaborated upon in the proposed new rules.

         Proposed new §57.113(j) would create an exception to permit requirements for landowners (and their agents) who remove exotic plant species, zebra mussels, and applesnails of the genus Pomacea, provided the landowner or agent complies with the specific conditions set forth for removal and transport. Invasive exotic plants frequently impede water access for lakefront landowners — particularly floating species such as giant salvinia and water hyacinth (Eichhornia crassipes), which can continually reinvade cleared areas around shorelines and docks. Under current rules, a permit is required to possess these and other controlled exotic plants even for the purposes of disposal in addition to obtaining department approval of a nuisance aquatic vegetation treatment proposal. Invasive zebra mussels are also problematic, clogging and damaging water infrastructure and attaching their razor-sharp shells to shorelines and docks, posing a human health hazard. Under current rules, there are no provisions allowing unpermitted persons to possess and/or transport controlled exotic species of mussels removed from personal property, live or dead, for the purpose of disposal. Invasive applesnails are a common invader of both public water bodies and small private lakes and can decimate aquatic vegetation that provides important habitat for fish. Under current rules, there are no provisions allowing possession of the prohibited species of applesnails, live or dead, for the purposes of removal/disposal for population management. The proposed new subsection would allow the owner or manager of a property or their agent, except as provided by proposed new §57.113(k), to without a permit possess and transport prohibited mussels of the genus Dreissena and prohibited applesnails of the genus Pomacea for the purpose of disposal provided that they are securely contained in black plastic bags (which accumulate heat that kills the organisms) prior to disposal. Inclusion of all species of Dreissena proactively provides for the potential need for removal and transport for disposal of invasive quagga mussels should they be introduced in Texas. Inclusion of all prohibited species of applesnails of the genus Pomacea is necessary due to difficulty distinguishing between some species without genetic analysis; however, it is believed that only P. maculata is currently found in Texas. For controlled exotic plants, the exception created by the proposed new subsection would also allow the option of drying fully prior to disposal in lieu of containment in bags.

        Proposed new §57.113(k) would require a person who in exchange for money or anything of value operates a mechanical plant harvester or otherwise physically removes controlled exotic species of plants from public water, to include persons who possess and transport controlled exotic plants following such removal operations, to possess a controlled exotic species permit. Under current rule, an exotic species permit is required to perform these activities; however, the proposed new subsection would explicitly require a permit to be obtained by persons who do so for remuneration. The use of mechanical harvesters and other large-scale removal methods at a commercial scale could result in possession and transport of quantities of exotic plants in volumes exceeding those contemplated by the exception for permit requirement contained in proposed new §57.113(j). Such volumes pose a greater biosecurity risk. By continuing to require a controlled exotic species permit for commercial activities, the department seeks to ensure that they are conducted in a verifiably biosecure manner.

        Proposed new §57.113(l) would create an exception for the possession and transport of controlled exotic species for governmental or quasi-governmental agencies; operators of power generation, water control, or water supply facilities; private water intakes; entities removing garbage from public water bodies; or contractors working on their behalf performing standard operations, maintenance, or testing, provided the activities are in compliance with best management practices published by the department. The department recognizes that the enumerated entities may encounter the need to transport controlled exotic species for disposal under certain circumstances. Invasive exotic zebra mussels and some plants foul and clog intakes for facilities using or controlling raw surface water. Current rules do not address the periodic need for removal and disposal of these species. Zebra mussels attach to virtually any hard surface, including floating and submerged debris, and possession of such mussels is not explicitly addressed under current rule, which is problematic when mussels are attached to objects removed from public water bodies during river and lake clean-up events. The proposed new subsection would establish an exception to address such situations. The best management practices will be developed and continually adapted as needed to provide practical guidelines that seek to minimize transport of viable organisms and thereby reduce biological risk.

        Proposed new §57.113(m) would provide an exception to permit requirements for persons who purchase, possess, or transport controlled exotic species of plants as hosts for biological control agents for the purpose of introduction for management of nuisance aquatic vegetation, provided that the identity of the plant species to be managed is confirmed by the department and the host plants and biological control organisms are obtained from the department, a biological control facility permitted under this subchapter, or an active partner, and the activities are in compliance with rules governing transport documentation and introduction of aquatic plants into public water, if applicable. The proposed new subsection is intended to facilitate expansion of the use of biological control organisms to aid in management of controlled exotic plants such as Giant Salvinia and Alligatorweed (Alternanthera philoxeroides). Introduction of biological control organisms often requires possession and transport of a small quantity of the prohibited host plant.

        Proposed new §57.113(n) would create an exception to permit requirements for possession of specimens of controlled exotic mussels or plants provided they have been preserved using methods specified by rule for rendering the organisms nonviable. The current rules do not specifically provide for the possession of specimens for educational purposes at nature centers, school classrooms, or museum collections. The proposed new subsection would provide enhanced educational opportunities that could contribute to increased awareness of invasive species issues in Texas.

        Proposed new §57.113(o) would require any person in possession of controlled exotic species to provide or allow the department take samples of any controlled exotic species for purposes of taxonomic or genetic identification and analysis by the department; furnish any documentation necessary to confirm controlled exotic species identity, the source of controlled exotic species, and eligibility to possess controlled species; make available for inspection during normal business hours any records required by the subchapter as well as any retention location, facility, private pond, recirculating aquaculture system, or transportation vehicle or trailer used to conduct activities authorized under this subchapter; and demonstrate that activities are conducted in compliance with the requirements of the subchapter and in such a way as to prevent escape, release, or discharge of controlled exotic species. Under current rules (current §§57.119(a), (b), and (d), 57.131(c), and 57.132(b)), provisions governing inspections, reporting, and recordkeeping apply only to permit holders. For purposes of enforcement of the various proposed new provisions of this section that create exceptions to permit requirements, the proposed new subsection would extend the responsibilities enumerated in those sections to all persons in possession of controlled exotic species.

        Proposed new §57.113(p) would establish protocols for the disposition of controlled exotic species held by a person who is no longer legally permitted to be in possession of the controlled exotic species because of violations, permit renewal refusal, or cessation/discontinuation of permitted or otherwise authorized activities for any other reason. In the case of elective discontinuation of permitted operations, current rules (§57.119(c)) stipulate that all remaining inventory of the permitted species be lawfully sold, transferred, or destroyed. However, the current rules make no provisions for dealing with failure to comply with the rules or with unlawful possession, leaving the potential for persons to be in possession of large quantities of controlled exotic species (e.g., for aquaculture purposes). Proposed new §57.113(p) would establish a course of action for dealing with unlawful possession, failure to comply with rules pertaining to elective discontinuation of operation, and circumstances under which a permit holder is ordered to cease operation. Under the proposed new rules, the department could prescribe, on a case by case basis, a disposition protocol for destruction, disposal, or transfer of controlled exotic species. The proposed new subsection would provide that if the disposition protocol is not implemented within 14 days of notification by the department, the department could implement a prescribed disposition protocol. Furthermore, in the event that a disposition protocol is implemented by the department, the proposed new subsection would mandate financial responsibility for all costs associated with the destruction, disposal, or transfer of controlled exotic species held in the facility be borne by the affected person. The proposed new provisions are necessary to ensure that persons who are in unlawful possession of controlled exotic species and demonstrate an inability to dispose of such species in lawful compliance with department orders bear the costs of disposal rather than having the people of the state bear such costs.

        Proposed new §57.114, concerning Controlled Exotic Species Permits, would enumerate the various types of controlled exotic species permits governed under the subchapter. Proposed new §57.114(a) would provide for the issuance of a controlled exotic species permit for the culture, transport, and sale of water spinach (Ipomoea aquatica) — an exotic aquatic plant that is sold for human consumption.

        Proposed new §57.114(b) would provide for the issuance of controlled exotic species permits for the commercial aquaculture of triploid grass carp; blue tilapia (Oreochromis aureus), Mozambique tilapia (O. mossambicus), Nile tilapia (O. niloticus), Wami tilapia (O. hornorum), and hybrids; and Pacific white shrimp (Litopenaeus vannamei) or Pacific blue shrimp (L. stylirostris), and would stipulate that regulated activities must be performed by the permittee, an authorized person named on the permit, or a person supervised by an authorized person, which is necessary to ensure that all activities under a permit are conducted by someone lawfully liable for compliance with the provisions of the permit and the subchapter.

        Proposed new §57.114(c) would provide for the issuance of controlled exotic species permits for research that benefits indigenous species or ecosystems and/or provides insight on ecology, risks, impacts, or management approaches for controlled exotic species. Current rules provide that permits may be issued for department approved research programs (§57.113(a)(1)). The proposed new rule also would stipulate that sale of controlled exotic species held under a research permit is prohibited unless authorized in writing by the Director of the Coastal Fisheries Division or Inland Fisheries Division (or their designee), which is a refinement of the provisions of current §57.113(a).

        Proposed new §57.114(d) would provide for the issuance of a controlled exotic species permit for the propagation of controlled exotic species of plants for the purposes of production of biological control agents for management of controlled exotic species of plants. Biological control agents such as salvinia weevils (Cyrtobagous salviniae) play an important role in the integrated pest management strategy for achieving control of invasive exotic species such as Giant Salvinia in Texas lakes.

         Proposed new §57.114(e) would provide for issuance of controlled exotic species permits for zoological display, which is a provision of current §57.113.

        Proposed new §57.114(f) would provide for the issuance of a controlled exotic species for specific limited purposes.

        Proposed new §57.114(f)(1) would provide for the issuance of a controlled exotic species permit to persons other than commercial aquaculturists who sell triploid grass carp or tilapia. The proposed new provision would allow permit holders to sell live triploid grass carp or tilapia purchased from a commercial aquaculture facility permit holder or lawful out-of-state source as well as for lawful out-of-state suppliers to obtain a Texas permit and prohibit persons holding a permit issued under the proposed new paragraph from using the controlled exotic species for aquaculture or holding the controlled exotic species in a facility in Texas for more than 72 hours. The proposed new provision is necessary to provide a mechanism for persons engaged in the business of buying tilapia and triploid grass cap for resale and do not have a facility.

        Proposed new §57.114(f)(2) would provide for the issuance of controlled exotic species permits for introduction into public water or private water of live triploid grass carp, which is a provision of current §57.125, concerning Triploid Grass Carp Permit; Application, Fee.

        Proposed new §57.114(f)(3) would provide for the issuance of controlled exotic species permits for interstate transit of controlled exotic species, which is addressed in proposed new §57.121, concerning Transport of Live Controlled Exotic Species.

        Proposed new §57.114(f)(4) would provide for the issuance of controlled exotic species permits for the possession and disposal of controlled exotic plant species removed from public or private waters, the particulars of which are set forth in proposed new §57.113, concerning General Provisions and Exceptions.

        Proposed new §57.114(f)(5) would provide for the issuance of controlled exotic species permits for possession of controlled exotic species of plants for wastewater treatment by a wastewater treatment facility, the particulars of which are set forth in proposed new §57.113, the particulars of which are set forth in proposed new §57.113,concerning General Provisions and Exceptions.

        Proposed new §57.114(f)(6) would provide for the issuance of permits for the possession, transport, and disposal of controlled exotic species related to activities not otherwise authorized by the provisions of proposed new §57.113, concerning General Provisions and Exceptions, or proposed new §57.114, concerning Controlled Exotic Species Permits.

        Proposed new §57.115, concerning Special Provisions – Tilapia, would prescribe the provisions of the subchapter that would specifically apply to the possession of tilapia.

        Proposed new §57.115(a) would provide that no person may possess, import, export, sell, purchase, transport, propagate, or culture, or offer to import, export, sell, purchase, or transport tilapia unless the person is the holder of a valid controlled exotic species permit and is in compliance with the terms of the permit. The proposed new subsection is specific to tilapia, but recapitulates the provisions of Parks and Wildlife Code, §66.007 and the proposed new rules that the holder of a controlled exotic species permit may not place into public water, possess, import, export, sell, purchase, transport, propagate, or culture controlled exotic species unless authorized by the specific conditions of the permit, to include an offer to do any of those things.

        Proposed new §57.115(b) would require private ponds stocked with tilapia to be designed and maintained such that escape, release, or discharge of tilapia into public water is not likely to occur. The current rules do not address design or maintenance requirements for private ponds. The department believes that it is important to require private ponds to be designed and maintained in such a fashion as to minimize the danger of escapement of controlled exotic species held under a permit.

        Proposed new §57.115(c) would establish an exception to the provisions of the section for non-commercial aquaculture of four controlled exotic species of tilapia without a controlled exotic species permit. Under current rule §57.115(i), only one species of tilapia (Mozambique tilapia (Oreochromis mossambicus), may be possessed for non-commercial aquaculture without a permit. Home aquaponics has increased in popularity in recent years, and other species have become desirable, particularly for consumption. Under the proposed new subsection, no permit would be required to purchase, possess, transport, or propagate blue tilapia (O. aureus), Mozambique tilapia, Nile tilapia (O. niloticus), Wami tilapia (O. hornorum), and hybrids between these species for non-commercial aquaculture purposes. The proposed new provision would require tilapia to be purchased and transported in accordance with the provisions of the subchapter governing transport of live exotic species and the tilapia so held could not be sold, offered for sale, or exchanged for money or anything of value. Current rules (§57.115(i)) allow the purchase and transport of Mozambique tilapia without a permit, but the sale of such fish is prohibited without an exotic species or wholesale dealer permit. Under the proposed new subsection, tilapia would be required to be kept in a recirculating aquaculture system constructed such that escape, release, or discharge of tilapia into public water is not likely to occur. Additionally, the proposed new subsection would require all recirculating aquaculture systems to be constructed such that no discharge of wastewater or waste into or adjacent to water in the state is likely to occur, and that they be equipped with adequate security measures in place to prevent unauthorized removal of tilapia. Finally, the proposed new subsection would require all tilapia transferred to another person or disposed be killed in accordance with the provisions of proposed new §57.113(f). The department has determined that recirculating aquaculture systems operated in compliance with the proposed new provisions would pose minimal risk of accidentally introducing tilapia into public waters of the state.

        Proposed new §57.115(d) would prescribe the requirements for the stocking of controlled exotic species of tilapia in private ponds. The proposed new subsection is intended to minimize detrimental impacts of escapes on Texas’ Fish Species of Greatest Conservation Need, as identified in the Texas Conservation Action Plan. Under current §57.113(i), Mozambique tilapia may be stocked in private ponds without a site evaluation by the department; however, many ponds in Texas are creek impoundments capable of overflow during rains, which could result in the escape of controlled exotic species of tilapia into public waters. As part of a strategic conservation planning framework used to develop the proposed new rules, staff conducted a spatial conservation assessment informed by comprehensive review of the scientific literature and models of species distribution probability. The assessment identified key areas where escape of tilapia is likely to have detrimental impacts on fish designated as Species of Greatest Conservation Need. The assessment also identified areas of economic activity (comparatively high tilapia stocking) to balance potential conservation actions against potential economic impacts. Based upon this assessment, the department proposes the creation of two zones—a “conservation zone” and a “stocking zone.”

        Proposed new §57.115(d)(1) would reiterate that no person holding regulated species of tilapia in a private pond without a controlled exotic species permit may sell, offer for sale, or exchange tilapia for money or anything of value, which is necessary to ensure that it is abundantly clear that commercial activity involving regulated species of tilapia without a controlled exotic species permit authorizing such activities is prohibited.

        Proposed new §57.115(d)(2) would stipulate that if a county designated as being within the stocking zone is subsequently designated as being within the conservation zone, the provisions of the proposed new rules that govern conservation zones would then apply to the county, which is necessary to make clear that rules governing conservation zones apply to counties in conservation zones.

        Proposed new §57.115(d)(3) would prescribe the provisions for stocking tilapia in private ponds within the conservation zone. Proposed new subparagraph (A) would require a landowner seeking to stock a pond located within a conservation zone to obtain approval from the department by submitting a completed application to the department at least 30 days prior to the prospective stocking (no associated fee). Proposed new subparagraph (B) would provide for department approval of the stocking authorization upon finding that the pond is designed and will be maintained such that escape, release, or discharge of tilapia from the pond into public water is not likely to occur and that the stocking does not pose a significant risk to any species designated as endangered, threatened, or a Species of Greatest Conservation Need. Proposed new subparagraph (C) would provide that a stocking authorization applies only to the specific pond for which it is issued, is transferrable, and will neither expire nor require renewal provided the pond is not modified in any way could result in increased risk of escape, release, or discharge of controlled exotic species into public water. A conservation zone is an area where the escape of tilapia into public water represents a significant potential negative impact to imperiled fishes. The department believes it is prudent to evaluate and approve prospective stocking activities within the conservation zone on a pond-by-pond basis. To ensure that there is sufficient time for the department to conduct an ecological assessment, the proposed new paragraph would require an application to be submitted no less than 30 days before the intended date of stocking. Because the conservation zone reflects the area the department has determined is most ecologically vulnerable to accidental releases of exotic species of tilapia, the proposed paragraph would also predicate stocking authorization on a department determination that the prospective stocking site is physically sufficient to make escapement unlikely and that the stocking does not pose a significant threat to species of concern on the landscape. Finally, the department considered that the ownership of private ponds can change as a result of a variety of factors (sale, gift, or inheritance, etc.) and has determined that so long as the pond in question is not modified in such a way as to enhance risk of escapement, there is no need to reauthorize or renew the stocking approval which is intended to preclude complications as a result of real estate transactions. Current rules provide a regulatory exception only for the stocking of Mozambique tilapia in private ponds. The proposed new rules would allow stocking of other species such as blue tilapia, Nile tilapia, Wami tilapia, and hybrids between these species within the conservation zone upon approval by the department.

        Proposed new §57.115(d)(4) would prescribe the provisions for stocking tilapia in private ponds within the stocking zone, requiring only that private ponds stocked with tilapia be compliant with proposed new §57.115(b), which requires ponds to be designed and maintained such that escape, release, or discharge of tilapia from the pond into public water is not likely to occur, which is necessary for reasons discussed earlier in this preamble. A stocking zone is an area where stocking is common and there is a low potential negative ecological impact from accidental escapement.

        Proposed new §57.115(d)(5) would retain the requirement of current §57.113(i) that tilapia stocked in a private pond must be killed by one of the approved methods set forth in proposed new §57.113(e) prior to transfer to another person.

        Proposed new §57.115(d)(6) would retain the recordkeeping requirements of current §57.116(d).

        Proposed new §57.115(e) would reiterate the specific requirements of proposed new subsection (d) that prohibit the stocking of tilapia in private ponds within the conservation zone without the landowner or their agent first obtaining written approval from the department.

        Proposed new §57.116, concerning Special Provisions – Triploid Grass Carp, would set forth the provisions governing the issuance of permits for stocking of triploid grass carp into public or private water.

        Proposed new §57.116(a) would provide for the issuance of a controlled exotic species permit for stocking triploid grass carp in public water upon a finding by the department that the stocking is not likely to affect threatened or endangered species or interfere with management objectives for other species or habitats, which are provisions of current rule (§57.126(a)(5) — (7)).

        Proposed new §57.116(b) would provide for the issuance of a controlled exotic species permit for stocking triploid grass carp in a private pond upon a finding by the department that the stocking is not likely to result in an introduction unlawful under Parks and Wildlife Code, §66.015. Under Parks and Wildlife Code, §66.015, a person commits a violation if fish, shellfish, or aquatic plants the person possesses or has placed in nonpublic water escape into the public water of the state and the person does not hold a permit issued by the department authorizing such release or escapement; therefore, the proposed new subsection would reiterate the statutory provision to clarify that permit issuance is conditioned on a determination by the department that escape is not likely to occur. The proposed new subsection would also reiterate current rules (§57.126(a)(5) — (7)) by requiring permit issuance to be conditioned on a department finding that the prospective stocking would not affect threatened or endangered species, or interfere with management objectives for other species or habitats.

        Proposed new subsection (c) would require an applicant for a triploid grass carp permit for private pond stocking to allow, upon request by the department, the inspection of the affected ponds or lakes by an employee of the department during normal business hours for the purposes of evaluating whether the private pond meets the criteria for permit issuance, which is a requirement of current §57.125(d).

        Proposed new subsection (d) would stipulate that the stocking rate authorized by the department in the terms of a controlled exotic species permit be determined by considering the surface area of the water body to be stocked and the extent of the vegetation to be managed.

Current §57.126(c) stipulates that the department will consider the surface area of the pond or lake named in the permit application, and, as appropriate, the percentage of the surface area infested by aquatic vegetation. The proposed new subsection would replace “the percentage of the surface area infested by aquatic vegetation” with “the extent of the vegetation to be managed.” Because the degree of infestation for submerged aquatic vegetation species is a function of both the surface area and water depth of the infestation, the proposed new provision would liberalize the factors considered by the department, such as the species of nuisance aquatic vegetation present and their vulnerability to triploid grass carp) in determining the appropriate number of fish to be stocked.

        Proposed new subsection (e) would enumerate the sources from which triploid grass carp may be lawfully obtained by stipulating that triploid grass carp may be purchased or obtained only from the holder of a permit that authorizes the sale or from a lawful out-of-state source.  Under current §57.124(c), only exotic species permit holders are permitted to purchase triploid grass carp from a lawful out-of-state source. The proposed new subsection would allow purchase of triploid grass carp by anyone, provided the source is either a controlled exotic species permit holder authorized to possess and sell triploid grass carp or an out-of-state entity allowed to sell triploid grass carp. The change is intended to broaden the opportunities available for permitted persons to obtain triploid grass carp.

        Proposed new subsection (f) would authorize the department to introduce triploid grass carp into public water in situations where the department has determined that there is a management need, and when stocking will not affect threatened or endangered species or other important species or habitats. Current rules do not specifically authorize the department to stock triploid grass carp in public water, but Parks and Wildlife Code, §12.013, authorizes the department to regulate the introduction and stocking of fish, shellfish, and aquatic plants into the public water of the state; thus, the proposed new subsection would recapitulate existing statutory authority.

        Proposed new subsection (g) would prescribe the requirements for the issuance of controlled exotic species permits to stock triploid grass carp in private ponds.

        Proposed new subsection (g)(1) would require private ponds stocked with triploid grass carp to be designed and maintained such that escape, release, or discharge of triploid grass carp into public water is not likely to occur. Although current §57.117, concerning Exotic Species Permit: Application Requirement, requires an applicant for an exotic species permit to demonstrate to the department that an existing aquaculture facility, private facility, or wastewater treatment facility meet the requirements of current §57.129, concerning Exotic Species Permit: Private Facility Criteria, it is not clear that the provision is applicable to a private pond (although the current definition for “private facility” includes private ponds). The proposed new subsection would eliminate possible ambiguity by, in tandem with the proposed amendment to §57.111, specifically excluding private ponds from the definition of “facility” but specifically referencing triploid grass carp in the definition of “private pond.” The intent of the proposed new subsection is to clarify the department’s authority to require private ponds to be designed and maintained in such a fashion as to minimize the danger of escapement of triploid grass carp.

