Commission Agenda Item No. 5
Presenter: Monica McGarrity

Action
Exotic Harmful or Potentially Harmful Fish, Shellfish, and Aquatic Plants and Fee Rules
Recommended Adoption of Proposed Changes
November 10, 2020

I.      Executive Summary: With this item, the staff seeks adoption of proposed amendments to rules governing exotic 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:

• Reorganizing regulations, mostly by synthesizing topically from multiple subsections;
• More succinctly defining exotic species permit categories in a single section;
• Providing for multi-year permits for commercial aquaculture with regular inspections and reducing the reporting burden on tilapia sellers;
• Creating a permit exemption to accommodate for the increase in popularity of the use of aquaponics for raising tilapia in escape-free systems and allowing the use of tilapia species more suitable for aquaponics;
• Creating allowances to accommodate a change in businesses practices as more businesses that sell fish for pond stocking are purchasing fish from aquaculturists, rather than culturing fish themselves, and delivering the fish directly to the customers or to a distribution point where the customers pick up the fish;
• Allowing the use of multiple tilapia species for private pond stocking to address hybridization and inability to identify individual species and addressing potential conservation implications of pond stocking of these tilapia species in instances where there is escape potential; and
• Creating allowances for removal and disposal of zebra mussels, applesnails, and