        Proposed new subsection (g)(2) would require a landowner seeking to stock triploid grass carp to obtain a permit for that purpose from the department. Under Parks and Wildlife Code, §66.007, no person may import, possess, sell, or place into the public water of this state exotic harmful or potentially harmful fish or shellfish except as authorized by rule or permit issued by the department. Similarly, proposed new §57.113, concerning General Provisions and Exceptions, would prohibit the introduction into public water, possession, importation, exportation, sale, purchase, transport, propagation, or culture of any species, hybrid of a species, subspecies, eggs, seeds, or any part of any species defined as a controlled exotic species. The department believes it is necessary to reproduce the same provisions with respect to triploid grass carp in the interests of emphasis.

        Proposed new subsection (g)(3) would stipulate that a permit authorizing the stocking of triploid grass carp is specific to the ponds on the property for which it is issued, is transferrable, and will neither expire nor require renewal provided the pond is not modified in any way that could result in increased risk of escape, release, or discharge of controlled exotic species into public water. It is axiomatic that the release of triploid grass carp exotic species is a cause of concern. Therefore, the proposed new paragraph would restrict stocking authorization to specific ponds. Additionally, the department considers the fact that ownership of private ponds can change as a result of a variety of factors (sale, gift, or inheritance, etc.) and has determined that so long as the ponds in question are not modified in such a way as to enhance risk of escapement, there is no need to reauthorize or renew the stocking approval, which is intended to preclude complications as a result of real estate transactions.

        Proposed new subsection (g)(4) would prohibit the sale, offering for sale, or exchange in return for money or anything of value of triploid grass carp held in a private pond, which is necessary because under current §57.124(a), triploid grass carp may sold only to another person holding a permit authorizing possession of triploid grass carp. The proposed new subsection is intended to ensure that it is abundantly clear that commercial activity involving triploid grass carp without a controlled exotic species permit authorizing such activities is prohibited.

        Proposed new subsection (g)(5) would stipulate that if a county designated as being within the conservation zone is subsequently designated as being within the stocking zone, the provisions of the proposed new rules that govern the stocking zone would then apply to the county, which is necessary to make clear that rules governing activities in the stocking zone apply to counties in the stocking zone.

        Proposed new subsection (g)(6) would stipulate that within a stocking zone, permit applications requesting ten or fewer triploid grass carp would require administrative review only. The application shall be submitted at least 14 days prior to the intended stocking. The department believes that small-scale introductions of triploid grass carp within the stocking zone represent a relatively innocuous potential for ecological concern; thus, it is not necessary for such introductions to be the subject of exhaustive review. However, the department also believes that there should be sufficient time for the administrative review to take place; therefore, the proposed new paragraph would require an application requesting ten or fewer triploid grass carp to be submitted no less than 14 days before the intended date of stocking.

        Proposed new subsection (g)(7) would prescribe recordkeeping requirements for persons in possession of live triploid grass carp stocked in a private pond. The proposed new paragraph would require a person in possession of live triploid grass carp stocked in a private pond to possess and retain for a period of one year from the date the grass carp were obtained or as long as the grass carp are in the water, whichever is longer, either an exotic species transport invoice or an aquatic product transport invoice from a lawful out-of-state source and documentation that the grass carp have been certified as triploid by the Grass Carp Inspection and Certification Inspection Program operated by the U.S. Fish and Wildlife Service.

        Proposed new subsection (g)(8) would retain the requirement of current §57.113(i) that tilapia stocked in a private pond must be killed by one of the approved methods set forth in proposed new §57.113(e) prior to transfer to another person.

        Proposed new §57.117, concerning Special Provisions – Shrimp Aquaculture and Health Certification, would set forth the special provisions governing shrimp aquaculture and the health certification of cultured shrimp, which differ from the current provisions of §57.114, concerning Health Certification of Harmful or Potentially Harmful Exotic Shellfish as noted, with numerous nonsubstantive changes to terminology to be consistent with other provisions of the proposed new rules.

        Proposed new §57.117(a) would require any facility containing controlled exotic species of shrimp to be capable of placing stocks into quarantine condition. Under current §57.129(d), an aquaculture facility containing harmful or potentially harmful exotic shellfish is required to be capable of segregating stocks of shellfish that have not been certified as free of disease from other stocks of shellfish on the aquaculture facility, which is essentially the same thing.

        Proposed new §57.117(b) would provide that a facility containing live Pacific blue shrimp (Litopenaeus stylirostris) be located outside the exotic shrimp exclusion zone. Current §57.113(k)(2) contain this requirement, but also stipulate that Pacific blue shrimp be cultured under quarantine conditions. Staff have determined that, under the requirements of proposed new §57.117, pertaining to disease inspections and quarantine upon manifestations of disease, and location of facilities outside the exotic shrimp exclusion zone, this activity poses a minimal risk to the existing biological ecosystem and native shrimps and quarantine conditions are not necessary.

        Proposed new §57.117(c) would require disease certification to be conducted by a disease specialist, which is a provision of current rules under §57.114(a).

        Proposed new §57.117(d) would require any person importing live controlled species of exotic shrimp to, prior to importation, provide documentation to the department that the controlled exotic species of shrimp to be imported have been certified as disease-free and receive written acknowledgment from the department that the requirements of for demonstrating disease-free status have been met. The proposed new provision is a requirement of current §57.114(b).

        Proposed new §57.117(e) would require any person in possession of controlled exotic species of shrimp for the purpose of production of post-larvae to provide to the department monthly documentation that nauplii and post-larvae have been examined and certified to be disease-free. The proposed new subsection would further provide that if monthly certification cannot be provided, the shrimp must be maintained in quarantine condition until the department acknowledges in writing that the requirements for demonstrating stock is disease-free or conditions specified in writing by the department under which the quarantine condition can be removed have been met. The proposed new provision is a requirement of current §57.114(c).

        Proposed new §57.117(f) would require any person who possesses controlled exotic species of shrimp in a facility regulated under the subchapter who observes one or more of the manifestations of diseases of concern listed on the clinical analysis checklist provided by the department to place the entire facility under quarantine condition immediately, notify the department, and either request an inspection from a disease inspector or submit samples of the affected shrimp to a disease specialist for analysis and forward the results of such analyses to the department upon receipt. The proposed new provision is a requirement of current §57.114(d).

        Proposed new §57.117(g) would provide that no more than 14 days prior to harvesting ponds or discharging any waste into or adjacent to water in the state, the permit holder must request an inspection from a disease inspector or submit samples of the shrimp from each pond or other structure containing such shrimp to a disease specialist for analysis and submit the results of such analyses to the department upon receipt, using the clinical analysis checklist. The proposed new provision is a requirement of current §57.114(e).

        Proposed new §57.117(h) would provide that upon receiving a request for an inspection from a permit holder, a disease inspector may visit the facility, examine samples of shrimp from each pond or other structure from which waste will be discharged or harvest will occur, complete the clinical analysis checklist provided by the department, sample shrimp from or inspect any pond or structure the disease inspector determines requires further investigation, and provide a copy of the clinical analysis checklist and any other inspection reports to the permit holder. The proposed new provision is a requirement of current §57.114(f).

        Proposed new §57.117(i) would provide that if the results of an inspection performed by a disease inspector indicate the presence of one or more manifestations of disease, the permit holder would be required to immediately place or continue to maintain the entire facility under quarantine condition and submit samples of the controlled exotic species of shrimp from the affected portion(s) of the facility to a disease specialist for analysis. Results of such analyses would be required to be forwarded to the department upon receipt. The proposed new provision is a requirement of current §57.114(f).

        Proposed new §57.117(j) would stipulate that if the results of a required analyses performed by a disease specialist indicate the presence of disease, the permit holder would be required to immediately place the entire facility under quarantine condition. The proposed new provision is a requirement of current §57.114(h).

        Proposed new §57.117(k) would stipulate that if the results of inspections or analyses of controlled exotic species of shrimp from a facility placed under quarantine condition indicate the presence of disease, the facility shall remain under quarantine condition until the department removes the quarantine condition in writing or authorizes in writing other actions deemed appropriate by the department based on the required analyses. The proposed new provision is a requirement of current §57.114(i).

        Proposed new §57.117(j) would provide that if the results of required inspections or analyses indicate the absence of any manifestations of disease, the permit holder may begin discharging from the facility. The proposed new provision is a provision of current §57.114(j).

        Proposed new §57.118, concerning Special Provisions – Water Spinach, would set forth the provisions regarding possession, cultivation, transport, and sale of water spinach, as well as providing for recordkeeping and reporting requirements. The proposed new section represents a reorganization of current §57.136, concerning Special Provisions – Water Spinach with substantive differences as noted. Numerous nonsubstantive changes have been made to enhance clarity and change terminology to be consistent with other provisions of the proposed new rules.

        Proposed new §57.118(a) would provide that except as authorized by a permit issued under the proposed new section or otherwise provided by the subchapter, no person may culture water spinach or possess or transport water spinach in exchange for or with the intent to exchange for money or anything of value. Under current §57.136(a)(2), no person may grow water spinach or possess or transport water spinach for a commercial purpose unless that person possesses a valid exotic species permit issue by the department for that purpose. The proposed new provision is nonsubstantive reformulation of those requirements.

        Proposed new §57.118(b) would provide that no permit is required to purchase or possess water spinach for personal consumption provided the water spinach was lawfully purchased or obtained and is not propagated or cultured. The proposed new subsection is a mixture of provisions in current §57.136(a)(2) and (4).

        Proposed new §57.118(c) would set forth the conditions under which water spinach could be purchased or obtained for sale or re-sale and consists of the provisions of current §57.136(a)(3), with one substantive change. Paragraph (2) of the proposed new subsection would reduce the record retention time period stipulated in the current rule from two years to one. The department has determined that a one-year retention period is sufficient to allow the department to investigate the commercial pathways of water spinach commerce with respect to a single recipient.

        Proposed new §57.118(d) would prescribe facility standards for culture of water spinach. The proposed new subsection would consist of the provisions of current §57.136(c)(1) — (7) and one provision from current §57.119(a)(2), with nonsubstantive changes. The provision being relocated from §57.119(a)(2) would specify that a copy of the permit be prominently displayed at the facility for which it was issued. Several provisions of the proposed new subsection are new. The requirements of current §57.136(d)(5) do not apply to greenhouses built before 2009.  Proposed new §57.118(d)(7) would remove that limitation to provide the department discretion to grant a modification of the 10-foot buffer width requirement based on the location of greenhouses built at any time. The department considers that in some instances, greenhouses built prior to permit application could be located within less than 10 feet of the property boundary and requiring an applicant to move or rebuild a greenhouse could be problematic. The proposed new rule would allow the department to evaluate such sites on a case-by-case basis to assess risk of escape and potentially grant a modification of the buffer width requirement to avoid imposing such a burden upon the applicant, where possible and consistent with the department’s statutory obligation to protect native organisms and ecosystems.

        Proposed new §57.118(d)(8) would stipulate that greenhouses where water spinach is cultured be maintained at all times in such a way as to prevent escape or release of water spinach and require notification of the department in the event that facility repairs are necessary to prevent escape. In general, the current rules are obviously intended to protect native systems and organisms from potential deleterious effects of the escape of water spinach, and the proposed new paragraph would express that intent expressly in the form of a requirement governing maintenance obligations.

        Proposed new §57.118(d)(9) would require a permit holder to demonstrate to the department, during annual facility inspections, that the activities authorized under the subchapter are conducted in compliance with the requirements of the subchapter and the facility is maintained in such a way as to prevent escape or release of water spinach. Current §57.119(b) provides for department inspection of permitted facilities at any time that permitted activities are ongoing. Additionally, under current §57.120(b)(2), all facilities for which a permit renewal is sought must be in compliance with all applicable facility requirements of the subchapter. The proposed new paragraph would implement the requirement for an annual inspection, which the department will conduct during the growing season when risk of escape is greatest, with the additional benefit of lessening administrative burdens in two ways: by reducing the number of renewal inspections that must be conducted at the end of each permit year and the permit renewal processing times.

        Proposed new §57.118(e) would require all water spinach transported from a facility (including water spinach transported under an interstate transport authorization) to be packaged in a closed or sealed container having a volume no greater than three cubic feet, not mixed or commingled with any other material or substance, and identified such that each container of water spinach shall have a label placed on the outside of the container, clearly visible and bearing the legend "Water Spinach" in English. The proposed new subsection is a requirement of current §57.136(d)(1) and (2).

        Proposed new §57.118(f) is a revision of current §57.136(c)(6) and regarding the processing of water spinach. The rule would clarify that all handling and packaging of water spinach must be done at the permitted facility within the vegetation-free buffer area and that all water spinach fragments must be collected and disposed as described in subsection (k) of the proposed new section. Current rules simply require that handling must be done at the permitted facility and in such a manner as to prevent dispersal. However, based upon activities observed during facility inspections, the department has determined that additional emphasis on appropriate biosecurity measures is needed to provide assurance that the potential dispersal of water spinach is minimized.

         Proposed new §57.118(g) would require a transport invoice to accompany each sale or transfer of water spinach and prescribe the content of a transport invoice, all of which are contained in the provisions of current §57.118(3).

        Proposed new §57.118(h) would create and provide for the content and use of a transport log for permit holders transporting water spinach to or from a permitted facility. The department, after investigating the nature of commercial water spinach production and distribution, determined that in the typical business model the point of sale is the buyer’s location and not the facility where the water spinach was cultured. Current §57.136(d)(3) requires an individual transport invoice to be generated for each sale before the shipment leaves a culture facility, which the department has determined is somewhat problematic for the regulated community. Therefore, the proposed new subsection would create a process to be used in lieu of the current process, one where documentation is based on the point of delivery rather than production. The proposed new subsection would require a permit holder to execute a water spinach transport invoice for each receiver at the time the water spinach is delivered and maintain and possess a current and accurate daily transport log at all times during transport. The content of the daily transport log would consist of the date and time of shipment; the permit holder’s name, address, phone number, and exotic species permit number; the amount of water spinach in possession; the water spinach transport invoice number for each delivery, the receiver/supplier’s name, address, and phone number; the type of transfer—delivery or receipt; the amount of water spinach transferred; and the amount of water spinach in possession upon return to the facility. The proposed new subsection is intended to provide a more flexible method of documentation for the regulated community while preserving the department’s ability to monitor the production and movement of a controlled exotic species through a chain of custody.

        Proposed new §57.118(i) would set forth the record retention requirements for the proposed new rule, requiring copies of each daily transport log, transport invoice, and receipt or documentation for water spinach obtained from an out-of-state source to be retained for one year. Current §57.136(e)(2) specifies a record retention period of two years, which applies to all records; thus, the proposed new subsection would reduce administrative burden on the regulated community by reducing the volume of documentation required to be maintained and the time period it must be retained. The proposed new subsection also would require records and documents require by the subchapter to be provided to the department during normal business hours upon request of a department employee acting in the scope of official duties, which is a requirement of current §57.136(e)(3).

        Proposed new §57.118(j) would prescribe the reporting requirements for persons subject to the provisions of the proposed new section, stipulating the dates of quarterly reports and clarifying that required reports must be submitted even for time periods during which no sales took place. The proposed new subsection is a requirement under current §57.136(e)(1).

        Proposed new §57.118(k) would set forth various provisions regarding requirements for the prevention of escape of water spinach from a facility.

        Proposed new paragraph (1) would specify that water spinach may not be allowed to escape from a facility nor be released or spread outside the facility during cultivation, handling, packaging, processing, storage, shipping, or disposal. This provision reiterates the essential components of numerous current rules and statutes, such as Parks and Wildlife Code, §66.007, which prohibits the importation, possession, sale, or placement into the public water of this state of exotic harmful or potentially harmful fish or shellfish except as authorized by rule or permit issued by the department, and §66.0071, which prohibits the importation, possession, sale, or placement into the public water of this state of aquatic plants designated by the department as harmful or potential harmful except as authorized by rule or permit issued by the department.

        Proposed new paragraph (2) would reiterate the provisions of current §57.136(a)(6) by prohibiting the use of water spinach to feed animals.

        Proposed new paragraph (3) would specify that water spinach not sold, transferred, or consumed and all fragments of water spinach not growing in soil or packaged must be placed into a secure container until packaged or transported to a secure waste or compost bin and composted, dried fully, or placed into black plastic bags prior to disposal. The department believes that reproductively viable water spinach should be handled and stored in such a manner as to reasonably prevent escape to native systems. Therefore, the proposed new paragraph would prescribe that all stock not growing in soil or package be containerized or otherwise rendered non-threatening.

        Proposed new paragraph (4) would require the holder of a permit issued under this subchapter to notify the department within 72 hours of discovering the escape or release of water spinach from a facility or during transport. Current rules do not impose notification requirements on persons growing or transporting water spinach. The department believes it is prudent to do so, first to be consistent with similar provisions elsewhere in the subchapter, and second because it is intuitive that the release of water spinach, a harmful or potentially harmful species, should be reported quickly in order to provide the highest assurance of remediation.

        Proposed new paragraph (5) would require a permit holder, in the event that a facility appears to be in imminent danger of flooding or other circumstance that could result in the escape or release of water spinach, to immediately begin implementation of emergency measures to prevent the escape or release of water spinach and notify the department of implementation of emergency measures in accordance with provisions specified in the permit. Current rules do not impose notification requirements on persons growing water spinach. The department believes it is prudent to do so, first to be consistent with similar provisions elsewhere in the subchapter, and second because it is intuitive that the potential unintended release of water spinach, a harmful or potentially harmful species, should be responded to immediately by the permit holder and reported quickly in order to provide the highest assurance of remediation.

        Proposed new §57.118(k)(6) (current §57.136(f)) provides that, in the event that water spinach escapes or is released from a greenhouse or a facility, the facility permit holder is responsible for all costs associated with the detection, control, and eradication of free-growing water spinach resulting from such escape or release and subsequent dispersal. Additionally, the proposed new paragraph would clarify that water spinach growing outside a greenhouse is considered to have escaped.

        Proposed new §57.118(k)(7) would stipulate that water spinach being cultured without a permit for whatever reason would be subject to a department-prescribed disposition protocol, in accordance with proposed new §57.113, concerning General Provisions and Exceptions. Although current rules specify disposition protocols for controlled exotic species other than water spinach, the department believes it is prudent to do so, first to be consistent with similar provisions elsewhere in the subchapter, and second because it is intuitive that water spinach being grown without a permit should be disposed of in a matter that precludes spread.

        Proposed new §57.119, concerning Minimum Facility Requirements, would prescribe requirements for infrastructure and processes at facilities where controlled exotic species are possessed, propagated, cultured, or sold under a controlled exotic species permit, excluding private waters permitted for triploid grass carp.

        Proposed new §57.119(a)(1) would provide for general requirements for facilities other than those permitted for culture of water spinach (i.e., fish/shellfish aquaculture/holding facilities).

        Proposed new §57.119(a)(1)(A) would require prominent display of a copy of the permit at the facility for which it was issued, which is required under current §57.119(a)(2).

        Proposed new §57.119(a)(1)(B) would stipulate that a facility must be maintained in compliance with the standards set forth in the section at all times unless the department has been notified that facility repairs are necessary. Under current §57.119(j), all devices required in the exotic species permit for prevention of discharge of exotic species from a facility are required to be in place and properly maintained. The proposed new subparagraph would retain those requirements but remove the potentially confusing reference to “all devices” to clarify that the intent of the current provision is to impose a general duty upon the permit holder to prevent discharge of controlled exotic species from a facility. Because the nexus of all aspects of facility infrastructure and process is the biosecurity of the facility, “devices” in the sense it used in the current rule is intended to refer to the entirety of the facility and the processes conducted within it.

        Proposed new §57.119(a)(1)(C) would require permit holders to satisfactorily demonstrate to the department at intervals of no more than five years, unless longer intervals are approved by the department based on systematic risk analysis, that activities authorized at the permit holder’s facility under a controlled exotic species permit are conducted in compliance with the requirements of the subchapter. The intent of the proposed new provision is to protect native systems and organisms from the threat of escaped harmful or potentially harmful exotic species by enhancing biosecurity through periodic inspections of facilities to verify that permitted activities are being conducted in compliance with applicable rules. The proposed new provision also would provide for department discretion to assign longer inspection intervals for facilities with low risk of escape. For those facilities that either by virtue of their design or the relatively low escapement risk of the species being possessed, the department believes it is sensible to allow for longer inspection intervals.

        Proposed new §57.119(a)(1)(D) would prescribe training requirements for persons such as the employees and staff of facilities operated by permit holders. The proposed provision would require permit holders to ensure that employees and staff are trained to understand and comply with permit conditions and requirements and to implement the facility’s department-approved emergency plan, if necessary, to prevent escape, release, or discharge of controlled exotic species into public water during a natural disaster such as a hurricane or flood. The provision is necessary to ensure that all persons involved with the operation of a facility are aware of and have been trained to perform permitted activities, including emergency response activities.

        Proposed new §57.119(a)(2) would create an exemption from facility requirements for limited special purpose permit holders who purchase, transport, and sell controlled exotic species for stocking in private ponds, but who do not hold the species in a facility. The proposed new provision also would provide that all required records and documentation be made available to department staff during normal business hours within 72 hours following a request by the department. The proposed new provision is intended to address the special circumstances of those permit holders who act as intermediaries between sources and destinations and do not operate facilities where controlled exotic species are held. The record retention component of the proposed new paragraph is necessary to enable the department to monitor and verify permit compliance and is consistent with similar provisions of the proposed new rules that have been discussed previously in this preamble.

        Proposed new §57.119(a)(3) would require facilities to be equipped with security measures to discourage unauthorized removal of controlled exotic species, which is a requirement of current §57.129(e). The current rule specifies that required security measures must prevent unrestricted or uncontrolled access and unauthorized removal of controlled exotic species. The department has determined that the rules should provide for greater flexibility with respect to security measures because absolute security is not realistic. Therefore, the proposed provision would modify the current requirements to require any facility containing controlled exotic species to have security measures in place to reasonably minimize the risk of unauthorized removal of controlled exotic species, which allows the department to review security measures on a case-by-case basis.

         Proposed new §57.119(a)(4) would provide that the department may prescribe additional security measures on a case-by-case basis as a permit condition upon a determination that a particular facility cannot feasibly comply with the security requirements of the subchapter or the security measures contemplated or in place are not sufficient to minimize risk of escape, release, or discharge or impacts to native species and ecosystems. The proposed new provision is necessary to address special situations in which customized security provisions are the only means of ensuring biosecurity and thus authorizing permitted activities to take place.

        Proposed new §57.119(b) would provide additional emphasis to the effect that facilities where water spinach is cultured are subject to the provisions of proposed new §57.118, concerning Special Provisions – Water Spinach.

        Proposed new §57.119(c) would stipulate facility requirements for persons who operate or engage in operations at a commercial aquaculture facility under a controlled exotic species permit.

        Proposed new §57.119(c)(1) would require permitted facilities to be designed to prevent escape, release, or discharge of controlled exotic species or unauthorized discharge of wastewater by means of appropriately designed and constructed screens, barriers, filters, recirculating aquaculture systems or other methods that are approved by the department and that must be properly maintained at all times. The current rules (§57.129(b)) governing commercial facility infrastructure have been in place many years. The current rules specifically require the use of triple-screening at all facilities, which reflects an outmoded, one-size-fits-all approach to biosecurity. The current rules are based on a traditional facility layout of earthen ponds that drain through harvest structures into canals and then into public waters. However, not all facilities employ this model and appropriate biosecurity measures may vary. There are measures other than screening that are capable of providing efficacious biosecurity. For instance, triple-screening is not useful at facilities that do not discharge wastewater or that make use of sand filtration systems. The proposed new subsection would restrict the applicability of the current requirement regarding screens to only those facilities that actually employ screens for purposes of biosecurity and would create an additional regulatory structure to afford flexibility to evaluate each facility on a case-by-case basis to develop and implement appropriate measures to prevent escape, release, or discharge of controlled exotic species, which would be specified in the conditions of the permit. The proposed new paragraph also would specify that all screens, barriers, or other approved devices intended to prevent escape, release, or discharge be properly maintained at all times, which is a provision of current §57.119(j).

        Proposed new §57.119(c)(2) would prescribe facility requirements to prevent escape, release, or discharge of controlled exotic species at commercial facilities subject to the proposed new rules.

        Proposed new §57.119(c)(2)(A)) would specify that if a facility employs screening for purposes of biosecurity, the mesh size of screening must be capable of preventing the passage of controlled exotic species at the smallest life stage present in the facility at the time of discharge. Current §57.129(b)(1) requires that mesh be “of an appropriate size for each stage of exotic species growth and development.” The proposed new subparagraph would make clear that mesh size at any given time is predicated on the life stage of the controlled exotic species in the facility at the time of discharge, which is necessary to prevent misunderstandings that could result in the use of inappropriate mesh sizes and possible escapement.

        Proposed new §57.119(c)(2)(B) would require that screens be redundant or otherwise designed and constructed such that the level of protection, as determined by the department, against escape, release, or discharge of controlled exotic species is not reduced if a screen is damaged or must be removed to accomplish cleaning, repair, or other maintenance. Current §57.129(b) specifies that a minimum of three screens be in place between any point in the aquaculture facility and the point of discharge from the facility. Additionally, current rules (§57.129(b)(2) and (3)) require the permanent affixation of a screen and backing material in front of the final discharge pipe in the harvest structure to remain in place while the pond is in use, that screens at facilities discharging into public waters be secured over the terminal end of the discharge pipe at all times, that a second screen be secured over the terminal end of the discharge pipe during harvest, and double screening of the point of discharge of all mechanical harvesting devices. As mentioned previously in this preamble, the current rules do not afford the flexibility to accommodate different modalities of effective biosecurity infrastructure. The department has determined that the installation of three screens may not be necessary or feasible at facilities where screens are only one component of an effective biosecurity strategy and that permanent affixation of screens poses difficulties for periodic cleaning necessary to ensure proper function. Similarly, the department has determined that the terminal end of a pipe is often difficult to access and that installation of screens at different points in the drainage system can be just as if not more effective because those locations are easier to access for maintenance. Therefore, the proposed new paragraph would eliminate specific infrastructure specifications in favor of a generalized requirement that screens be redundant or otherwise designed and constructed such that the level of protection against escape, release, or discharge of controlled exotic species is not reduced if a screen is damaged or must be removed to accomplish cleaning, repair, or other maintenance. The intent of the proposed new paragraph is to allow greater flexibility to the regulated community for the selection and deployment of effective biosecurity measures by establishing a general standard and approving such measures on a case-by-case basis. Additionally, the proposed new paragraph would require wastewater discharged from a facility to be routed through all screens in accordance with department approval prior to the point where wastewater leaves the facility, which restates a provision of current §57.119(k) to clarify that water cannot be diverted in any way so as to bypass screens or screens that have been removed during discharge events.

        Proposed new §57.119(c)(3) prescribes biosecurity measures for facilities located in the 100-year floodplain and is a nonsubstantive revision of current §57.129(c).

        Proposed new §57.119(c)(4) would prescribe specific additional facility requirements for commercial aquaculture facilities that are part of a facility complex. A facility complex is a group of two or more facilities located at a common site and sharing water diversion or drainage structures. There are several facilities in Texas that are independent commercial entities with shared infrastructure.

        Proposed new §57.119(c)(4)(A) would require each permit holder at a facility complex to maintain at least one screen or barrier capable of preventing the escape, release, or discharge of controlled exotic species into a common drainage and have authority to stop the discharge of wastewater from the entire complex in the event of escape, release, or discharge of controlled exotic species from the permit holder’s facility. The provisions of the proposed new subparagraph are provisions of current rule §57.129(f)(1) and (2).

        Proposed new §57.119(c)(4)(B) would stipulate the placement and content of signage to be installed at each of the permit holder’s ponds or components within a facility complex. The signage required by the proposed new provision must be legible, bear the name and permit number of the permit holder, be within 10 feet of the authorized pond or other facility component, and correspond to the location of the component as indicated on the map provided to the department as part of the permit application and facility approval/reapproval process.  The proposed new subparagraph is necessary to allow the department to quickly and easily distinguish the ponds and components belonging to a given permit holder from other ponds and components within a facility complex for purposes of administration, enforcement, and emergency response.

        Proposed new §57.120, concerning Facility Wastewater Discharge Requirements, consists of the contents of current §57.134 (relating to Wastewater Discharge Authority) with nonsubstantive revisions to enhance clarity and readability. Subsection (a) of the current rule requires applicants for an initial permit to provide documentation of either authorization for or exemption from appropriate wastewater discharge requirements of the Texas Commission on Environmental Quality (TCEQ) or documentation adequate to demonstrate that the facility is designed and will be operated in a manner such that no discharge of waste into or adjacent to water in the state will, or is likely to occur. Subsection (b) of the current rule establishes provisions for applications for permit amendments and renewals, requiring either written documentation demonstrating that the applicant possesses or has timely applied for and is diligently pursuing the appropriate authorization or exemption from TCEQ in accordance with the Texas Pollutant Discharge Elimination System (TPDES) General Permit for concentrated aquatic animal production facilities TXG 130000, if the facility is designed such that a discharge of waste into or adjacent to water in the state will, or is likely to occur; or adequate documentation to demonstrate that the facility is designed and will be operated in a manner such that no discharge of waste into or adjacent to water in the state will, or is likely to occur. The proposed new rule would eliminate duplication and clarify that documentation related to wastewater discharge and associated permits is only required for permit renewal or amendment for a facility or facility complex designed such that a discharge of waste into or adjacent to water in the state will, or is likely to occur.

        Proposed new §57.121. Transport of Live Controlled Exotic Species, would set forth rules regarding the transport of controlled exotic species.

        Proposed new §57.121(a) would prohibit any person other than the holder of a controlled exotic species permit holder, an employee of the permit holder, a common carrier acting on their behalf, or a private pond owner transporting tilapia or triploid grass carp to a private pond for stocking purposes from transporting live controlled exotic species and prescribe the documentation requirements for such transport. Permit holders and employees of permit holders would be required to possess a copy of the permit and a properly executed transport invoice. A private pond owner transporting tilapia or triploid grass carp would be required to possess a properly executed transport invoice (if the fish were obtained from the holder of a controlled exotic species permit holder) or an aquatic product transport invoice as required by Parks and Wildlife Code, §47.0181 (if obtained from a lawful out-of-state source), and, for triploid grass carp, a copy of the department permit authorizing the stocking of triploid grass carp and documentation that the grass carp have been certified as triploid by the Grass Carp Inspection and Certification Inspection Program operated by the U.S. Fish and Wildlife Service. With respect to controlled exotic species being transported by common carrier, the proposed new subsection would require possession of documentation of compliance with all applicable local source and destination, federal, and international regulations and statutes for shipments transported by aircraft from inside Texas to a point outside Texas and not moved overland within the state; otherwise, each shipment would be required to be accompanied by a properly executed transport invoice obtained from the controlled exotic species holder from whom the shipment originated, and, for triploid grass carp obtained from a lawful out-of-state source transported to a private pond for stocking purposes, a copy of the department permit authorizing possession of the carp, the aquatic product transport invoice required by Parks and Wildlife Code, §47.0181, and documentation that the grass carp have been certified as triploid by the Grass Carp Inspection and Certification Inspection Program operated by the U.S. Fish and Wildlife Service. Various provisions of current rules (§57.115, §57.116), make the transport of exotic species without either a permit or a transport invoice unlawful, with specific exceptions for persons transporting Mozambique tilapia or triploid grass carp for use in private ponds, and prescribe the content of the transport invoice. The proposed new subsection preserves the effect of those provisions while noting the applicability of Parks and Wildlife Code, §47.0181, which requires persons other than commercial fishing license holders transporting aquatic products for a commercial purpose without an invoice as prescribed in that statute.

        Proposed new §57.121(b) would reference the transport requirements for water spinach prescribed elsewhere in the proposed new rules and discussed earlier in this preamble.

        Proposed new §57.121(c)(1) would stipulate that a separate controlled exotic species transport invoice be generated by the permit holder for each delivery location in advance of transport (except as provided otherwise in the proposed new rules and discussed earlier in this preamble) and accompany the controlled exotic species during transport. The department has determined that the current rule (§57.116(a)) does not adequately convey the intent that

        Proposed new subsection (c)(2) would prescribe the contents of a controlled exotic species transport invoice, which would consist of information identifying the date of the shipment, the size and biological identity of the contents being shipped, the contact information and permit numbers, if applicable, of the source and destination of the shipment, and the type of transport. Current §57.116 prescribes the content of the transport invoice. The proposed new subsection preserves the effect of those provisions while noting the applicability of Parks and Wildlife Code, §47.0181, which requires persons other than commercial fishing license holders transporting aquatic products for a commercial purpose without an invoice as prescribed in that statute.

        Proposed new §57.121(d) would set forth the transport invoice requirements for the shipment of controlled exotic species from outside of Texas via a route through Texas to a point outside Texas. Under current rule (§§57.130 – 57.133), the transport of live exotic species originating outside the state of Texas through Texas to a destination outside of the state of Texas is prohibited except by the holder of an exotic species permit or an exotic species interstate transport permit. The current rules also require anyone transporting live harmful or potentially harmful exotic species to possess documentation accounting, collectively, for all such species being transported and provide for application, fee, and issuance processes. The proposed new subsection would preserve the requirements of current rule while adding provisions allowing for such a permit to be valid for either a single use or for one year. The proposed new subsection also would establish the deadline for application before the initial instance of transport and set forth specific obligations for a person transporting controlled exotic species under an interstate transit permit, all of which are provisions of the current rules at §§57.130-57.133. The proposed new provision would specifically stipulate a notification requirement of at least 24 hours prior to each intended transit and prescribe the contents of the notification. Current §57.132(c) requires notification by fax at least 72 hours prior to transit. The proposed new subsection would require notice to accompany an application for a single-use permit and at least 24 hours prior to each intended transit under an annual transit permit.  The required notice would consist of the dates and times that the permit holder expects to enter and depart the state, the common and scientific names of each controlled exotic species to be transported, the quantity of each controlled exotic species to be transported, the specific points of origin and destination of each controlled exotic species being transported, the specific route the transport will follow, including the locations where the transporter will enter and depart the state of Texas, a description of the make, model, and color of the vehicle, trailer, or other conveyance to be employed in transport and license plate numbers; and the name, driver’s license number, and contact numbers of the driver or contact information for the commercial shipper transporting the controlled exotic species through the state of Texas, all of which the department has determined are necessary to enable the department to provide proper biosecurity for threats to natural systems and organisms by being able to monitor the transport of controlled exotic species across the state.

        The proposed new section would eliminate several provisions of current rules in the interests of reducing regulatory burdens on the regulated community. The requirement of current rule that each transport invoice be submitted to the department, which the department has determined to be administratively problematic, would be eliminated. The department has determined that current rules regarding possession and retention of transport invoices are sufficient for purposes of enforcement and compliance, given the department’s inspection authority under current statute and rule. Similarly, the requirements of current §§57.116(a) that require the permit holder to include an invoice number that is unique, sequentially numbered, and not used more than once during any permit period would be eliminated, because the department has determined that invoice numbers are not necessary to ensure compliance with transport invoice requirements.

        Current §57.116(a) requires the transport invoice to include name, address, phone number, aquaculture license number, and controlled exotic species permit number, if applicable, for the ‘shipper.’ However, the intent of the rule is that contact information for the seller be provided; proposed new §57.121(c)(2)(B) would specify that information must be provided for the ‘controlled exotic species permit holder from whom the controlled exotic species was obtained.’ Furthermore, the proposed new section would no longer require the aquaculture license number of the permit holder because possession of a valid aquaculture license is a prerequisite for the controlled exotic species permit, the number of which must be provided.

        Current §57.116(a) stipulates that information required for the receiver includes address as well as the address of the destination of the exotic species, if different. Proposed new §57.121(c)(2)(C) would specifically require only the physical address where the controlled exotic species will be possessed if different from the mailing address; post office box addresses are specifically prohibited because the department must be informed as to the physical location where fish might be stocked. The proposed new provision also would require that the destination county be included on the transport invoice to facilitate compliance with, and enforcement of, proposed new §57.115(d)(3) and (e), concerning sales of tilapia for stocking in private ponds in counties within the conservation zone.

        Current §57.116(a) stipulates that information required for the species being transported include number and total weight for each species. Proposed new §57.121(c)(2)(D) would clarify that both the common and scientific name of the species are required. Common names are highly variable and thus pose difficulties with interpretation for enforcement personnel, whereas scientific names are unequivocal; however, including both is needed to aid in interpretation if scientific names are erroneous. The proposed new rule also would require additional information concerning the number and total weight for each species by requiring number or weight, by size class. Fry and fingerlings are often sold by number, with weight unknown, whereas adult fish are often sold by the pound. Redundant count and weight information is not necessary for evaluating compliance; thus, requiring both weight and number on the invoice is unnecessary.

        Proposed new §57.122, concerning Permit Application, Issuance, and Period of Validity would set forth procedures to be followed by an applicant for a permit under the subchapter. The proposed new section would be a consolidation of provisions from various sections of current rules §57.117, concerning Exotic Species Permit: Application Requirements; §57.118, concerning Exotic Species Permit Issuance; §57.120, concerning Exotic Species Permit: Expiration and Renewal; and §57.125, concerning Triploid Grass Carp Permit: Application, Fee.

        Proposed new §57.122(a) would provide a cross-reference to the application, issuance, and permit period of validity standards for interstate transport permits contained in proposed new §57.121, concerning Transport of Live Controlled Exotic Species.

        Proposed new §57.122(b) would prescribe the conditions for applications for controlled exotic species permits other than for interstate transit, which are located in current §57.117(b) and (c).

         Proposed new §57.122(b)(1) would establish a permit application submission deadline of 30 days prior to any prospective activity involving controlled exotic species, which is necessary to ensure adequate time for permit application review, facility inspections, and permit issuance.

        Proposed new §57.122(b)(2) would describe the specific information required by and contained in the application form, which is necessary for the department to assess the prospective activities and determine suitability for permit issuance.

        Proposed new §57.122(b)(2)(D) would provide for the specific instances for which the department waives fees for applications, all of which are provided for in current rule

        Proposed new §57.122(b)(3) would prescribe additional required documentation. Proposed new subparagraph (A) would clarify that a copy of aquaculture or fish farm vehicle licenses required by the TDA must be submitted with the permit application. Current §57.117(a)(1)(A) requires possession of an aquaculture license to be considered for an exotic species permit for aquaculture.

        Proposed new subparagraph (B) would require applicants for commercial aquaculture facility permits to submit the documentation required by proposed new §57.120, concerning Facility Wastewater Discharge Requirements, which is a requirement of current §57.134, concerning Wastewater Discharge Authority.

        Proposed new §57.122(b)(3)(C) would require applicants for a permit to possess, transport, and dispose controlled exotic species of plants to submit the treatment proposal required by  §57.932, concerning State Aquatic Vegetation Plan, which is necessary for the department to ensure that the applicant is compliance with the statutory requirements of Parks and Wildlife Code, §11.082, which mandates a state aquatic vegetation management plan.

        Proposed new §57.122(b)(3)(D) would require submission of a facility map along with the permit application for commercial aquaculture facility permits, biological control production permits, zoological display or research permits with outdoor holding facilities, or limited special purpose permits for wastewater treatment. Current rules require an accurate-to-scale plat map; for smaller facilities, particularly those using recirculating aquaculture systems that consist of only small tanks, this requirement is cost-prohibitive. To provide greater flexibility to the regulated community, the proposed new provisions would allow for labeled, accurate maps or aerial photographs of the facility and only require professionally surveyed maps for facilities within the 100-year floodplain that are constructed in such a way that escape might occur during flooding (e.g., outdoor, earthen ponds). The proposed new rules also provide that maps are required for zoological display or research permits only when the application is for outdoor holding facilities, which is necessary for the department to evaluate the potential for escape of controlled exotic species.

         Proposed new §57.122(b)(3)(E) would consist of the revised content of current §57.117(d), concerning emergency plans. Current rules require emergency plans only for facilities located in the exotic shrimp exclusion zone. The proposed new provision would require an emergency plan for all facilities, which the department has determined is necessary to ensure that appropriate measures are in place to prevent escape, release, or discharge of controlled exotic species into public water during a natural event such as a hurricane or flood. The proposed rule would also require that the approved emergency plan be posted and maintained on file at the facility to ensure all staff are familiar with and prepared to implement the plan, which is necessary to ensure the biosecurity of all facilities during such natural events and prevent inadvertent introductions of controlled exotic species into public waters.

         Proposed new §57.122(b)(3)(F) would require submission of a research proposal by applicants for permits to conduct scientific research involving controlled exotic species and documentation of the qualifications of the applicant to conduct controlled exotic species research. Current rule requires only that an applicant have a department-approved research proposal to be considered for permit issuance. The department has determined that it is necessary to ensure that research permits are issued only to persons qualified to conduct scientifically valid research that will legitimately contribute to the knowledge, prevention, impact assessment/mitigation, and management of controlled exotic species.

        Proposed new §57.122(b)(3)(G) would establish additional requirements for permits to culture controlled exotic species of plants as hosts for the purposes of production of biological control agents. The proposed new provision would require submission of a biological control plan addressing the number of biological control agents to be collected from private waters, expected production of controlled exotic species of plants, and the intended use of and stocking locations for the biological control agents. The proposed new provision is necessary to accommodate emerging technologies and methods to control exotic species.

        Proposed new §57.122(c) would set forth the conditions under which the department would issue a permit. Under current rule, the department may issue a permit when all application requirements of the rules have been met; the aquaculture facility operated by the applicant meets or will meet the design criteria stipulated in the rules, and the applicant has complied with all provisions of the Parks and Wildlife Code, §§66.007, 66.0072, and 66.015, and the subchapter during the one-year period preceding the date of application. The proposed new subsection would consolidate these provisions with other provisions regarding facility requirements (current §57.119 and §57.129) and inspection (current §57.119 and §57.125).

        Proposed new §57.122(d) would consist of the provisions of current §57.120(a) regarding the period of permit validity, altered to include an exception for activities authorized under §57.932, concerning State Aquatic Vegetation Plan, discussed earlier in this preamble.

        Proposed new §57.123, concerning Permit Amendment and Renewal, would prescribe the processes and requirements for amending and renewing permits issued under the subchapter. The proposed new section would be a consolidation of provisions from various sections of current §57.120, concerning Exotic Species Permit: Expiration and Renewal.

        Proposed new §57.123(a) would clarify the requirements of current §57.119(m), which states that permits are not transferrable from site to site. The revised provision would stipulate that a permit is valid only for the facility for which it issued and will not be amended to authorize activities at any other location or facility.

        Proposed new §57.123 (b) would enumerate specific activities that are prohibited without receiving an amended permit from the department. Current §57.121(b) requires an exotic species permit to be amended before a permittee may add or delete species of harmful or potentially harmful exotic fish, shellfish, or aquatic plants held pursuant to the permit; redistribute harmful or potentially harmful fish, shellfish, and aquatic plants into private facilities not authorized in the permit; change methods of preventing discharge of harmful or potentially harmful exotic fish, shellfish, and aquatic plants; change discharge of private facility effluent from aquaculture facilities or wastewater treatment facilities; or change an existing approved facility design. The proposed new subsection would simplify and restate the current list of activities, add a provision prohibiting the transfer of managerial or supervisory responsibilities to anyone other than the current permit holder, and specifically state that the activities are prohibited unless an amended permit has been received from the department. The new provision regarding transfer of supervisory or managerial responsibility is necessary to ensure that persons operating under a permit meet the requirements of the proposed new rules for permitted activities.

        Proposed new §57.123(c) would provide for amendment or renewal of a permit provided the applicant has submitted an application for amendment or renewal at least seven days prior to transfer of managerial or supervisory responsibilities to a new person (if applicable); submitted the appropriate fee (if required) by the department; has complied with all permit provisions; and demonstrates that the facility is operated and maintained in a manner such that no escape, release, or discharge of controlled exotic species into public water or into facility ponds or drainage structures not meeting minimum facility requirements will or is likely to occur. Current §57.120(b) provides for the renewal of an exotic species permit upon finding that the applicant has met specified application requirements, the facility will meet all applicable facility design criteria, the applicant has complied with all provisions of the Parks and Wildlife Code, §§66.007, 66.0072, 66.015, and the subchapter during the one-year period preceding application for renewal; and the applicant has submitted a renewal application and all required annual reports. Current §57.121(a) provides that an exotic species permit may be amended provided the applicant has complied with all provisions of the Parks and Wildlife Code, §§66.007, 66.0072, 66.01, all provisions of the permit and the subchapter during the one-year period preceding the date of application; the applicant has met all applicable application requirements; and the facilities as altered will meet the required facility criteria. The proposed new subsection would allow for permit amendment or renewal upon finding that the applicant has submitted a written request for permit amendment or application for renewal prior to permit expiration or seven days prior to transfer of managerial or supervisory responsibilities; submitted the required fee; complied with all permit provisions; met minimum facility requirements (if applicable); and operated and maintained the facility in a manner such that no escape, release, or discharge of controlled exotic species into public water or into facility ponds or drainage structures not meeting minimum facility requirements will or is likely to occur.

        Proposed new §57.123(d) would introduce a new provision allowing for commercial aquaculture permits to be renewed for a period of greater than one year. Current §57.120(a) stipulates that all permits expire on December 31 of the year of issuance. The proposed new section would allow renewal of commercial aquaculture permits for a period of one, three, or five years provided the permit holder had complied with all provisions of this subchapter for a period equivalent to the renewal period. The proposed new provision would reduce the burden of permit administration on the department and the regulated community.

        Proposed new §57.124, concerning Refusal to Issue; Review of Agency Decision to Refuse Issuance, would consist of revised selected content from current §57.118, concerning Exotic Species Permit Issuance); §57.122, concerning Permit Denial Review; and §57.127, concerning Triploid Grass Carp Permit; Denial.

        Proposed new §57.124(a)(1) would provide for the department to refuse issuance or renewal, as applicable, of a permit to any person or for any facility if the department determines that a prospective activity constitutes a threat to native species, habitats, or ecosystems or is inconsistent with department management goals and objectives. Although numerous provisions of the proposed new rules would function individually and collectively to define the contexts or situations in which the department could refuse to issue or renew a controlled exotic species permit, the proposed new section would function to provide a single statement of that authority.

        Proposed new §57.124(a)(2) would provide for refusal to issue, amend, or renew a controlled exotic species permit for 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; Parks and Wildlife Code, §§66.007, 66.0072, or 66.015; a provision of the Parks and Wildlife Code that is a Class A or B misdemeanor or felony; Penal Code, §37.10; the Lacey Act (16 U.S.C. §§3371-3378), or a violation of federal law applicable to grass carp. In addition, the proposed new section would allow the department to refuse permit issuance, amendment, or renewal to another person employed, authorized, or otherwise utilized to perform permitted activities by the applicant has been convicted of, pleaded guilty or nolo contendere to, or received deferred adjudication or pre-trial diversion for one of the listed offenses listed in the  section and allow the department to prevent a person from acting on behalf of or as a surrogate for a person prevented from obtaining a permit.

        The department has determined that the decision to issue a permit to hold controlled exotic species should take into account an applicant’s history of violations involving harmful or potentially harmful fish, shellfish, and aquatic plants, major violations of the Parks and Wildlife Code (Class B misdemeanors, Class A misdemeanors, and felonies), violations of Penal Code, §37.10 (which creates the offenses relating to falsification and tampering governmental records); and Lacey Act violations. The department reasons that it is appropriate to deny the privilege of possessing controlled exotic species for any purposes to persons who exhibit a demonstrable disregard for agency regulations. 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 conservation 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 needs only to 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 or allow a person so convicted to engage in permitted activities as an employee or assistant of a permittee. 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.

        A department action taken as a result of an adjudicative status listed in the proposed new section would not be automatic, but within the discretion of the department. Factors that may be considered by the department 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 current time; 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 or employee of the applicant, or both; the accuracy of information provided by the applicant or employee of the applicant; whether the applicant agreed to any special provisions recommended by the department as conditions; and other aggravating or mitigating factors.

        The proposed new subsection also would allow the department to deny permit renewal to any person not in compliance with applicable reporting or recordkeeping requirements, which is authorized under the provisions of current §57.120.

        Additionally, the proposed new provision also would provide for department determination of the duration of denial or refusal under the proposed new, not to exceed five years. The department does not intend for a refusal to issue or renew permit or disqualification for participation in permitted activities to be permanent; therefore, the proposed new subsection would allow the flexibility to impose a specific duration of denial, not to exceed five years.

        Proposed new subsection (b) would recapitulate the provisions of current §57.122, concerning Permit Denial Review, with several substantive changes. The current rule requires the department to conduct a review within 10 days of receiving a request for review. The proposed new subsection would require the department to establish a date and time for the review within 10 working days of receiving a request for review and require the department to conduct the review within 30 days of the date of request, unless another date is selected by mutual agreement. The proposed new subsection also eliminates references to the specific titles of review panelists and instead would simply require panelists to be agency managers with relevant experience or knowledge.

        Proposed new §57.125, concerning Reporting, Recordkeeping, and Notification Requirements, would establish the requirements for permit holder with respect to required records, reports, and notifications.

        Proposed new §57.125(a)  would provide a cross-reference to proposed new §57.118, concerning Special Provisions – Water Spinach, which prescribes the reporting, recordkeeping, and notification requirements for holders of water spinach culture facility permits.

        Proposed new §57.125(b) would prescribe reporting requirements for various classes of controlled exotic permit holders. Current §57.123(a) requires permit holders to account for importation, possession, transport, sale, transfer or other disposition of any harmful or potentially harmful exotic species handled by the permittee, which in general provide useful information to the department but do not address the nuances of the various types of controlled exotic species permits currently issued or contemplated by the proposed new rules. The proposed new section would, among other things tailor reporting requirements for the various classes of permits in order to provide the department with pertinent information and relieve permit holders, where possible, from having to track and report data that is irrelevant to the interests of the department.

        Proposed new §57.125(b)(1) would require all reports to be submitted on department forms or in a format prescribed by the department, as applicable, which is an express or implied requirement of current rules regarding reports throughout the subchapter.

        Proposed new §57.125(b)(2) would require annual reports to be submitted by January 30 of the year following the calendar year for which the permit was issued. The current deadline is January 10; however, the department believes that moving the deadline to a later date will facilitate compliance and administration by reducing time management conflicts resulting from the holiday season.

        Proposed new §57.125(b)(3)(A) consists of the contents of current §57.123(a), with a clarification of the requirements for commercial aquaculture facility permit holders to the effect that reports must account for the quantity or weight of the controlled exotic species for each reportable activity, which is necessary for consistency with the requirements of proposed new §57.121 discussed earlier in this preamble.

         Proposed new §57.125(b)(3)(B) would exempt holders of an commercial aquaculture facility permit authorizing aquaculture and sale of tilapia from the annual reporting requirement, which is necessary because tilapia are able to reproduce in captivity, which makes population calculations problematic if not impossible.

        Proposed new §57.125(b)(4) would establish the annual reporting requirements for holders of controlled exotic species permits for biological control production. The annual report for this class of permit holder would consist of values for host plant production, biological control agent production, number and locations of introduced organisms, collections and introductions, and number of sales if applicable, which is necessary for the department to effectively monitor activities with the potential to result in negative consequences for native organisms and ecosystems in the event or escape or release.

        Proposed new §57.125(b)(5) would prescribe the annual reporting requirements for the holders of a research permit. Researchers would be required to provide a description of research activities conducted for each species listed on the permit rather than the information required under current §57.123(a). The department has determined that the most useful information with respect to research activities is the extent to which the research benefits indigenous species or ecosystems and/or provides insight on ecology, risks, impacts, or management approaches for controlled exotic species.

        Proposed new §57.125(b)(6) would establish the annual reporting requirements for the holders of a controlled exotic species permit authorizing zoological display. The proposed new rule would require a permit holder to accounting for all controlled species in possession, obtained, transferred, or dispatched during the permit year, which would be less burdensome than the current standard and more consistent with the parameters of zoological display activities.

        Proposed new §57.125(b)(7) would establish the annual reporting requirements for various types of limited special purpose controlled exotic species permits.

        Proposed new subparagraph (A) would provide that the annual reporting requirements for persons holding a permit authorizing triploid grass carp sale for private pond stocking would be the same as the reporting requirements for commercial aquaculturists under proposed new §57.125(b)(3)(A), consisting of the total quantity or weight of triploid grass carp for all instances of purchase, transfer, sale, importation, exportation, or other disposition during the permit period. Proposed new subparagraph (B) would waive annual reporting requirements for all other types of limited special purpose permits except as otherwise provided by permit conditions for permits issued for possession, transport, and disposal activities not otherwise authorized by the provisions of proposed new §57.113, concerning General Provisions and Exceptions as provided in §57.114(f)(6), concerning Controlled Exotic Species Permits.

        Proposed new §57.125(c) would prescribe the recordkeeping requirements for various classes of controlled exotic permit holders other than controlled exotic species permits for water spinach. Proposed new paragraph (1) would require the holder of a permit issued under the subchapter to maintain at the facility or record-keeping location and, upon the request of any department employee acting within the scope of official duties during normal business hours, promptly make available for inspection copies of transport invoices for the previous one year (i.e., the current/proposed retention period), permits or other records required by the subchapter, and documentation of current permits or authorizations required by the TDA and TCEQ. Current §57.119(a) requires a copy of the permit to be made available for inspection. The department has determined that the rules should also address required records and reports, which is also addressed in the requirements of proposed new §57.113(o)(3).

        Proposed new §57.125(d) would prescribe the notification requirements for various classes of controlled exotic permit holders other than controlled exotic species permits for water spinach.

        Proposed new §57.125(d)(1) would provide a cross-reference to other provisions of the proposed new rules that prescribe notification requirements for limited special purpose permits for interstate transport transit.

        Proposed new §57.125(d)(2) would require permit holders to notify the department within 24 hours of discovering the escape, release, or discharge of controlled exotic species. Under current rule (§57.119(i), a permit holder is required to notify the department within two hours of discovering the escape, release, or discharge of exotic species. The department has determined that in a notification is not meaningful unless it represents the results of a thorough assessment of an event and that two hours is insufficient for the execution of such an assessment; therefore, the proposed new rule would require notifications to be made 24 hours following discovery of escape, release, or discharge from a facility or during transport.

        Proposed new §57.125(d)(3) would require a permit holder to notify the department in the event that a facility or facility complex appears to be in imminent danger of overflow, flooding, or other circumstance that could result in the escape, release, or discharge of controlled exotic species into public water and begin implementation of an emergency plan, which is a provision of current rule under §57.119(e).

        Proposed new §57.125(d)(4) would require the holder of a permit for controlled exotic species of shrimp to notify the department at least 72 hours prior to, but not more than 14 days prior to harvesting shrimp held under a permit, which is a provision of current rule under §57.119(f).

        Proposed new §57.125(d)(5) would require the holder of a commercial aquaculture facility permit to notify the department not less than 72 hours prior to any instance of the import or export of triploid grass carp. The notification would include the number of grass carp being purchased, the source of grass carp, the ploidy level of grass carp, the final destination of grass carp, the name of the certifying authority who conducted triploid grass carp certification, and the name, address, and exotic species permit number and aquaculture license number (as applicable) of both the transporter and the receiver. With the exception of the reporting of ploidy level, the proposed new section consists of the provisions of current §57.124, concerning Triploid Grass Carp; Sale, Purchase. The department has determined that ploidy data is necessary to appropriately assess activities that have the potential to negatively impact native organisms and ecosystems.

        Proposed new §57.125(d)(6) would specify the notification requirements of the proposed new rules that apply to prospective modifications of commercial aquaculture facilities, zoological display or research facilities (when live controlled exotic species are possessed), and biological control production facilities. The affected permit holders would be required to notify the department at least 14 days prior to any modifications that would affect methods of preventing escape, discharge, release, discharge of water/wastewater/waste, or required facility infrastructure. As part of the required notification, permit holders would be required to provide photographs, maps, and diagrams of the prospective modifications. The proposed new paragraph would also provide for inspection at the department’s discretion, which is a restatement of existing inspection authority under current §57.119(b) and numerous other provisions of the proposed new rules.

        Proposed new §57.126, concerning Discontinuation of Permitted Activities; Sale or Transfer of Permitted Facility, would set forth the powers of the department with regard to compelling a permit holder to cease permit activities and prescribing remedial or terminal directives to prevent or minimize threats to native organisms or ecosystems.

        Proposed new §57.126(a) would establish the department’s authority to order a permit holder in writing to cease possession, importation, exportation, sale, purchase, transportation, propagation, or culture of controlled exotic species and prescribe a disposition protocol in accordance with the provisions of proposed new §57.113(m), concerning General Provisions and Exceptions. The proposed new subsection would provide for three circumstances under which cessation of permit activities could be ordered by the department. First, cessation could be ordered if the department determines that there is an imminent risk of escape, release, or discharge of controlled exotic species. Second, cessation could be ordered if a required permit, license, authorization, or exemption is revoked or suspended by the TCEQ or the TDA. Third, cessation could be ordered if any of the required permits, licenses, authorizations, or exemptions have expired or are otherwise no longer valid. The department has determined that the enumerated circumstances represent situations in which the intervention of the department is critical to prevent damages to public resources.

         Proposed new §57.126(b) would prescribe the actions required of a permit holder in the event that the permit holder no longer desires to engage in permitted activities. The proposed new subsection would require’ permit holders who intend to discontinue permitted activities to notify the department of that intent at least 14 days prior to discontinuation of permitted activities or permit expiration. Current §57.119(c) requires the immediate lawful sale, transfer, or destruction of all controlled exotic species in the permit holder’s possession and notification of the department within 14 days of cessation of permitted activities. The proposed new subsection would eliminate the current requirement for immediate destruction or transfer of inventory in possession upon discontinuation and replace it with a requirement that such destruction or transfer be effected to prior to permit expiration date or the expected date that permitted activities cease, as reported to the department. The proposed rule also would stipulate that that a final report that is compliant with the provisions of proposed new §57.125 must submitted to the department within 30 days of discontinuation of activities.

         Proposed new §57.126(c) would set forth the actions required of a permit holder in the event that the permit holder intends to sell a facility and controlled exotic species within the facility. The proposed new subsection would require permit holders who intend to sell a permitted facility to notify the department of that intent at least 14 days prior to the expected closing date and again, in writing, with 72 hours of finalizing the sale. Current §57.119(l) requires immediate notification of the department in the event of a change of ownership of a permitted facility. Rather than requiring immediate notification, the proposed new subsection would require notification of intent to sell at least 14 days in advance of expected closing date to ensure the department is prepared to accommodate transitional operation needs in accordance with the provisions of proposed new §57.126(d). The proposed new subsection also would require the permit holder to notify the department within 72 hours of finalizing the sale of the facility, which would include the name, address, and phone number of the purchaser.

         Proposed new §57.126(d) would provide for the transitional operation of a facility for the period of time between a change in ownership and the acquisition of a valid controlled exotic species permit by the new owner. The proposed new subsection would allow permitted operations to continue provided the facility is in compliance with the provisions of the subchapter, the new owner has submitted an application for a controlled exotic species permit and has obtained or is in the process of obtaining required TCEQ and TDA permits, the department has authorized continued operation in writing, pending approval or denial of permits required by TCEQ and TDA. In the case of commercial aquaculture, existing stocks may be sold to the new owner along with the facility. The proposed new provision is intended to facilitate changes in ownership with minimal disruptions while continuing to ensure lawful operation.

        Proposed new §57.127, concerning Memorandum of Understanding between the Texas Parks and Wildlife Department, the Texas Commission on Environmental Quality, and the Texas Department of Agriculture, would consist of the contents of current §57.135, which is being relocated for organizational purposes.

        Proposed new §57.128, concerning Violations and Penalties, would consist of the provisions of current §57.137, concerning Penalties, retitled to clarify that the section applies to violations as well as penalties and reworded to specifically tie the penalties for criminal conduct to the actions of a person.

2. Fiscal Note.

        Ken Kurzawski, Manager, Information and Regulations in the Inland Fisheries Division, has determined that for each of the first five years the proposed rules are in effect, there will be no fiscal implications to state and local governments as a result of enforcing or administering the rules as proposed, as department personnel currently allocated to the administration and enforcement of controlled exotic species regulations will continue to administer and enforce the rules as part of their current duties using current resources.

3. Public Benefit/Cost Note.

        Mr. Kurzawski 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 rule as proposed will be rules that are more comprehensive, better organized, and user-friendly, which will enhance and promote the agency’s efforts to protect native resources and ecosystems from negative biological and economic impacts of harmful and potentially harmful exotic fish, shellfish, and aquatic plants. Furthermore, the permitting burden will be reduced for aquaculturists, pond stocking sellers, and individuals removing certain exotic shellfish and aquatic plants along property shorelines and exceptions will facilitate necessary exotic species management activities not authorized under the current rules.

        There will be minimal adverse economic effects on persons required to comply with the rules as proposed. The aspects of those effects that apply to small and microbusinesses as well as individuals affected by the rules are addressed in the small and microbusiness impact statement later in this preamble; however, there are provisions that do not directly impact small and microbusinesses but do affect persons required to comply with the rules as proposed.

        The proposed new rules would allow persons to possess for noncommercial purposes certain species of tilapia without a permit, provided the tilapia are kept in a recirculating aquaculture system constructed in such a manner that escape, release, or dish discharge of tilapia into public water is not likely to occur. The proposed new rules would require “adequate security measures to be in place to prevent unauthorized removal of species.” The department has determined that there is possible cost to persons required to comply with the proposed provision, which will vary, ranging from no cost (if the location where the tilapia are possessed is a place where people are present continuously, enclosed in a building or other structure, or enclosed by preexisting fencing, if outdoors) to a minimal cost for installing a locking tank cover or a lock on a greenhouse door.

        (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.

        Department records indicate that there are 195 persons currently holding an exotic species permit of some kind other than for the purpose of authorizing possession and introduction into private or public waters of triploid grass carp for noncommercial purposes. To ensure that this analysis captures all small businesses, microbusiness, and rural communities that might be affected by the proposed rules, the department assumes that all permit holders are small or microbusinesses. Therefore, the department has prepared the economic impact statement and regulatory flexibility analysis described in Government Code, Chapter 2006.

        The proposed new rules would provide for the department to prescribe a disposition protocol for persons not legally permitted to possess or continue to possess controlled exotic species permits. Should the department have to implement the disposition protocol prescribed by the department due to noncompliance, these persons would be required to bear the department’s costs associated with the destruction, transfer, and disposal of controlled exotic species in the person’s possession. The department has determined that the costs to the department associated with the destruction, transfer, and disposal of controlled exotic species under the circumstances contemplated by the proposed new rules could range from minimal cost to several hundred to many thousands of dollars, depending on the scale involved. However, the proposed new requirement would apply exclusively to persons who possess of controlled exotic species in violation of the subchapter, who have been refused permit renewal on the basis of criminal violations set forth in the proposed new rules, or who cease or discontinue regulated activities and fail to properly destroy or transfer controlled exotic species in their possession as provided by a disposition protocol prescribed by the department under the proposed rules, requiring the department to implement the disposition protocol. The department considered several alternatives to the proposed provisions. The department considered proposing no provisions regarding remediation costs. That alternative was rejected because the threat posed by controlled exotic species to native systems is compelling, the department does not have the resources to undertake remediation costs and does not believe that the public should bear those costs, and in any event, the potential cost of compliance with the proposed provision in all cases is predicated on the loss of permit privileges as a result of unlawful activity. The department also considered proposing some sort of bonding process to be required of all permittees in order to provide assurance that remediation activities necessary to prevent threats to public resources and native ecosystems could be undertaken in the event that a permittee could no longer lawfully possess controlled exotic species. That alternative was rejected because the preponderance of persons who possess exotic species do so lawfully, and the department concluded that requiring the posting of a bond by all permittees would be burdensome and could preclude many individuals from obtaining a permit.

         The proposed new rules would require all facilities to have an emergency plan in place to prevent escape, release, or discharge of controlled exotic species into public water during a natural event such as a hurricane or flood. Facilities within the current exotic species exclusion zone are already required to have an emergency plan under current rules; therefore, the emergency plan component of the proposed new rules would apply only to the current 57 facilities and any new facilities outside the exotic species exclusion zone. The department has determined that a facility emergency plan can be created at minimal expense using a department form, the permit holder’s professional expertise and other widely available resources and does not require the retention of outside professional expertise or services.

        The department considered several alternatives to the proposed new provisions. The department considered continuing with the status quo (i.e., requiring an emergency plan only for facilities within the exotic species exclusion zone). However, that alternative was rejected because the proposed new provision is appropriate from a risk-analysis perspective. The department believes that all facilities should be prepared to act proactively to prevent unintentional discharge of controlled exotic species in the event of natural phenomena that threaten the biosecurity of the facility. The department also considered imposing emergency plans on a case-by-case basis, which was rejected because that approach would be administratively complex, and the current standard is proven to be effective.

         The proposed new rules would require all facilities to train employees and staff to understand permit requirements, including activation of the emergency plan. The training requirement of the proposed new rules would apply to all facilities. The department has also determined that because permit holders must train employees to perform facility operation, which likely includes emergency procedures, and those operations must be conducted in compliance with the subchapter, employees are likely already in some form or fashion trained to understand permit requirements and implement emergency procedures and additional training effort to comply with the proposed new rules would be minimal. The department considered leaving the training of staff and employees unaddressed. This alternative was rejected because the goal of the proposed training requirement is to create the minimum assurance that persons employed at facilities are knowledgeable about what the permit requirements of the facility are, including required maintenance of measures in place, implementation of the emergency plan and reporting of escapes to the department in order to minimize if not prevent accidental injurious releases of controlled fish, shellfish, or aquatic plants. The department also considered prescribing specific training requirements. This alternative was rejected because the department believes the general nature of the proposed new provision is sufficient to adequately address prevention of escape of controlled exotic species and impress upon the regulated community the importance of training employees without having to compel specific instructional components.

        The department has determined that there will be direct impacts on rural communities as a result of the proposed new rules.

        (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) The department has determined that the proposed rules are in compliance with Government Code §505.11 (Actions and Rule Amendments Subject to the Coastal Management Program).

        (G) 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) 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) create a new regulation (by repealing current rules and replacing them with new rules, although the new rules are almost identical to current rules in scope and effect);

                 (6) repeal existing regulations;

                 (7) expand existing regulations (by requiring an emergency plan for all facilities; by requiring training of employees on permit and regulatory requirements; by requiring department approval of stocking of tilapia in private ponds within a designated Conservation Zone where impacts of escapes on native species are likely; and by adding selected species to the controlled exotic species list).

                 (8) limit existing regulations (by reducing the record retention time for water spinach documentation from two years to one; by instituting more flexible rules regarding the execution, possession, and retention of water spinach transport invoices; by eliminating specific infrastructure specifications in favor of a generalized standard of functionality; by allowing additional species of tilapia to be used; by providing for multi-year permits for commercial aquaculture; by reducing the reporting burden for commercial aquaculturists; by eliminating the facility requirement for individuals purchasing rather than culturing tilapia and triploid grass carp for sale for pond stocking; and by creating exceptions for lakefront landowners and other affected entities to deal with nuisance shellfish and aquatic plants without a permit).

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

5. Rule Text.

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

                 (1) Active partner — A governmental, quasi-governmental, or non-governmental organization or other entity that is currently engaged in department-coordinated efforts to monitor and/or manage controlled exotic species in Texas as authorized by a letter of approval from the Director of the Inland Fisheries Division or Coastal Fisheries Division (or their designee) of the Texas Parks and Wildlife Department, as appropriate.

                 (2) Agent — A person designated to conduct activities on behalf of any person or permit holder who is authorized by a controlled exotic species permit or other provision of this subchapter to conduct those activities. For the purposes of this subchapter, the term ’permit holder’ includes their agent.

                 (3)[(1)] Aquaculture—As defined by Agriculture Code, §134.001(4)[or fish farming — The business of producing and selling cultured species raised in private facilities].

                 [(2) Aquaculturist or fish farmer — Any person engaged in aquaculture.]

                 [(3) Aquaculture facility — The property, including all drainage ditches and private facilities where cultured species are produced, held, propagated, transported or sold.]

                 [(4) Aquaculture complex — A group of two or more separately owned aquaculture facilities located at a common site and sharing privately owned water diversion or drainage structures.]

                 (4)[(5)] Beheaded — The complete detachment of the head (that portion of the fish from the gills to the nose; that portion of the shrimp called the carapace) from the body.

                 [(6) Certified Inspector — An employee of the Texas Parks and Wildlife Department who has satisfactorily completed a department approved course in clinical analysis of shellfish.]

                 [(7) Cultured species — Aquatic plants, fish, or shellfish raised under conditions where at least a portion of their life cycle is controlled by an aquaculturist.]

                 (5) Biological control agent — a natural enemy or predator of a plant or animal that can be used to control the growth, spread, or deleterious impact of that plant or animal. 

                  (6)[(8)] Clinical Analysis Checklist — A department-approved[TPWD] form specifying sampling protocols and listing certain characteristics that[which] may constitute manifestations of shrimp disease.

                 (7) Commercial aquaculture facility — As defined in §134.001(7) of the Texas Agriculture Code.

                 (8) Common carrier — A person or entity that is:

                         (A) in the business of shipping goods or products; and

                         (B) not a party to a transaction under a permit issued under this subchapter.

                 (9) Controlled exotic species — Any species listed in §57.112 of this title (relating to Exotic Harmful or Potentially Harmful Fish, Shellfish, and Aquatic Plants).

                 (10) Controlled exotic species permit — Any permit issued under this subchapter that authorizes the import, export, propagation, possession, purchase, sale, and/or transport of a controlled exotic species.

                 (11) Conveyance — Any means of transporting persons, goods, or equipment on the water.

                 (12)[(9)] Department — The Texas Parks and Wildlife Department or a designated employee of the department.

                 (13)[(10)] Director — The executive director of the Texas Parks and Wildlife Department.

                 (14)[(11)] Disease — Contagious pathogens or injurious parasites that[which] may be a threat to the health of natural populations of aquatic organisms.

                 (15)[(12)] Disease-Free — A status, based on the results of an examination conducted by a department approved shellfish disease specialist that certifies a group of aquatic organisms as being free of disease.

                 (16) Disease inspector — An employee of the department who is trained to perform clinical analysis of shrimp disease.

                 (17) Disease specialist—A third-party person approved by the department that possesses the education and experience to identify shellfish disease, such as a degree in veterinary medicine or a Ph.D. specializing in shellfish disease.

                 [(14) Gutted — The complete removal of all internal organs and entrails.]

                 [(15) Harmful or potentially harmful exotic fish-]

                         [(A) Lampreys: Family Petromyzontidae — all species except Ichthyomyzon castaneus and I. gagei;]

                         [(B) Freshwater Stingrays: Family Potamotrygonidae — all species;]

                         [(C) Arapaima: Family Arapaimidae — Arapaima gigas;]

                         [(D) South American Pike Characoids: Family Acestrorhynchidae — all species of genus Acestrorhynchus;]

                         [(E) African Tiger Fishes: Family Alestidae — all species of genus Hydrocynus;]

                         [(F) Piranhas: Family Characidae (Subfamily Serrasalminae) — all species of the genera Catoprion, Pristobrycon, Pygocentrus, Pygopristis, and Serrasalmus;]

                         [(G) Dogtooth characins (Payara and vampire tetras): Family Cynodontidae — all species of genera Hydrolycus, Rhaphiodon, and Cynodon;]

                         [(H) Dourados: Family Characidae (Subfamily Salmininae) — all species of genus Salminus;]

                         [(I) South American Tiger Fishes: Family Erythrinidae — all species;]

                         [(J) South American Pike Characids: Family Ctenoluciidae — all species of genera Ctenolucius and Boulengerella;]

                         [(K) African Pike and Lute Fishes: Families Hepsetidae and Citharinidae — all species;]

                         [(L) Electric Eels: Family Gymnotidae — Electrophorus electricus;]

                         [(M) Carps and Minnows: Family Cyprinidae — all species and hybrids of species of genera: Aspius, Pseudaspius, and Aspiolucius (Asps); Abramis, Blicca, Megalobrama, and Parabramis (Old World Breams); Hypophthalmichthys (Bighead and Silver Carp); Mylopharyngodon (Black Carp); Ctenopharyngodon (Grass Carp); Cirrhinus; Thynnichthys; Gibelion (Catla); Leuciscus (Eurasian Daces); Tor, and Neolissochilus hexagonolepsis (Barbs and Mahseers); Rutilus (Roaches); Scardinius (Rudds); Elopichthys (Yellowcheek); Catlocarpio (Giant Barb); all species of the genus Labeo except Labeo chrysophekadion (Black Sharkminnow);]

                         [(N) Walking Catfishes: Family Clariidae — all species;]

                         [(O) Electric Catfishes: Family Malapteruridae — all species;]

                         [(P) South American Parasitic Candiru Catfishes: Family Trichomycteridae — all species;]

                         [(Q) Pike Killifish: Family Poeciliidae — Belonesox belizanus;]

                         [(R) Marine Stonefishes: Family Synanceiidae — all species;]

                         [(S) Tilapia: Family Cichlidae — all species of genera Tilapia, Oreochromis, and Sarotherodon;]

                         [(T) Asian Pikeheads: Family Osphronemidae — all species of the genus Luciocephalus;]

                         [(U) Snakeheads: Family Channidae — all species;]

                         [(V) Perch: Family Percidae — all species of the genus Sander except Sander canadensis and S. vitreus and hybrids between these two species and all species of genus Gymnocephalus;]

                         [(W) Nile Perch: Family Latidae — all species of genus Lates;]

                         [(X) Seatrouts and Corvinas: Family Sciaenidae — all species of genus Cynoscion except Cynoscion arenarius, C. nebulosus, and C. nothus;]

                         [(Y) Whale Catfishes: Family Cetopsidae — all species;]

                         [(Z) Airsac Catfishes: Family Heteropneustidae — all species;]

                         [(AA) Swamp Eels, Rice Eels, or One-Gilled Eels: Family Synbranchidae — all species;]

                         [(BB) Freshwater Eels: Family Anguillidae — all species except Anguilla rostrata;]

                         [(CC) Round Gobies: Family Gobiidae — all species of genus Neogobius;]

                         [(DD) Temperate Basses: Family Moronidae — all species except Morone chrysops, M. mississippiensis, and M. saxatilis and hybrids of these species; and]

                         [(EE) Temperate Perches: Family Percichthyidae — all species.]

                 [(16) Harmful or potentially harmful exotic shellfish-]

                         [(A) Crayfishes: Family Parastacidae — all species;]

                         [(B) Mitten Crabs: Family Varunidae — all species of genus Eriocheir;]

                         [(C) Zebra Mussels: Family Dreissenidae — all species of genus Dreissena;]

                         [(D) Penaeid Shrimp: Family Penaeidae — all species of genera Penaeus, Litopenaeus, Farfantepenaeus, Fenneropenaeus, Marsupenaeus, and Melicertus except Litopenaeus setiferus, Farfantepenaeus aztecus, and F. duorarum;]

                         [(E) Oysters: Family Ostreidae — all species except Crassostrea virginica and Ostrea equestris; and]

                         [(F) Applesnails and Giant Rams-Horn Snails: Family Ampullariidae — all species of the genera Marisa and Pomacea except Pomacea bridgesi (spiketop applesnail).]

                 [(17) Harmful or potentially harmful exotic plants-]

                         [(A) Dotted Duckweed: Family Araceae — Landoltia punctata;]

                         [(B) Salvinia: Family Salviniaceae — all species of genus Salvinia;]

                         [(C) Water hyacinth: Family Pontederiaceae — Eichhornia crassipes (floating water hyacinth) and E. azurea (rooted water hyacinth);]

                         [(D) Waterlettuce: Family Araceae — Pistia stratiotes;]

                         [(E) Hydrilla: Family Hydrocharitaceae — Hydrilla verticillata;]

                         [(F) Lagarosiphon: Family Hydrocharitaceae — Lagarosiphon major;]

                         [(G) Eurasian Watermilfoil: Family Haloragaceae — Myriophyllum spicatum;]

                         [(H) Alligatorweed: Family Amaranthaceae — Alternanthera philoxeroides;]

                         [(I) Paperbark: Family Myrtaceae — Melaleuca quinquenervia;]

                         [(J) Torpedograss: Family Poaceae — Panicum repens;]

                         [(K) Water spinach (also called ong choy, rau mong and kangkong): Family Convolvulaceae — Ipomoea aquatica.]

                         [(L) Ambulia (Asian marshweed): Family Scrophulariaceae — Limnophila sessiliflora;]

                         [(M) Arrowleaf False Pickerelweed: Family Pontederiaceae — Monochoria hastate;]

                         [(N) Heartshaped False Pickerelweed: Family Pontederiaceae — Monochoria vaginalis;]

                         [(O) Duck-lettuce: Family Hydrocharitaceae — Ottelia alismoides;]

                         [(P) Wetland Nightshade: Family Solanaceae — Solanum tampicense;]

                         [(Q) Exotic Bur-reed: Family Sparganiaceae — Sparganium erectum;]

                         [(R) Brazilian Peppertree: Family Anacardiaceae — Schinus terebinthifolius; and]

                         [(S) Purple Loosestrife: Family Lythraceae — Lythrum salicaria.]

                 (18) Dock or pier — a structure built over and/or floating on water that is used to provide access to water and/or for the mooring of boats.

                 (19) Emergency — A situation or event beyond the control of any person, including but not limited to a natural disaster, power outage, or fire. 

                 (20) Exotic shrimp exclusion zone — That part of the state that is both south of SH 21 and east of I-35, but not including Brazos County.

                 (21)[(13)] Exotic species — Any aquatic plant, fish, or shellfish [not normally found in public water ofnonindigenous to this state.

                 (22) Facility — Infrastructure including drainage structures at a location where controlled exotic species are possessed, propagated, cultured, or sold under a controlled exotic species permit excluding private waters permitted for triploid Grass Carp stocking in accordance with §57.116 of this title (relating to Special Provisions – Triploid Grass Carp).

                 (23) Facility complex — A group of two or more facilities located at a common site and sharing water diversion or drainage structures.

                 (24) Gill-cutting — Cutting through the base of the gills on the underside of the fish. 

                 [(18) Harmful or potentially harmful exotic species exclusion zone — That part of the state that is both south of SH 21 and east of I-35, but not including Brazos County.]

                 [(19) Immediately — Without delay; with no intervening span of time.]

                 (25)[(20)] Manifestations of disease—Include,[Manifestations of disease include,] but are not limited to, one or more of the following: heavy or unusual predator activity, empty guts, emaciation, rostral deformity, digestive gland atrophy or necrosis, gross pathology of shell or underlying skin typical of viral infection, fragile or atypically soft shell, gill fouling, or gill discoloration.

                 (26)[(21)] Nauplius (nauplii, if plural)[or nauplii] — A larval crustacean (phylum Arthropoda, subphylum Crustacea)having no trunk segmentation and only three pairs of appendages.

                 [(22) Operator — The person responsible for the overall operation of a wastewater treatment facility.]

                 [(23) Place of business — A permanent structure on land where aquatic products or orders for aquatic products are received or where aquatic products are sold or purchased.]

                 (27)[(24)Post-larva (post-larvae, if plural)[Post-larvae] — A juvenile crustacean (phylum Arthropoda, subphylum Crustacea) having acquired a full complement of functional appendages.

                 [(25) Private facility — A pond, tank, cage, or other structure capable of holding cultured species in confinement wholly within or on private land or water, or within or on permitted public land or water.]

                 [(26) Private facility effluent — Any and all water which has been used in aquaculture activities.]

                 (28)[(27)] Private pond — A pond or[, tank,] lake[, or other structure] capable of holding exotic[cultured] species of tilapia and/or triploid grass carp in confinement wholly within [or on] private land for non-commercial purposes.

                 [(28) Public aquarium — An American Association of Zoological Parks and Aquariums accredited facility for the care and exhibition of aquatic plants and animals.]

                 (29) Public water[waters]—As defined by Parks and Wildlife Code, 66.015, the bays,[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.

                 (30) Recirculating aquaculture system — A system for culturing fish that treats or reuses all, or a major portion of the water and is designed for no direct offsite discharge of water.

                 (31)[(30)] Quarantine condition—Separation[Confinement] of exotic shellfish from other stocks of shellfish within a facility such that neither the shellfish nor the water in which they are or were maintained comes into contact with water in the state or [and] with other fish and/or shellfish.

                 [(31) Shellfish disease specialist — A person with a degree in veterinary medicine or a Ph.D. who specializes in disease of shellfish.]

                 (32) Tilapia and triploid grass carp regulatory zones — Geographic conservation priority zones identified by the department where special provisions apply. Zone designations by county are as follows: 

                         (A) Conservation zone. The conservation zone shall include the following counties: Andrews, Archer, Armstrong, Bailey, Bandera, Baylor, Bell, Bexar, Blanco, Borden, Brewster, Briscoe, Brown, Burnet, Callahan, Carson, Castro, Childress, Clay, Cochran, Coke, Coleman, Collingsworth, Comal, Concho, Cottle, Crane, Crockett, Crosby, Culberson, Dallam, Dawson, Deaf Smith, Dickens, Donley, Ector, Edwards, El Paso, Fisher, Floyd, Foard, Gaines, Garza, Gillespie, Glasscock, Gray, Hale, Hall, Hansford, Hardeman, Hartley, Haskell, Hays, Hemphill, Hockley, Howard, Hudspeth, Hutchinson, Irion, Jeff Davis, Jones, Kendall, Kent, Kerr, Kimble, King, Kinney, Knox, Lamb, Lampasas, Lipscomb, Llano, Loving, Lubbock, Lynn, Martin, Mason, Maverick, McCulloch, Medina, Menard, Midland, Mills, Mitchell, Moore, Motley, Nolan, Ochiltree, Oldham, Parmer, Pecos, Potter, Presidio, Randall, Reagan, Real, Reeves, Roberts, Runnels, San Saba, Schleicher, Scurry, Shackelford, Sherman, Stephens, Sterling, Stonewall, Sutton, Swisher, Taylor, Terrell, Terry, Throckmorton, Tom Green, Travis, Upton, Uvalde, Val Verde, Ward, Wheeler, Wichita, Wilbarger, Williamson, Winkler, Yoakum, Young, and Zavala.

                         (B) Stocking zone. The stocking zone shall include the following counties: Anderson, Angelina, Aransas, Atascosa, Austin, Bastrop, Bee, Bosque, Bowie, Brazoria, Brazos, Brooks, Burleson, Caldwell, Calhoun, Cameron, Camp, Cass, Chambers, Cherokee, Collin, Colorado, Comanche, Cooke, Coryell, Dallas, Delta, Denton, DeWitt, Dimmit, Duval, Eastland, Ellis, Erath, Falls, Fannin, Fayette, Fort Bend, Franklin, Freestone, Frio, Galveston, Goliad, Gonzales, Grayson, Gregg, Grimes, Guadalupe, Hamilton, Hardin, Harris, Harrison, Henderson, Hidalgo, Hill, Hood, Hopkins, Houston, Hunt, Jack, Jackson, Jasper, Jefferson, Jim Hogg, Jim Wells, Johnson, Karnes, Kaufman, Kenedy, Kleberg, La Salle, Lamar, Lavaca, Lee, Leon, Liberty, Limestone, Live Oak, Madison, Marion, Matagorda, McLennan, McMullen, Milam, Montague, Montgomery, Morris, Nacogdoches, Navarro, Newton, Nueces, Orange, Palo Pinto, Panola, Parker, Polk, Rains, Red River, Refugio, Robertson, Rockwall, Rusk, Sabine, San Augustine, San Jacinto, San Patricio, Shelby, Smith, Somervell, Starr, Tarrant, Titus, Trinity, Tyler, Upshur, Van Zandt, Victoria, Walker, Waller, Washington, Webb, Wharton, Willacy, Wilson, Wise, Wood, and Zapata.

                 (33)[(32)] Triploid grass [or black] carp — A grass carp (Ctenopharyngodon idella) [or black carp (Mylophryngodon piceus)] that has been certified by the United States Fish and Wildlife Service as having 72 chromosomes and as being functionally sterile.

                 (34)[(33)] Waste—As defined in[Waste shall have the same meaning as in Chapter 26, §26.001(6) [of the Texas Water Code].

                 (35)[(34)] Water in the state—As defined in Water Code,[Water in the state shall have the same meaning as in Chapter 26,] §26.001(5) [of the Texas Water Code].

                 (36)[(35)] Wastewater treatment facility — All contiguous land and fixtures, structures and associated infrastructure including drainage structures[or appurtenances] used for treating wastewater pursuant to a valid permit issued by the Texas Commission on Environmental Quality.

        §57.112. Exotic Harmful or Potentially Harmful Fish, Shellfish, and Aquatic Plants.

                 (a) The exotic species listed in this section are designated as harmful or potentially harmful, including any hybrid of a species, subspecies, eggs, juveniles, seeds, or reproductive or regenerative parts of any species.

                 (b) Scientific reclassification or change in nomenclature of taxa at any level in taxonomic hierarchy will not, in and of itself, result in removal from the list of exotic harmful or potentially harmful species in this section.

                 (c) The following are harmful or potentially harmful exotic species, listed alphabetically and by family: 

                         (1) Fishes.

                                  (A) Family Acestrorhynchidae (South American pike characoids) — all species of genus Acestrorhynchus; 

                                  (B) Family Alestiidae (African tiger fishes) — all species of genus Hydrocynus; 

                                  (C) Family Anguillidae (freshwater eels) — all species of this family except Anguilla rostrata (American eel); 

                                  (D) Family Centropomidae (Nile perch) — all species of genus Lates;

                                  (E) Family Cetopsidae (whale catfishes) — all species of this family;  

                                  (F) Family Characidae (dourados and piranhas): 

                                          (i) Dourados — all species of genus Salminus; and

                                          (ii) Piranhas — all species of genera Catoprion, Pristobrycon, Pygocentrus, Pygopristis, and Serrasalmus;

                                  (G) Family Channidae (snakeheads) — all species of this family;

                                  (H) Family Cichlidae (tilapia) — all species of genera Coelotilapia, Coptodon Heterotilapia, Oreochromis, Pelmatolapia, Sarotherodon, and Tilapia;

                                  (I) Family Citharinidae, subfamily Distichodontinae (African lute fishes) — all species of genera Belonophago, Euganthichthys, Ichthyborus, Mesoborus, Phago, and Paraphago;  

                                  (J) Family Clariidae (walking catfishes) — all species of this family; 

                                  (K) Family Ctenoluciidae (South American pike characids) — all species of genera Ctenolucius and Boulengerella; 

                                  (L) Family Cynodontidae (dogtooth characins: payara and vampire tetras) — all species of genera Cynodon, Hydrolycus, and Rhaphiodon;

                                  (M) Family Cyprinidae (carps and minnows): 

                                          (i) Asps — all species of genera Aspius, Aspiolucius, and Pseudaspius; 

                                          (ii) Old World breams — all species of genera Abramis, Blicca, Megalobrama, and Parabramis;                                                 

                                          (iii) Bighead, silver, and largescale carp — all species of genus Hypophthalmichthys; 

                                          (iv) Black carp — all species of genus Mylopharyngodon; 

                                          (v) Grass carp — all species of genus Ctenopharyngodon; 

                                          (vi) Catla — all species of genera Cirrhinus, Thynnichthys, and Gibelion; 

                                          (vii) European daces — all species of genus Leuciscus;

                                          (viii) Barbs and mahseers — all species of genera Tor and Neolissochilus; 

                                          (ix) Roaches — all species of genus Rutilus; 

                                          (x) Rudds — all species of genus Scardinius; 

                                          (xi) Yellowcheek — all species of genus Elopichthys; 

                                          (xii) Giant barb — all species of genus Catlocarpio; 

                                          (xiii) Sharkminnows — all species of genus Labeo except L. chrysophekadion (black sharkminnow); and

                                          (xiv) Stone moroko — Pseudorasbora parva;

                                  (N) Family Electrophoridae (electric eels) — Electrophorus electricus (electric eel);

                                  (O) Family Erythrinidae (trahiras) — all species of this family;

                                  (P) Family Gobiidae (round gobies) — all species of genus Neogobius; 

                                  (Q) Family Hepsetidae (African pike fishes) — all species of this family;

                                  (R) Family Heteropneustidae (airsac catfishes) — all species of this family; 

                                  (S) Family Malapteruridae (electric catfishes) — all species of this family;

                                  (T) Family Moronidae (temperate basses) — all species of this family except Morone chrysops (white bass), M. mississippiensis (yellow bass), and M. saxatilis (striped bass), and hybrids of these species; 

                                  (U) Family Odontobutidae (freshwater sleepers) — Perccottus glenii (Amur sleeper);

                                  (V) Family Osphronemidae (Asian pikeheads) — all species of genus Luciocephalus; 

                                  (W) Family Osteoglossidae (arapaima) — all species of genus Arapaima; 

                                  (X) Family Percichthyidae (temperate perches) — all species of this family; 

                                  (Y) Family Percidae (perch):

                                          (i) Pikeperches — all species of genus Sander except S. canadensis and S. vitreus (sauger and walleye) and hybrids of these species;

                                          (ii) European ruffes — all species of genus Gymnocephalus; 

                                          (iii) European perch (also called redfin) — Perca fluviatilis;

                                  (Z) Family Petromyzontidae (lampreys) — all species of this family except Ichthyomyzon castaneus (chestnut lamprey) and I. gagei (Southern brook lamprey);

                                  (AA) Family Poeciliidae (Pike Killifish) — Belonesox belizanus; 

                                  (BB) Family Potamotrygonidae (freshwater stingrays) — all species of this family;

                                  (CC) Family Sciaenidae (seatrouts and corvinas) — all species of genus Cynoscion except C. arenarius (sand seatrout), C. nebulosus (spotted seatrout), and C. nothus (silver seatrout);

                                  (DD) Family Scorpaenidae (marine stonefishes) — all species of genera Choridactylus, Dampierosa, Erosa, Inimicus, Leptosynanceia, Minous, Pseudosynanceia, Synanceia, and Trachicephalus; 

                                  (EE) Family Siluridae (European and Asian catfishes) — Silurus glanis (Wels catfish);

                                  (FF) Family Synbranchidae (swamp eels, rice eels, or one-gilled eels) — all species of this family; and     

                                  (GG) Family Trichomycteridae (South American parasitic Candiru catfishes) — all species of this family.

                         (2) Shellfish.

                                 (A) Family Ampullariidae (applesnails):

                                          (i) Applesnails — all species of genus Pomacea except P. bridgesi (sometimes also known as P. diffusa; spiketop applesnail); and

                                          (ii) Giant rams-horn snails — all species of genus Marisa; 

                                  (B) Family Dreissenidae (zebra and quagga mussels) — all species of genus Dreissena; 

                                  (C) Family Hydrobiidae (mud snails) — all species of this family;

                                  (D) Family Mytilidae (mussels) — Limnoperna fortunei (golden mussel); 

                                  (E) Family Ostreidae (oysters) — all species of this family except Crassostrea rhizophorae (mangrove oyster), C. virginica (Eastern oyster), Dendostrea frons (frond oyster), Ostrea stentina (dwarf oyster), and O. permollis (sponge oyster);

                                  (F) Family Parastacidae (Southern hemisphere freshwater crayfishes, including redclaw crayfish) — all species of this family;

                                  (G) Family Penaeidae (penaeid shrimps) — all species of genera Farfantepenaeus, Fenneropenaeus, Litopenaeus, Marsupenaeus, Melicertus, and Penaeus, except Litopenaeus setiferus (white shrimp), Farfantepenaeus aztecus (brown shrimp), and F. duorarum (pink shrimp); and

                                  (H) Family Varunidae (mitten crabs) — all species of genus Eriocheir

                         (3) Aquatic Plants.

                                  (A) Family Amaranthaceae (alligatorweed) — Alternanthera philoxeroides;

                                  (B) Family Anacardiaceae (Brazilian peppertree) — Schinus terebinthifolius; 

                                  (C) Family Araceae 

                                          (i) Dotted duckweed — Landoltia punctata;

                                          (ii) Waterlettuce — Pistia stratiotes; 

                                  (D) Family Convolvulaceae (water spinach; also called ong choy, rau mong, and kangkong) — Ipomoea aquatica;

                                  (E) Family Haloragaceae (Eurasian watermilfoil) — Myriophyllum spicatum;

                                  (F) Family Hydrocharitaceae 

                                          (i) Hydrilla — Hydrilla verticillata;

                                          (ii) African elodea (also called Lagarosiphon) — Lagarosiphon major; and

                                          (iii) Duck-lettuce — Ottelia alismoides;

                                  (G) Family Lythraceae (purple loosestrife) — Lythrum salicaria;

                                  (H) Family Menyanthaceae (floating hearts) — Nymphoides cristata (crested floating heart) and N. peltata (yellow floating heart);

                                  (I) Family Myrtaceae (paperbark, also called Melaleuca) — Melaleuca quinquenervia;

                                  (J) Family Plantaginaceae (ambulia, also called Asian marshweed) — Limnophila sessiliflora;

                                  (K) Family Poaceae (torpedograss) — Panicum repens;

                                  (L) Family Pontederiaceae 

                                          (i) Water hyacinths — Eichhornia crassipes (floating water hyacinth) and E. azurea (rooted water hyacinth); and

                                          (ii) False pickerelweeds — all species of genus Monochoria; 

                                  (M) Family Salviniaceae (salvinias) — all species of genus Salvinia;

                                  (N) Family Solanaceae (wetland nightshade, also called aquatic soda apple) — Solanum tampicense; and

                                  (O) Family Typhacea (exotic bur-reed) — Sparganium erectum

        §57.113. General Provisions and Exceptions.

                 (a) Nothing in this subchapter shall be construed to relieve any person of the obligation to comply with any applicable provision of local, state, or federal law. 

                 (b) Except as provided by Parks and Wildlife Code or this subchapter, no person shall: 

                         (1) introduce into public water, possess, import, export, sell, purchase, transport, propagate, or culture any species, hybrid of a species, subspecies, eggs, seeds, or any part of any species defined as a controlled exotic species; or

                         (2) take or possess a live grass carp from public water where grass carp have been introduced under a permit issued by the department, unless the department has specifically authorized removal or the permit is no longer in effect.

                 (c) An active partner may be exempted from the requirement to obtain a controlled exotic species permit under this subchapter, provided they coordinate with the department to seek authorization by a letter of approval of active partner status, and provide a description of proposed engagement in department-coordinated efforts to monitor and/or manage controlled exotic species in Texas and measures to be taken to prevent introduction of controlled exotic species into public water.

                 (d) An employee of the department in the performance of official duties is exempt from the permit requirements of this subchapter. 

                 (e) Any person may possess, import, export, sell, purchase, or transport controlled exotic species of fish or shellfish other than mussels or oysters without a permit provided they are: 

                         (1) killed by gutting, beheading, gill-cutting, or using another means; 

                         (2) frozen; or

                         (3) packaged on ice.

                 (f) Any person may possess, import, export, sell, purchase, or transport controlled exotic species of oysters without a permit provided they are shucked or otherwise removed from their shells. 

                 (g) No person may possess or transport live or dead controlled exotic species of mussels that are attached to or contained within any vessel, conveyance, or dock or pier except that mussels attached to or contained within a vessel may be possessed and transported if the vessel is traveling directly to a service provider for the purposes of removal of the mussels or vessel maintenance or repair after first notifying the department in writing that the vessel will be transported. Notification shall be provided at least 72 hours in advance and shall consist of:

                         (1) expected date of transport; 

                         (2) contact information of person or entity transporting the vessel;

                         (3) vessel registration number; 

                         (4) water body of origin;

                         (5) service provider location and contact information; and

                         (6) water body where the vessel will return after service.

                 (h) A licensed retail or wholesale fish dealer is not required to have a controlled exotic species permit to purchase or possess in the licensed place of business: 

                         (1) live triploid grass carp (Ctenopharyngodon idella) or blue tilapia (Oreochromis aureus), Mozambique tilapia (O. mossambicus), Nile tilapia (O. niloticus), Wami tilapia (O. hornorum), or hybrids of these tilapia species provided that the fish dealer:

                                  (A) obtains the species from a permit holder;

                                  (B) retains a copy of each properly executed transport invoice provided by the permit holder for a period of one year following the invoice date; 

                                  (C) does not propagate or culture the species; and 

                                  (D) does not sell or transfer possession of the species to another person or entity unless the fish have been gutted, beheaded, gill-cut, killed using another means, packaged on ice, or frozen.

                         (2) live Pacific blue shrimp (Litopenaeus stylirostris) or Pacific white shrimp (L. vannamei), provided that:

                                  (A) the place of business is not located within the exotic shrimp exclusion zone described in §57.111 of this title (relating to Definitions); 

                                  (B) the species were obtained from a permit holder;

                                  (C) the fish dealer retains a copy of each properly executed transport invoice provided by the permit holder for a period of one year following the invoice date; and

                                  (D) the fish dealer does not sell or transfer possession of these species to another person or entity unless the shrimp are dead and packaged on ice or frozen.

                 (i) The holder of a controlled exotic species permit may not place into public water, possess, import, export, sell, purchase, transport, propagate, or culture controlled exotic species unless authorized by permit conditions. 

                 (j) The owner or manager of a property or their agent, except as provided in subsection (k) of this section, may without a permit possess and transport for the purpose of disposal controlled exotic species of plants, mussels of the genus Dreissena, or applesnails, provided:

                         (1) the species are physically removed from a private pond, public water adjacent to the property, or the shorelines, docks, or other waterfront infrastructure associated with the property; 

                         (2) mussels or applesnails removed are securely contained in black plastic bags prior to disposal;

                         (3) plants removed are dried fully or securely contained in black plastic bags prior to disposal; and

                         (4) plants are physically removed from public water under a current, approved treatment proposal in accordance with Subchapter L of this chapter (relating to State Aquatic Vegetation Plan).

                 (k) A person operating a mechanical plant harvester or who otherwise physically removes controlled exotic species of plants from public water in exchange for money or anything of value must be the holder of or be listed as an authorized person on a controlled exotic species permit. Removal and disposal of controlled exotic species of plants from public water or private ponds may only be done by means authorized in the permit. 

                 (l) Governmental or quasi-governmental agencies; operators of power generation, water control or water supply facilities, or private water intakes; entities removing garbage from public water bodies; or contractors working on their behalf may without a permit, possess and transport for the purpose of disposal controlled exotic species removed during standard operations, maintenance, or testing provided they are in compliance with best management practices published by the department.

                 (m) Any person may purchase, possess, or transport controlled exotic species of plants as hosts for biological control agents without a permit for the purpose of introduction for management of nuisance aquatic vegetation, provided that: 

                         (1) the identity of the plant species to be managed is confirmed by the department; and 

                         (2) controlled exotic species of plants are:

                                   (A) obtained from the department, a biological control facility permitted under this subchapter, or an active partner, as described in §57.111 of this title (relating to Definitions);               

                                  (B) possessed and transported with a properly executed transport invoice provided by the biological control agent supplier in accordance with §57.121 of this title (relating to Transport of Live Controlled Exotic Species); and 

                                  (C) for public water a permit for introduction of aquatic plants into public water for nuisance aquatic vegetation management must be obtained in accordance with Subchapter C of this chapter (relating to Introduction of Fish, Shellfish and Aquatic Plants) and Subchapter L of this title (relating to Aquatic Vegetation Management). 

                 (n) Specimens of controlled exotic species of mussels or plants may be possessed for educational purposes without a permit if prepared in the following manner:

                         (1) mussels — fully dried or placed into alcohol, formalin, or other preservative; or

                         (2) plants — dried and pressed as herbarium specimens or encased in plastic resin.

                 (o) At the request of any department employee in the performance of official duties, any person, including but not limited to controlled exotic species permit holders, who is in possession of a controlled exotic species shall:

                         (1) allow the take of or provide samples of any controlled exotic species held in possession for purposes of taxonomic or genetic identification and analysis; 

                         (2) furnish any documentation necessary to confirm controlled exotic species identity, the source of controlled exotic species, and eligibility to possess controlled species; 

                         (3) make available for inspection during normal business hours any records required by this subchapter and any retention location, facility, private pond, recirculating aquaculture system, or transportation vehicle or trailer used to conduct activities authorized under this subchapter; and

                         (4) demonstrate that activities are conducted in compliance with the requirements of this subchapter and in such a way as to prevent escape, release, or discharge of controlled exotic species.

                 (p) Disposition Protocols. 

                         (1) The department may prescribe, on a case by case basis, a disposition protocol for destruction, disposal, or transfer of controlled exotic species held by a person who:

                                  (A) is in possession of controlled exotic species in violation of any provision of this subchapter;

                                  (B) is refused permit renewal under the provisions of §57.124 of this title (relating to Refusal to Issue; Review of Agency Decision to Refuse Issuance); or

                                  (C) ceases or discontinues permitted or otherwise authorized activities for any other reason.

                         (2) If the disposition protocol is not implemented within 14 days of notification by the department, the department may implement a prescribed disposition protocol.

                         (3) In the event that a disposition protocol is implemented by the department, the person is responsible for all costs associated with the destruction, disposal, or transfer of controlled exotic species held in the facility.

        §57.114. Controlled Exotic Species Permits.

                 (a) Water spinach Culture. Controlled exotic species facility permits may be issued for culture, transport, and sale of water spinach, in accordance with the provisions of this subchapter and §57.118 of this title (relating to Special Provisions – Water Spinach).

                 (b) Commercial Aquaculture Facility Permits. 

                         (1) Controlled exotic species facility permits may be issued for commercial aquaculture, in accordance with the provisions of this subchapter, only for the following species:

                                  (A) Triploid grass carp (Ctenopharyngodon idella) in compliance with the provisions of §57.116 of this title (relating to Special Provisions—Triploid Grass Carp); 

                                  (B) Blue tilapia (Oreochromis aureus), Mozambique tilapia (O. mossambicus), Nile tilapia (O. niloticus), Wami tilapia (O. hornorum), or hybrids of these species in compliance with the provisions of §57.115 of this title (relating to Special Provisions—Tilapia); and

                                  (C) Pacific white shrimp (Litopenaeus vannamei) or Pacific blue shrimp (L. stylirostris) in compliance with the provisions of §57.117 of this title (relating to Special Provisions—Shrimp Aquaculture and Health Certification).

                         (2) No person may participate in commercial aquaculture activity for which a permit under this subchapter is required unless they are an authorized person on the permit or supervised by an authorized person on the permit.

                 (c) Research. Controlled exotic species facility permits may be issued for research that benefits indigenous species or ecosystems and/or provides insight on ecology, risks, impacts, or management approaches for controlled exotic species. The sale of controlled exotic species under a research permit is prohibited unless authorized by written approval of the Director of the Coastal Fisheries Division or Inland Fisheries Division (or their designee), as applicable.

                 (d) Biological Control Production. Controlled exotic species facility permits may be issued for purposes of production of biological control agents for management of controlled exotic species of plants. 

                 (e) Zoological Display. Permits may be issued for zoological display in accordance with the provisions of this subchapter. The sale or intentional propagation of controlled exotic species under this permit is prohibited.

                 (f) Limited Special Purpose Permits. Permits may be issued for:

                         (1) sale of live triploid grass carp or tilapia purchased from a commercial aquaculture facility permit holder or lawful out-of-state source or sale by a lawful out-of-state supplier. Holding in a facility in Texas for more than 72 hours and aquaculture of these species is prohibited under this permit;  

                         (2) introduction into public water or private pond stocking of live triploid grass carp, in accordance with the provisions of this subchapter and §57.116 of this title (relating to Special Provisions – Triploid Grass Carp);

                         (3) interstate transit of controlled exotic species; 

                         (4) possession and disposal of controlled exotic species of plants from public or private waters; 

                         (5) possession of controlled exotic species of plants for wastewater treatment by a wastewater treatment facility; and 

                         (6) possession, transport, and disposal activities not otherwise authorized by the provisions of §57.113 of this title (relating to General Provisions and Exceptions).

        §57.115. Special Provisions—Tilapia.

                 (a) Except as provided in this section or the provisions of §57.113 of this title (relating to General Provisions and Exceptions), no person may possess, import, export, sell, purchase, transport, propagate, or culture, or offer to import, export, sell, purchase, or transport tilapia unless the person is the holder of a valid controlled exotic species permit and is in compliance with the terms of the permit. 

                 (b) Private ponds stocked with tilapia shall be designed and maintained such that escape, release, or discharge of tilapia from the pond into public water is not likely to occur.

                 (c) Non-commercial aquaculture. No permit is required under this subchapter to purchase, possess, transport, or propagate blue tilapia (O. aureus), Mozambique tilapia (O. mossambicus), Nile tilapia (O. niloticus), Wami tilapia (O. hornorum), and hybrids between these species for non-commercial (i.e., no sale) aquaculture purposes provided that:

                          (1) Live tilapia purchased in accordance with the provisions of this subchapter are transported to the aquaculture location in accordance with §57.121 of this title (relating to Transport of Live Controlled Exotic Species); 

                         (2) Tilapia are not sold, offered for sale, or exchanged for money or anything of value; 

                         (3) Tilapia are possessed solely in a recirculating aquaculture system constructed such that: 

                                  (A) escape, release, or discharge of tilapia into public water is not likely to occur; and

                                  (B) no discharge of wastewater or waste into or adjacent to water in the state is likely to occur;  

                         (4) Adequate security measures are in place to prevent unauthorized removal of tilapia; and

                         (5) Tilapia are killed in accordance with the provisions of §57.113(e) of this title prior to being transferred to another person or disposed.

                 (d) Stocking in private ponds. 

                         (1) No person holding tilapia in a private pond may sell, offer for sale, or exchange tilapia for money or anything of value. 

                         (2) Upon reclassification of any county in the stocking zone to conservation zone, the conservation zone provisions shall apply to all future stockings in that county. 

                         (3) Conservation zone provisions. Prior to stocking tilapia into a private pond in the conservation zone, the landowner or their agent must obtain written approval from the department. 

                                  (A) Approval shall be requested by completing and submitting a department form at least 30 days prior to the intended stocking. The request shall contain the following information, legibly written:

                                          (i) the name, address, and phone number of the person requesting approval;

                                          (ii) the specific address or coordinates of the location of the private pond; 

                                          (iii) a map of the location with the pond clearly marked; and

                                          (iv) the proposed date and purpose of introduction. 

                                  (B) The department may provide approval for stocking of blue tilapia (O. aureus), Mozambique tilapia (O. mossambicus), Nile tilapia (O. niloticus), Wami tilapia (O. hornorum), or hybrids between these species into a private pond in the conservation zone upon finding that the private pond is compliant with the provisions of subsection (b) of this section and does not pose a significant risk to species designated as endangered, threatened, or a Species of Greatest Conservation Need.

                                  (C) Written approval provided by the department for stocking of tilapia into a private pond in the conservation zone is specific to the pond for which approval was granted and is transferrable with the sale of the property. Written approval shall not expire or require renewal provided that the pond is not modified in any way that could result in increased risk of escape, release, or discharge of controlled exotic species into public water. 

                         (4) Stocking zone provisions. In the stocking zone no authorization or permit is required under this subchapter to purchase, possess, transport, or stock into a private pond blue tilapia (O. aureus), Mozambique tilapia (O. mossambicus), Nile tilapia (O. niloticus), Wami tilapia (O. hornorum), or hybrids between these species provided that the private pond is compliant with the provisions of subsection (b) of this section. 

                         (5) Tilapia stocked in a private pond must be killed in accordance with the provisions of §57.113(e) of this title prior to being transported or transferred to another person.

                         (6) A person in possession of live tilapia stocked in a private pond must possess and retain an exotic species transport invoice provided by the seller as described in §57.121 of this title for a period of one year from the date the tilapia were obtained or as long as the tilapia are in the water, whichever is longer.

                 (e) Commercial sale of tilapia for pond stocking. No tilapia may be stocked in or provided for the purpose of stocking into private ponds within the conservation zone without the landowner or their agent first obtaining written approval from the department as described in subsection (d) of this section.

        §57.116. Special Provisions – Triploid Grass Carp.

                 (a) The department may issue a permit for introduction of triploid grass carp into public water after finding that the introduction is not likely to affect threatened or endangered species or interfere with specific management objectives for other important species or habitats. 

                 (b) The department may issue a permit for stocking of triploid grass carp in a private pond after finding that the triploid grass carp are not likely to escape from the pond into public waters in violation of Parks and Wildlife Code, §66.015, and that the stocking is not likely to affect threatened or endangered species or interfere with specific management objectives for other important species or habitats. 

                 (c) An applicant for a triploid grass carp permit for private pond stocking shall, upon request, allow inspection of their ponds or lakes by an employee of the department during normal business hours for the purposes of evaluating whether the private pond meets the criteria for permit issuance.

                 (d) Except as otherwise approved by the department, the triploid grass carp stocking rate authorized by a permit shall be determined by consideration of the surface area of the water body to be stocked and the extent of the aquatic vegetation to be managed.  

                 (e) Triploid grass carp may be purchased or obtained only from:

                         (1) the holder of a valid controlled exotic species permit that authorizes the sale of triploid grass carp; or 

                         (2) directly from any lawful out-of-state source. 

                 (f) The department is authorized to introduce triploid grass carp into public water in situations where the department has determined that there is a management need, and when stocking will not affect threatened or endangered species or other important species or habitats.

                 (g) Stocking in private ponds. 

                         (1) Private ponds stocked with triploid grass carp shall be designed and maintained such that escape, release, or discharge of triploid grass carp from the private pond into public water is not likely to occur. 

                         (2) Prior to stocking of triploid grass carp into a private pond, the landowner or their agent must obtain a permit for stocking of live triploid grass carp. 

                         (3) Permits for stocking of triploid grass carp into private ponds are specific to the ponds on a property, transferrable with the sale of the property, and shall not expire or require renewal provided that the pond is not modified in any way that could result in increased risk of escape, release, or discharge of controlled exotic species into public water. 

                         (4) No person holding triploid grass carp in a private pond may sell, offer for sale, or exchange triploid grass carp for money or anything of value. 

                         (5) Upon reclassification of any county in the conservation zone to stocking zone, the stocking zone provisions shall apply to all future stockings in that county. Zones are as defined in §57.111 of this title (relating to Definitions).

                         (6) Within the stocking zone, permit applications requesting ten or fewer triploid grass carp require administrative review only. The application shall be submitted at least 14 days prior to the intended stocking.

                         (7) A person in possession of live triploid grass carp stocked in a private pond must possess and retain for a period of one year from the date the grass carp were obtained or as long as the grass carp are in the water, whichever is longer:

                                  (A) an exotic species transport invoice as described in §57.121 of this title (relating to Transport of Live Controlled Exotic Species) or an aquatic product transport invoice from a lawful out-of-state source in compliance with Parks and Wildlife Code, §47.0181; and

                                  (B) documentation that the grass carp have been certified as triploid by the Grass Carp Inspection and Certification Inspection Program operated by the U.S. Fish and Wildlife Service.

                         (8) Triploid grass carp stocked in a private pond must be killed in accordance with the provisions of §57.113 of this title prior to being transported or transferred to another person.   

        §57.117. Special Provisions – Shrimp Aquaculture and Health Certification.

                 (a) Any facility containing controlled exotic species of shrimp shall be capable of placing stocks into quarantine condition. 

                 (b) A facility containing live Pacific blue shrimp (Litopenaeus stylirostris) must be located outside the exotic shrimp exclusion zone.

                 (c) All disease-free certification of controlled exotic species of shrimp must be conducted by a disease specialist.

                 (d) Any person importing live controlled exotic species of shrimp must, prior to importation:

                          (1) provide documentation to the department that the controlled exotic species of shrimp to be imported have been certified as disease-free; and

                         (2) receive written acknowledgment from the department that the requirements of for demonstrating disease-free status have been met.

                 (e) Any person in possession of controlled exotic species of shrimp for the purpose of production of post-larvae must provide to the department monthly documentation that nauplii and post-larvae have been examined and are certified to be disease-free. If monthly certification cannot be provided, the shrimp must be maintained in quarantine condition until the department acknowledges in writing that the requirements for demonstrating stock is disease-free or conditions specified in writing by the department under which the quarantine condition can be removed have been met.

                 (f) Any person who possesses controlled exotic species of shrimp in a facility regulated under this subchapter who observes one or more of the manifestations of diseases of concern listed on the clinical analysis checklist provided by the department shall place the entire facility under quarantine condition immediately, notify the department, and:

                         (1) request an inspection from a disease inspector; or

                          (2) submit samples of the affected shrimp to a disease specialist for analysis and forward results of such analyses to the department upon receipt.

                 (g) No more than 14 days prior to harvesting ponds or discharging any waste into or adjacent to water in the state, the permit holder shall:

                         (1) request an inspection from a disease inspector; or

                         (2) submit samples of the shrimp from each pond or other structure containing such shrimp to a disease specialist for analysis and submit the results of such analyses to the department upon receipt, using the clinical analysis checklist.

                 (h) Upon receiving a request for an inspection from a permit holder, a disease inspector may visit the facility, examine samples of shrimp from each pond or other structure from which waste will be discharged or harvest will occur, complete the clinical analysis checklist provided by the department, sample shrimp from or inspect any pond or structure the disease inspector determines requires further investigation, and provide a copy of the clinical analysis checklist and any other inspection reports to the permit holder.

                 (i) If the results of an inspection performed by a disease inspector indicate the presence of one or more manifestations of disease, the permit holder shall immediately place or continue to maintain the entire facility under quarantine condition and submit samples of the controlled exotic species of shrimp from the affected portion(s) of the facility to a disease specialist for analysis. Results of such analyses shall be forwarded to the department upon receipt.

                 (j) If the results of analyses performed by a disease specialist under subsection (g)(2) of this section indicate the presence of disease, the permit holder shall immediately place the entire facility under quarantine condition.

                 (k) If the results of inspections or analyses of controlled exotic species of shrimp from a facility placed under quarantine condition indicate the presence of disease, the facility shall remain under quarantine condition until the department removes the quarantine condition in writing or authorizes in writing other actions deemed appropriate by the department based on the required analyses.

                 (j) If the results of inspections or analyses performed under subsection (g) of this section indicate the absence of any manifestations of disease, the permit holder may begin discharging from the facility.

        §57.118 Special Provisions — Water Spinach

                 (a) Except as authorized by a permit issued under this section, or otherwise provided by this section, no person may: 

                         (1) culture water spinach; or 

                         (2) possess or transport water spinach in exchange for or with the intent to exchange for money or anything of value.

                 (b) No permit issued under this section is required to purchase or possess water spinach for personal consumption, provided the water spinach was lawfully purchased or obtained and is not propagated or cultured.

                 (c) No permit issued under this section is required to purchase or obtain water spinach for sale or re-sale, provided:

                         (1) the water spinach is purchased or obtained from a controlled exotic species permit holder authorized for culture and sale of water spinach or a lawful out-of-state source;

                         (2) copies of all invoices and receipts are retained for a period of one year following the date of purchase or receipt;

                         (3) the water spinach is sold or transferred directly to a consumer (defined as a person purchasing or obtaining water spinach for personal consumption); and

                         (4) water spinach that is not sold, transferred or consumed is disposed of in such a manner as to prevent the dispersal of water spinach beyond the establishment or location where it is sold or stored.

                 (d) For a facility where water spinach is cultured:

                         (1) culture shall take place only in enclosed greenhouses;

                         (2) a copy of the permit shall be prominently displayed at the facility for which it was issued;

                         (3) all water spinach plants within the facility must be free of flowers and seeds at all times;

                         (4) propagation shall be by cuttings only and propagation using seeds is prohibited;

                         (5) water spinach shall be grown in only in moist soil and culture in aqueous media is prohibited;

                         (6) all equipment used in the cultivation of water spinach must be cleaned of all vegetation prior to being removed from a facility.

                         (7) a buffer area void of all plants, with the exception of mature woody vegetation, shall be created and maintained around the perimeter of all areas where water spinach is cultured, handled, packed, processed, stored, shipped, or disposed. The width of the buffer area shall be at least 10 feet unless the department grants a modification of buffer width based on the location of greenhouses;

                         (8) the greenhouse shall be maintained at all times in such a way as to prevent escape or release of water spinach and the department shall be notified if facility repairs are necessary; and

                         (9) satisfactorily demonstrate to the department, during annual facility inspections that activities authorized under this subchapter are conducted in compliance with the requirements of this subchapter and the facility is maintained in such a way as to prevent escape or release of water spinach.

                 (e) Packaging. All water spinach transported from a facility including water spinach transported under an interstate transport authorization shall be:

                         (1) packaged in a closed or sealed container having a volume no greater than three cubic feet and may not be mixed or commingled with any other material or substance; and

                         (2) identified such that each container of water spinach shall have a label placed on the outside of the container. The label must be clearly visible and shall bear the legend "Water Spinach" in English.

                 (f) Processing. All handling and packaging of water spinach must be done at the permitted facility within the buffer area. All water spinach fragments must be collected and disposed as described in subsection (k) of this section.

                 (g) Transport invoice. The permit holder shall generate a transport invoice for each sale or transfer of water spinach. Except as provided by subsection (g) of this section, no person may remove water spinach from a permitted facility unless the water spinach is accompanied by a separate transport invoice for each receiver. The transport invoice required by this section shall contain the following information, legibly written:

                         (1) a unique transport invoice number;

                         (2) the date of shipment;

                         (3) the name, address and phone number of the permit holder;

                         (4) the name, address, and phone number of the common carrier, if a common carrier is used to transport the water spinach;

                         (5) the name, address and phone number of the person receiving the water spinach; and

                         (6) the controlled exotic species permit number of the permit holder and receiver, as applicable.

                 (h) Transport log. A permit holder may transport water spinach to and from a permitted facility for the purposes of sale without first generating individual transport invoices provided the permit holder:

                         (1) generates a water spinach transport invoice for each receiver at the time the water spinach is delivered; and

                         (2) maintains and possesses a current and accurate daily transport log at all times during transport. The water spinach transport log required by this section shall be on a department form and shall contain the following information, legibly written, for each sale:

                                  (A) the date and time of shipment;

                                  (B) the name, address, phone number, and exotic species permit number of the permit holder;

                                  (C) the number of boxes of water spinach in possession at the time transport is commenced from the facility;

                                  (D) for each delivery or acquisition of water spinach:

                                          (i) the water spinach transport invoice number for each transfer of water spinach to or from the permit holder;

                                          (ii) receiver/supplier’s name, address, and phone number; 

                                          (iii) type of transfer—delivery or receipt; and

                                          (iv) the number of boxes of water spinach transferred; and.

                                  (E) the number of boxes of water spinach in possession upon return to the facility.

                 (i) Recordkeeping. A copy of each daily transport log, if applicable, or transport invoice must be retained for a period of one year following the date of purchase or receipt. If water spinach is purchased or obtained from a lawful source outside the state, a copy of the receipt and documentation of lawful sale, if applicable, must be retained for a period of one year following the date of purchase or receipt. All records required by this section shall promptly be provided upon request during normal business hours to any department employee acting within the scope of official duties.

                 (j) Reporting. A person permitted under this section to grow water spinach shall submit quarterly reports to the department on a form supplied by the department. The quarterly reports required by this subsection shall be submitted by March 15, June 15, September 15, and December 15 of each year and must be submitted even if no sales occurred during the quarter.

                 (k) Escape or release prevention, notification, and emergency plan implementation.

                         (1) The permit holder shall not allow water spinach to escape from a facility or be released or spread outside the facility during cultivation, handling, packaging, processing, storage, shipping, or disposal. 

                         (2) The use of water spinach to feed animals is prohibited.

                         (3) Water spinach that is not sold, transferred, or consumed and all fragments of water spinach not growing in soil or packaged must be placed into a secure container until packaged or transported to a secure waste or compost bin and composted, dried fully, or placed into black plastic bags prior to disposal.

                         (4) The holder of a permit issued under this subchapter shall notify the department within 72 hours of discovering the escape or release of water spinach from their facility or during transport.

                         (5) In the event that a facility subject to a permit issued under this section appears to be in imminent danger of flooding or other circumstance that could result in the escape or release of water spinach, the permit holder shall:

                                  (A) immediately begin implementation of emergency measures to prevent the escape or release of water spinach; and 

                                  (B) notify the department of implementation of emergency measures in accordance with permit provisions.

                         (6) In the event that water spinach escapes or is released from a greenhouse or a facility, the facility permit holder is responsible for all costs associated with the detection, control, and eradication of free-growing water spinach resulting from such escape or release and subsequent dispersal. Water spinach growing outside a greenhouse is considered to be escaped.

                 (l) Disposition of water spinach cultured without a permit. In the event that any facility is found to be culturing water spinach without a permit or following a decision by the department to refuse issuance or renewal of a permit, the department may prescribe a disposition protocol in accordance with §57.113 of this title (relating to General Provisions and Exceptions).

         §57.119. Minimum Facility Requirements. 

                 (a) General facility requirements.

                         (1) Unless specifically provided otherwise under this subchapter or the conditions of a permit issued under this subchapter, a facility operating under a controlled exotic species permit shall: 

                                  (A) prominently display a copy of the permit at the facility for which it was issued;

                                  (B) be maintained in compliance with the standards set forth in this section at all times unless the department has been notified that facility repairs are necessary; 

                                  (C) satisfactorily demonstrate to the department at intervals of no more than five years, unless longer intervals are approved by the department based on systematic risk analysis, that activities authorized under this subchapter are conducted in compliance with the requirements of this subchapter and the facility is maintained in such a way as to prevent escape, release, or discharge of controlled exotic species; and

                                  (D) train staff on permit conditions and requirements and ensure staff are prepared to implement the facility’s department-approved emergency plan to prevent escape, release, or discharge of controlled exotic species into public water during a natural disaster such as a hurricane or flood. 

                         (2) For limited special purpose permit holders who purchase, transport, and sell controlled exotic species for stocking in private ponds, a facility is not required. Required records shall be made available to department staff for inspection during normal business hours within 72 hours following a request by the department.  

                         (3) Any facility containing controlled exotic species shall have security measures in place to minimize to the extent practicable the risk of unauthorized removal of controlled exotic species. 

                         (4) The department may prescribe additional security measures as a condition of a permit upon determining that the facility requirements described in this section are not feasible or may not be sufficient to minimize risk of escape, release, or discharge or impacts to native species and ecosystems. 

                 (b) Water spinach culture facility requirements. Water spinach culture facility requirements are described in §57.118 of this title (relating to Special Provisions – Water Spinach).

                 (c) Commercial aquaculture facility requirements.                  

                         (1) A facility holding controlled exotic species shall be designed to prevent escape, release, or discharge of controlled exotic species or unauthorized discharge of wastewater by means of appropriately designed and constructed screens, barriers, filters, recirculating aquaculture systems, or other methods that are approved by the department. All screens, barriers, or other approved devices intended to prevent escape, release, or discharge as required under this section shall be specified in the conditions of the permit and must be properly maintained at all times.

                         (2) If the facility employs screens to comply with the provisions of this section:

                                  (A) screens must have a mesh size that is capable of preventing the passage of controlled exotic species at the smallest life stage present in the facility at the time of discharge; 

                                  (B) screens must be redundant or otherwise designed and constructed such that the level of protection against escape, release, or discharge of controlled exotic species is not reduced if a screen is damaged or must be removed to accomplish cleaning, repair, or other maintenance; and

                                  (C) wastewater discharged from the facility must be routed through all screens in accordance with department approval prior to the point where wastewater leaves the facility.

                         (3) In addition to any other requirements of this subchapter, any portion of a facility that is to contain controlled exotic species and is located within the 100-year flood plain (referred to as Zone A on the National Flood Insurance Program Flood Insurance Rate Map) must be elevated above the 100-year floodplain or enclosed within an earthen or concrete dike or levee constructed in such a manner as to exclude all flood waters. No section of the crest of the dike or levee or building foundation, as applicable, may be less than one foot above the 100-year flood elevation. Dike and levee design and construction must be approved by the department.

                         (4) Facility Complex. For a facility that is part of a facility complex, the following additional facility standards apply:

                                  (A) For a facility complex with a common drainage, each permit holder shall:

                                          (i) maintain at least one screen or barrier capable of preventing the escape, release, or discharge of controlled exotic species into a common drainage; and

                                          (ii) have authority to stop the discharge of wastewater from the entire complex in the event of escape, release, or discharge of controlled exotic species from the permit holder’s facility. 

                                  (B) In addition to any other requirements of this subchapter, a permit holder whose facility is part of a facility complex shall ensure the installation of signage that clearly identifies each pond or other component of the permit holder’s facility. Signage required by this section must:

                                          (i) be legible;

                                          (ii) bear the name and permit number of the permit holder;

                                          (iii) be within 10 feet of the authorized pond or other facility component; and

                                          (iv) correspond to the location of the pond or other facility component as indicated on the map provided to the department as required by §57.122 of this title (relating to Permit Application, Issuance, and Period of Validity).

        §57.120 Wastewater Discharge Authority. 

                 (a) An applicant for an initial exotic species permit must provide the following:

                         (1) written documentation demonstrating that the applicant possesses the appropriate valid wastewater discharge authorization or has received an exemption from the Texas Commission on Environmental Quality; or

                         (2) adequate documentation to demonstrate that the facility is designed and will be operated in a manner such that no discharge of waste into or adjacent to water in the state will, or is likely to occur.

                 (b) If the facility or facility complex is designed such that a discharge of waste into or adjacent to water in the state will, or is likely to occur, an applicant for an amendment or a renewal of an exotic species permit must provide written documentation demonstrating that the applicant possesses or has timely applied for and is pursuing the appropriate wastewater discharge authorization or exemption from the TCEQ in accordance with the Texas Pollutant Discharge Elimination System (TPDES) General Permit for concentrated aquatic animal production facilities TXG 130000.

                 (c) An exotic species permittee whose wastewater discharge authorization or exemption is revoked, suspended or annulled by the TCEQ will be treated as an applicant for an initial permit under subsection (a) of this section.

                 (d) An applicant for a permit for controlled exotic species of plants is not required to obtain a permit from the TCEQ for the purposes of this section.

        §57.121. Transport of Live Controlled Exotic Species.

                 (a) Except as provided in §57.113 of this title (relating to General Provisions and Exceptions), no person may transport live controlled exotic species, except for: 

                         (1) a person who is a controlled exotic species permit holder, an employee of the permit holder, or a common carrier acting on their behalf and in possession of:

                                  (A) for permit holders or their employees, a copy of a valid permit issued under this subchapter; and 

                                  (B) a properly executed transport invoice; and

                                  (C) for triploid grass carp, documentation that the grass carp have been certified as triploid by the Grass Carp Inspection and Certification Inspection Program operated by the U.S. Fish and Wildlife Service.

                         (2) private pond owners transporting tilapia or triploid grass carp to a private pond for stocking purposes in possession of:

                                  (A) a properly executed transport invoice if obtained from a permit holder; or 

                                  (B) an aquatic product transport invoice in compliance with Parks and Wildlife Code, §47.0181 if obtained from a lawful out-of-state source; and

                                  (C) for triploid grass carp, a copy of the permit for stocking triploid grass carp. 

                         (3) a common carrier, provided that the shipment is:

                                  (A) transported by aircraft from a point outside the state of Texas to a destination outside of the state of Texas; 

                                  (B) is not moved overland within the state of Texas; and

                                  (C) is accompanied at all times by documentation of compliance with all applicable local source and destination, federal, and international regulations and statutes. 

                         (4) a common carrier, provided the shipment is accompanied at all times by:

                                  (A) a properly executed transport invoice generated by a controlled exotic species permit holder as described in subsection (c) of this section; or

                                  (B) for triploid grass carp obtained from a lawful out-of-state source transported to a private pond for the purpose of stocking under a permit issued in accordance with §57.116 of this title (relating to Special Provisions – Triploid Grass Carp):

                                          (i) a copy of the permit for stocking of triploid grass carp; 

                                          (ii) an aquatic product transport invoice in compliance with Parks and Wildlife Code, §47.0181; and 

                                          (iii) documentation that the grass carp have been certified as triploid by the Grass Carp Inspection and Certification Inspection Program operated by the U.S. Fish and Wildlife Service.

                 (b) Water spinach transport. Water spinach transport requirements are described in §57.118 of this title (relating to Special Provisions – Water Spinach).

                 (c) Transport invoice.

                         (1) A separate transport invoice shall be generated by the controlled exotic species permit holder for each delivery location in advance of transport except as provided in §57.118 of this title and shall accompany the controlled exotic species during transit. 

                         (2) A transport invoice shall contain the following information, legibly written:

                                  (A) date of shipment;

                                  (B) for the controlled exotic species permit holder from whom the controlled exotic species was obtained:

                                          (i) name; 

                                          (ii) facility address; 

                                          (iii) phone number; and 

                                          (iv) controlled exotic species permit number, if applicable;

                                  (C) for the person or entity to whom the controlled exotic species is being transported:

                                          (i) name; 

                                          (ii) physical address including county where the controlled exotic species will be possessed if different from the mailing address (not a post office box); 

                                          (iii) phone number; and 

                                          (iv) controlled exotic species permit number, if applicable; 

                                  (D) species being transported—for each species listed on the transport invoice, provide:

                                          (i) the common and scientific names as they appear on the controlled exotic species permit; and

                                          (ii) the number or weight, by size class; and

                                  (E) type of transport — import, export, or intrastate (within Texas)

                 (d) Interstate transit. 

                         (1) The holder of a controlled exotic species special purpose permit for interstate transit may transport live or viable controlled exotic species from a point outside of Texas via a route through Texas to another point outside of Texas in accordance with this subsection. 

                         (2) The department may issue a transit permit that is valid for a single use or for a period of one year. Permits issued for one year shall expire on December 31.           

                         (3) An annual or single-use transit permit may be obtained by completing and submitting an application on a department form and payment of the fee as specified in §53.15 of this title (relating to Miscellaneous Fisheries and Wildlife Licenses and Permits). The initial application for a transit permit shall be submitted at least 30 days prior to any intended transit activity.  

                         (4) A person transporting controlled exotic species under the provisions of this subsection shall physically possess a copy of the transit permit at all times during transit and be able to provide documentation accounting for all controlled exotic species being transported.

                         (5) A person transporting controlled exotic species under a transit permit shall ensure that:

                                  (A) controlled exotic species are securely contained at all times;

                                  (B) controlled exotic species are not offloaded or transferred; and

                                  (C) the department is notified immediately following any incident resulting in inadvertent escape, release, or discharge of controlled exotic species from containment, in accordance with permit provisions.

                         (6) For each intended transit, a notice shall be submitted on a department form. The completed notice form shall be submitted with the initial application for a single-use transit permit and at least 24 hours prior to any each intended transit under an annual transit permit. All notices must include:

                                  (A) the dates and times that the permit holder expects to enter and depart the state of Texas while in possession of controlled exotic species;

                                  (B) the common and scientific names of each controlled exotic species to be transported;

                                  (C) the quantity (volumetric, number, weight, or other measurement convention) of each controlled exotic species being transported;

                                  (D) the specific points of origin and destination of each controlled exotic species being transported;

                                  (E) the specific route the transport will follow, including the locations where the transporter will enter and depart the state of Texas;

                                  (F) a description of the make, model, and color of the vehicle, trailer, or other conveyance to be employed in transport and license plate numbers; and

                                  (G) the name, driver’s license number, and contact numbers of the driver or contact information for the commercial shipper transporting the controlled exotic species through the state of Texas.  

        §57.122. Permit Application, Issuance, and Period of Validity.

                 (a) Interstate transit permits. Interstate transit permit application, issuance, and period of validity are described in §57.121 of this title (relating to Transport of Live Controlled Exotic Species).

                 (b) Permit application.

                         (1) Submission deadline. An initial application for any permit under this subchapter shall be submitted at least 30 days prior to any prospective activity involving controlled exotic species. 

                         (2) General requirements. An applicant for any permit under this subchapter shall submit:

                                  (A) Application — a completed and signed application for the appropriate permit on a form supplied by the department; 

                                  (B) Applicant information — Texas driver’s license or identification number, Social Security number, and date of birth for the applicant and each manager or other person who is to supervise permitted activities; 

                                  (C) Additional required documentation — as described in subsection (3) of this section or otherwise specified by this subchapter; and

                                  (D) Fees — the appropriate fee specified in §53.15 of this title (relating to Miscellaneous Fisheries and Wildlife Licenses and Permits), except that fees shall be waived for:

                                          (i) public school educational programs meeting the conditions in Parks and Wildlife Code, §66.007(c-1) provided that the applicant submits a written request for a fee waiver, including course descriptions or curriculum demonstrating controlled exotic species will be part of an educational program that includes tilapia aquaculture and hydroponics. 

                                          (ii) physical removal of controlled exotic species of plants from public water in accordance with an approved treatment proposal in accordance with §57.932 of this title (relating to State Aquatic Vegetation Plan).

                                          (iii) stocking triploid grass carp in public water.             

                         (3) Additional documentation requirements. 

                                  (A) Required licenses. Applicants for commercial aquaculture facility permits or limited special purpose permits for private pond stocking shall submit a copy of the appropriate, valid aquaculture license or fish farm vehicle license issued by the Texas Department of Agriculture under Agriculture Code, Chapter 134.

                                   (B) Wastewater discharge authorization. Applicants for commercial aquaculture facility permits shall submit documentation required by §57.120 of this title, relating to Facility Wastewater Discharge Requirements. 

                                  (C) Nuisance Aquatic Vegetation treatment proposal. Applicants for a permit to possess, transport, and dispose controlled exotic species of plants shall also submit a treatment proposal on a department form in accordance with §57.932 of this title (relating to State Aquatic Vegetation Plan) that includes maps showing the location where plant removal and/or disposal is to occur and routes from the removal location to the location for disposal of controlled exotic species of plants. 

                                  (D) Facility map. Applicants for commercial aquaculture facility permits, biological control production permits, zoological display or research permits with outdoor holding facilities, or limited special purpose permits for wastewater treatment shall submit an accurate map or aerial photograph of the facility location with the initial application. For facilities located within the 100-year flood plain, a professionally surveyed map may be required by the department. Maps shall be clearly labeled to indicate, at a minimum, the location of:

                                          (i) any facility ponds, greenhouses, recirculating aquaculture systems or other infrastructure used to possess, propagate, culture, or transport controlled exotic species;

                                          (ii) all drainage routes and structures, including adjacent ditches or natural drainage features;

                                          (iii) all points at which water, wastewater, or waste is capable of being discharged or else noting that the facility does not discharge; and

                                          (iv) all screens, barriers, or other structures that are intended or serve to prevent escape, release, discharge, or unauthorized removal of controlled exotic species.

                                  (E) Emergency plan. Applicants for commercial aquaculture facility permits, water spinach culture facility permits, research permits (when live controlled exotic species are possessed), zoological display permits, and biological control production permits shall submit a written emergency plan, on the appropriate department form, demonstrating that the applicant has identified measures sufficient to prevent escape, release, or discharge of controlled exotic species into public water during a natural event such as a hurricane or flood. Approved emergency plan shall be posted and maintained on file at the facility.

                                  (F) Research proposal and researcher qualifications. An applicant for a permit to conduct scientific research involving controlled exotic species shall also submit a research proposal and documentation of applicant qualifications to conduct controlled exotic species research. 

                                  (G) Biological control production plan. An applicant for a permit to culture controlled exotic species of plants as hosts for the purposes of production of biological control agents shall also submit a written production plan statement to include, at a minimum:

                                          (i) the proposed number of biological control agents, if any, to be collected from public waters each year;

                                          (ii) the expected production of the controlled exotic species of plants in acres or square feet; and

                                          (ii) the intended use of the biological control agents including water bodies where the biological control agents may be introduced.

                 (c) Permit issuance. The department will not issue a permit under this subchapter for any purpose until:

                         (1) the application and additional documentation required by this section are determined to be adequate and complete; 

                         (2) fees have been submitted, if applicable; 

                         (3) facility has been inspected and approved in accordance with the requirements of §57.119 of this title (relating to Minimum Facility Requirements), if applicable; and

                         (4) the department has determined that the prospective activity is consistent with the department’s management policies and goals and will not detrimentally affect threatened or endangered species or their habitat or affect existing biological ecosystems.  

                 (d) Period of validity. Unless otherwise provided in this subchapter, a controlled exotic species permit issued under this subchapter is valid from the date of issuance until December 31 of the year of issuance, except that a permit to physically remove controlled exotic plants from public water in accordance with an approved vegetation treatment proposal shall have the same period of validity as the vegetation treatment proposal, as specified in the guidance document required by §57.932 of this title (relating to State Aquatic Vegetation Plan).

        §57.123. Permit Amendment and Renewal.

                 (a) A permit issued under this subchapter for a specific facility is valid only for the site named on the permit and may not be amended to authorize any other facility. 

                 (b) A permit must be amended and the permit holder must receive the amended permit prior to any of the following actions on the part of the permit holder:

                         (1) obtaining species or subspecies of controlled exotic species requested for addition to the amended permit;

                         (2) transferring managerial or supervisory responsibilities to a person other than the current permit holder;

                         (3) changing methods of preventing discharge of wastewater; or

                         (4) changing methods of preventing escape, discharge, or release of controlled exotic species. 

                 (c) A permit issued under this subchapter may be amended or renewed upon a finding by the department that the applicant has:

                         (1) submitted a written request for permit amendment or renewal application on a department form prior to the expiration date of the current permit at least 7 days prior to transfer of managerial or supervisory responsibilities to a new person; 

                         (2) submitted the appropriate fee if required by the department, including inspection fee for facility modifications as specified in §53.15 of this title (relating to Miscellaneous Fisheries and Wildlife Licenses and Permits);  

                         (3) has complied with all permit provisions; and  

                         (4) met the requirements of §57.119 of this title (relating to Minimum Facility Requirements), if applicable, and/or demonstrate that the facility and demonstrated that the facility is operated and maintained in a manner such that no escape, release, or discharge of controlled exotic species into public water or into facility ponds or drainage structures not meeting minimum facility requirements will or is likely to occur.

                 (d) A Commercial aquaculture facility permit issued under this subchapter may be renewed for a period at the request of the permit holder of:

                         (1) one permit year upon a finding by the department that the applicant and facility have complied with all provisions of this subchapter for a period of at least an entire permit year;  

                         (2) three permit years upon a finding by the department that the applicant and facility have complied with all provisions of this subchapter and maintained a permit for a period of at least three entire consecutive permit years; or

                         (3) five permit years upon a finding that the applicant and the facility have complied with all provisions of this subchapter for a period of at least five entire consecutive permit years.

        §57.124. Refusal to Issue; Review of Agency Decision to Refuse Issuance.

                 (a) Refusal to issue.

                         (1) The department may refuse issuance or renewal, as applicable, of a permit to any person or for any facility if the department determines that a prospective activity constitutes a threat to native species, habitats, or ecosystems or is inconsistent with department management goals and objectives.

                         (2) The department may refuse issuance, amendment, or renewal, as applicable, of a permit to any person:

                                  (A) who has been convicted of, pleaded guilty or nolo contendere to, received deferred adjudication or pre-trial diversion for, or been assessed an administrative or civil penalty for a violation of:

                                          (i) this subchapter;

                                          (ii) Parks and Wildlife Code, §§66.007, 66.0072, or 66.015; 

                                          (iii) Parks and Wildlife Code that is a Class B misdemeanor, a Class A misdemeanor, or felony; 

                                          (iv) Penal Code, §37.10;

                                          (v) Lacey Act, 16 U.S.C. §§3371-3378; or

                                          (vi) a provision of federal law applicable to grass carp.  

                                  (B) if another person employed, authorized, or otherwise utilized to perform permitted activities by the applicant has been convicted of, pleaded guilty or nolo contendere to, or received deferred adjudication or pre-trial diversion for an offense listed in subsection (a)(2)(A) of this section. 

                         (3) The department may refuse to issue a permit to any person the department has evidence is acting on behalf of or as a surrogate for another person who is not eligible for a permit under the provisions of this subchapter.

                         (4) The department may refuse to renew the permit of any person who is not in compliance with applicable reporting or recordkeeping requirements. 

                         (5) The duration of the denial period may be:

                                  (A) determined by the department based upon the severity and relevance of the conviction and the applicant’s conviction and permit compliance history; and

                                  (B) up to a period of five calendar years. 

                 (b) Review of agency decision to refuse issuance.

                         (1) An applicant for a permit or permit renewal may request a review of a decision of the department to refuse issuance of a permit or permit renewal (as applicable).

                         (2) An applicant seeking review of a decision of the department must submit a written request for review within 10 working days of being notified by the department that the application for a permit or permit renewal has been denied.

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

                         (4) The department shall seek to 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.

                         (5) The request for review shall be presented to a review panel. The review panel shall consist of three department managers with knowledge of relevant resources or programs, appointed or approved by the executive director or designee.

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

        §57.125. Reporting, Recordkeeping, and Notification Requirements.

                 (a) Reporting, recordkeeping, and notification requirements for holders of water spinach culture facility permits are described in §57.118 of this title (relating to Special Provisions – Water Spinach). 

                 (b) Reporting requirements.  

                         (1) All reports will be submitted on department forms or in a format prescribed by the department, as applicable.  

                         (2) All annual reports for permits other than for water spinach shall be due by January 30 of the year following the calendar year for which the permit was issued. 

                         (3) Commercial aquaculture facility. 

                                  (A) The holder of a commercial aquaculture facility permit authorizing aquaculture and sale of controlled exotic species of shrimp or triploid grass carp shall submit to the department an annual report that accounts for the total quantity or weight of controlled exotic species of shrimp or triploid grass carp for all instances of purchase, transfer, sale, importation, exportation, or other disposition of any controlled exotic species during the permit period.  

                                  (B) The holder of a commercial aquaculture facility permit authorizing aquaculture and sale of tilapia is not required to submit an annual report.  

                         (4) Biological control production. The holder of a permit for biological control production shall submit to the department a report of host plant production, biological control agent production, number and locations of collections and introductions, and number of sales if applicable. 

                         (5) Research. The holder of a permit for controlled exotic species research shall submit to the department a report describing the research activities conducted on all species listed on the permit. 

                         (6) Zoological display. The holder of a permit for zoological display shall submit a report accounting for all controlled species in possession, obtained, transferred, or dispatched during the permit year. 

                         (7) Limited special purpose permits. 

                                  (A) Holders of limited special purpose permits for tilapia and triploid grass carp sale for private pond stocking issued under §57.114(f)(2) of this title (relating to Controlled Exotic Species Permits) shall submit to the department an annual report that accounts for total quantity or weight of triploid grass carp for all instances of purchase, transfer, sale, importation, exportation, or other disposition during the permit period. 

                                  (B) Holders of limited special purpose permits for possession, transport, and disposal activities not otherwise authorized by the provisions of proposed §57.113 (relating to General Provisions and Exceptions) may be required to submit a report to the department in accordance with permit conditions.

                                  (C) Reports are not required for other limited special purpose permits. 

                 (c) Recordkeeping requirements for permits.                  

                         (1) The holder of a permit issued under this subchapter shall maintain at the facility or record-keeping location, and upon the request of any department employee acting within the scope of official duties during normal business hours, promptly make available for inspection:

                                  (A) copies of transport invoices for the previous one year, generated in accordance with §57.121 of this title (relating to Transport of Live Controlled Exotic Species);

                                  (B) any other permit or records required by this subchapter; and

                                  (C) documentation of current permits or authorizations required as a prerequisite for any permits issued under this subchapter and issued under the authority of:

                                          (i) Water Code, Chapter 26; and

                                          (ii) Agriculture Code, Chapter 134.

                 (d) Notification requirements for permits.

                         (1) Notification requirements for limited special purpose permits for interstate transit are described in §57.121(d) of this title (relating to Transport of Live Controlled Exotic Species; Interstate Transit).

                         (2) The holder of a permit issued under this subchapter shall notify the department within 24 hours of discovering the escape, release, or discharge of controlled exotic species from their facility or during transport.

                         (3) In the event that a facility or facility complex subject to a permit issued under this subchapter appears to be in imminent danger of overflow, flooding, or other circumstance that could result in the escape, release, or discharge of controlled exotic species into public water, the permit holder shall immediately:

                                  (A) begin implementation of the emergency plan approved by the department to prevent the escape, release, or discharge of controlled exotic species into public water; and 

                                  (B) notify the department in accordance with permit provisions.

                         (4) Except in case of an emergency, the holder of a controlled exotic species permit authorizing possession of controlled exotic species of shrimp must notify the department at least 72 hours prior to, but not more than 14 days prior to any harvesting of permitted shrimp. In an emergency, notification of harvest must be made as early as practicable prior to beginning of harvest operations.

                         (5) The holder of a commercial aquaculture facility permit must notify the department not less than 72 hours prior to any instance of the import or export of triploid grass carp. The notification must include: 

                                  (A) number of grass carp being purchased; 

                                  (B) source of grass carp; 

                                  (C) ploidy level of grass carp;

                                  (D) final destination of grass carp; 

                                  (E) name of certifying authority who conducted triploid grass carp certification; and 

                                  (F) name, address, and exotic species permit number and aquaculture license number (as applicable) of both the transporter and the receiver.

                         (6) The holders of permits for commercial aquaculture facilities, zoological display or research facilities when live controlled exotic species are possessed, and biological control production facilities shall: 

                                  (A) notify the department at least 14 days prior to making modifications: 

                                          (i) to the methods of preventing escape, release, or discharge of controlled exotic species approved under the current permit provisions;                    

                                          (ii) affecting the discharge of water, wastewater, or waste from a facility; or 

                                          (iii) to the required facility infrastructure set forth under the permit provisions or §57.119 of this title (relating to Minimum Facility requirements).

                                  (B) The permit holder must furnish to the department photographs and revised maps of modifications. The department may conduct an onsite inspection upon a determination that the nature of a prospective modification requires further investigation.

        §57.126. Discontinuation of Permitted Activities; Sale or Transfer of Permitted Facility.

                 (a) The department may order a permit holder in writing to cease possession, importation, exportation, sale, purchase, transportation, propagation, or culture of controlled exotic species until such time as clearly stated conditions are met and prescribe a disposition protocol in accordance with §57.113(m) of this title (relating to General Provisions and Exceptions), if:

                         (1) the department determines that there is a threat of escape, release, or discharge of controlled exotic species and/or potential threat to native species or ecosystems; or

                         (2) the permit holder’s permit, license, authorization, or exemption is revoked or suspended by:

                                  (A) the Texas Commission on Environmental Quality (TCEQ); or

                                  (B) the Texas Department of Agriculture (TDA).

                         (3) the permit holder fails to renew a permit, license, authorization, or exemption issued by:

                                  (A) the TCEQ; or

                                  (B) the TDA.

                 (b) If a permit holder chooses to discontinue permitted activities involving controlled exotic species, the permit holder shall:

                         (1) notify the department at least 14 days prior to permit expiration or expected date permitted activities will be discontinued; 

                         (2) lawfully sell, transfer, or destroy all remaining inventory of the species in possession prior to permit expiration or expected date upon which permitted activities will be discontinued; and 

                         (3) provide a final report to the department, if applicable, within 30 days following discontinuation of activities and in accordance with the provisions of §57.125 of this title (relating to Reporting, Recordkeeping, and Notification Requirements).

                 (c) If a permit holder intends to sell a facility containing controlled exotic species along with remaining inventory of the species in possession, the permit holder shall inform in the department in writing of intent to sell at least 14 days in advance of expected closing date and notify the department within 72 hours of finalizing the sale of the facility and provide the name, address, and phone number of the purchaser. 

                 (d) Transitional Operation. A permitted facility may continue to operate under the permit in effect for the facility following a change in ownership provided:

                         (1) the facility is in compliance with the provisions of this subchapter;

                         (2) the new owner submits an application for a controlled exotic species permit to the department in accordance with §57.122 of this title (relating to Permit Application, Issuance, and Period of Validity); and 

                         (3) the new owner provides proof to the department that the necessary permits from the TCEQ and TDA as identified in §57.122 of this title (relating to Permit Application, Issuance, and Period of Validity) have been obtained or applications submitted and complies with all applicable regulations from those agencies; and

                         (4) the department provides written approval of transitional operation until such time as the necessary wastewater and aquaculture permits are:

                                  (A) issued by the regulatory authority and the controlled exotic species permit is issued by the department; or

                                  (B) denied by the regulatory authority.

        §57.127 Memorandum of Understanding between the Texas Parks and Wildlife Department, the Texas Commission on Environmental Quality, and the Texas Department of Agriculture. The provisions of 30 TAC §7.103 (relating to Memorandum of Understanding (MOU) between the Texas Commission on Environmental Quality (Commission), the Texas Parks and Wildlife Department (TPWD), and the Texas Department of Agriculture (TDA), which were adopted by the Commission to take effect January 9, 2001, are adopted by reference.

        §57.128 Penalties. 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 penalties prescribed by the Parks and Wildlife Code, §66.012.


Work Session Item No. 9
Exhibit B

HARMFUL AND POTENTIALLY HARMFUL FISH, SHELLFISH,  

AND AQUATIC PLANT RULES — FEE RULES 

PROPOSAL PREAMBLE

1. Introduction.

        The Texas Parks and Wildlife Department proposes an amendment to §53.15, concerning Miscellaneous Fisheries and Wildlife Licenses and Permits. The proposed amendment would reorganize the existing fee structure for controlled exotic species permits authorizing the possession of harmful or potentially harmful fish, shellfish, and aquatic plants and establish fees for proposed, multi-year renewals of commercial aquaculture permits. The proposed amendment is largely nonsubstantive (i.e., most current fee amounts would not be changed except for commercial aquaculture permits to account for the need for more frequent facility inspections).

        The proposed amendment would establish the fee structure and amounts for the issuance of multi-year permits for controlled exotic permits issued for commercial aquaculture. Current rules provide for a one-year period of validity for exotic species permits with the possibility of annual renewal thereafter. Under the current rules, the initial fee for permit issuance is $263, which consists of a $27 administrative fee and a one-time facility inspection fee of $236. In another proposed rulemaking published elsewhere in this issue of the Texas Register, the department is proposing new rules governing permits to possess controlled exotic species. Among other things, the proposed new rules would require all commercial aquaculture facilities to be inspected at least once every five years but would also allow for the issuance of multi-year permit renewals (three years or five years) to commercial aquaculture permit holders who are in good standing and have no history of violations for the preceding period of the same duration as the renewal period. The proposed amendment to §53.15 would update the fee for a one-year renewal to $74, establish a fee for a three-year renewal of a commercial aquaculture permit of $168, and establish a fee for a five-year renewal of a commercial aquaculture permit of $263. These fees represent, in each case, $27 for the one-time administrative fee, plus a pro-rated inspection fee ($236 divided by the five-year interval period for inspections). Totals for the renewal fees for the multi-year permits were rounded to the nearest whole dollar amounts.

2. Fiscal Note.

        Ken Kurzawski, Manager, Information and Regulations, in the Inland Fisheries Division, has determined that for each of the first five years that the rules as proposed are in effect, there will be fiscal implications to state government as a result of administering or enforcing the rule. Because it is impossible to predict which renewal option any given current permit holder will operate under (annual, three-year, or five year), the revenue in any given year cannot be quantified; however, because each permit holder will be required to undergo a facility inspection at least once every five years, the department estimates that the maximum annual revenue increase resulting from the proposed amendment will be $9,204, which represents the total revenue over five years, averaged across the five-year period being analyzed. This figure was derived by taking the total number of current exotic species permits issued (195), multiplying that number by the fee for a facility inspection ($236), and dividing that product by five. The department notes that because it is impossible to quantify the number of new permits that could be issued, or the number of permits that might expire, the department has assumed that the number of permits remains constant.

        There will be no adverse economic impacts on units of local government as a result of the proposed amendment.

3. Public Benefit/Cost Note.

        Mr. Kurzawski 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 proposed rules will be the protection of public resources from the negative impacts associated with the release or escape of harmful or potentially harmful exotic fish, shellfish, and aquatic plants and a reduction in the burden of annual renewals for commercial aquaculturists electing to obtain multi-year renewal permits.

        (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.

        Department records indicate that other than 934 persons who hold an exotic species permit authorizing possession of triploid grass carp for noncommercial purposes, there are 195 persons currently holding an exotic species permit of some kind. To ensure that this analysis captures all small businesses, microbusiness, and rural communities that might be affected by the proposed rules, the department assumes that all permit holders are small or microbusinesses. Therefore, the department has prepared the economic impact statement and regulatory flexibility analysis described in Government Code, Chapter 2006.

        There will be adverse economic effect on small and microbusinesses required to comply with the rule in the form of a cost of compliance of $236 per permit per five-year period, which is the cost of a facility inspection every five years. The department considered several alternatives to the new requirement for a facility inspection at least once every five years. The department considered the status quo, which was rejected because the intent of the rule is to strengthen the department’s confidence in biosecurity measures taken by permittees, many of which are located in areas that are low-lying or subject to extreme weather events that could result in escape or release of controlled exotic species and are currently not inspected except for initial permit issuance or following permit amendment or permit reinstatement following permit lapse. The department also considered requiring a facility inspection no less frequently than once every 10 years. This alternative was rejected because the 10-year interval provides inadequate risk assurance generally, but especially with facilities that have a history of noncompliance and facilities that by the nature of their extent, infrastructure, location, or inventory warrant more frequent inspection.

        The proposed amendment will have an adverse economic impact on persons required to comply with the rule as proposed. Those impacts will be identical to the small and microbusiness impacts discussed previously in this preamble.

        There will be no adverse economic effect on rural communities as a result of the proposed amendment.

        (D) 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.

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

        (F) 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.

        (G) 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 neither create nor eliminate a government program; not result in an increase or decrease in the number of full-time equivalent employee needs; not result in a need for additional General Revenue funding; not affect the amount of an existing fee (but will impose an existing inspection fee with greater frequency); not create or expand an existing regulation; not increase or decrease the number of individuals subject to regulation; and not positively or adversely affect the state’s economy.

4. Request for Public Comment.

        Comments on the proposal may be submitted to Ken Kurzawski at (512) 389-4591, e-mail: ken.kurzawski@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, §66.007, which authorizes the department to make rules necessary to authorize the import, possession, sale, or introduction of harmful or potentially harmful exotic fish.

        The proposed amendment affects Parks and Wildlife Code, Chapter 66.

6. Rule Text.

        §53.15. Miscellaneous Fisheries and Wildlife Licenses and Permits.

                 (a) — (f) (No change.)

                 (g) Controlled Exotic Species (fish, shellfish and aquatic plants):

                         (1) water spinach culture permit[exotic species permit fee for new, renewed or amended application requiring facility inspection] — $263;

                         (2) exotic fish or shellfish commercial aquaculture permit[exotic species permit fee for renewed or amended application not requiring facility inspection — $27;].

                                  (A) Initial issuance — $263;

                                  (B) One-year renewal — $74;

                                  (C) Three-year renewal — $168; and

                                  (D) Five-year renewal — $263.

                         [(3) exotic species permit fee for renewal application received more than one year after renewal date — $263.]

                         (3)[(4)] triploid grass carp permit [application]fee — $16, plus $2 per triploid grass carp requested (the $2 per fish fee is refundable if the permit application is denied);

                         (4)[5] exotic species interstate transit[transport] permit[application fee — individual — $27];

                                  (A) single-use — $27;

                                  (B) one-year authorization — $105.

                         (5)([6]research, biological control production, zoological display, and limited special purpose permits (other than for triploid grass carp); initial, renewal, or amendment requiring facility inspection — $263[exotic species interstate transport permit application fee — annual — $105].

                         (6) research, biological control production, zoological display, and limited special purpose permits (other than for triploid grass carp); initial, renewal or amendment not requiring facility inspection — $27. 

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

        Issued in Austin, Texas, on


Work Session Item No. 19
Presenter: Ted Hollingsworth

Work Session
Grant of Pipeline Easements – Brazoria County
Approximately 30 Acres at the Justin Hurst Wildlife Management Area
Request Permission to Begin the Public Notice and Input Process
August 26, 2020

I. Executive Summary: Sentinel Midstream (Sentinel) and Texas GulfLink, LLC (GulfLink) request easements across the Justin Hurst Wildlife Management Area (WMA) for the installation and maintenance of one 36-inch pipeline and one 42-inch pipeline.

II. Discussion: The Justin Hurst WMA consists of 14,734 acres of coastal prairies, bottomland hardwoods, and marshes and serves as significant habitat for a number of resident and migratory species, including waterfowl and wading birds. It is bordered on the north by the Village of Jones Creek, on the east by Port of Freeport lands, and on the south by the Gulf Intracoastal Waterway. Because of its proximity to port-related industrial development, including a unit of the Strategic Petroleum Reserve; oil, gas, and chemical distribution; and general port commerce, the WMA has received a number of requests for powerline and pipeline easements in recent years.

Sentinel is in the process of designing and seeking permits for crude oil storage and transport facilities, including a tank battery north of the WMA and associated transmission pipelines. The facilities would handle crude oil coming from the Strategic Petroleum Reserve facility at the Port of Freeport and would transport that oil to an offshore loading terminal, which is also currently in the permitting process. Sentinel subsidiary GulfLink proposes to construct one 36-inch pipeline and one 42-inch pipeline across the WMA to transport oil to and from the tank battery, the Strategic Petroleum Reserve, and the offshore loading terminal.

GulfLink requests an easement for a pipeline route that will reduce the length of the easement across the WMA while remaining consistent with its preferred route as identified in its Environmental Impact Statement.  GulfLink has agreed to install all reaches of the pipelines within the WMA by means of horizontal directional drilling to minimize harm to the WMA.

The staff requests permission to begin the public notice and input process.

Attachments – 3

  1. Exhibit A – Location Map
  2. Exhibit B – Vicinity Map
  3. Exhibit C – Map of Requested Easement Route

Work Session Item No. 19
Exhibit A

Location Map for the Justin Hurst Wildlife Management Area in Brazoria County


Work Session Item No. 19
Exhibit B

Vicinity Map for the Justin Hurst Wildlife Management Area (WMA),
60 Miles South of Houston


Work Session Item No. 19
Exhibit C

Map of GulfLink’s Requested Easement Route Shown in Yellow
Justin Hurst Wildlife Management Area Outlined in White


Work Session Item No. 20
Presenters: Colette Barron Bradsby
Rodney Franklin
Greg Creacy

Work Session
Bastrop Fires – Litigation Settlement
August 26, 2020

I.         Executive Summary: Attorneys for the Texas Parks and Wildlife Department will update and advise the Texas Parks and Wildlife Commission regarding the settlement of Texas Parks and Wildlife Department v. Asplundh Tree Expert Company, Cause No. 423-5475, in Bastrop County District Court.


Work Session Item No. 21
Presenter: Colette Barron Bradsby

Work Session
Litigation Update
August 26, 2020

I.      Executive Summary:  Attorneys for the Texas Parks and Wildlife Department (TPWD) will update and advise the Texas Parks and Wildlife Commission regarding pending or anticipated litigation, including but not limited to the following pending lawsuits:


Work Session Item No. 22
Presenter: Chairman S. Reed Morian

Work Session
Personnel Matters
Performance Evaluation of the Texas Parks and Wildlife Department Executive Director
August 26, 2020

I.      Executive Summary: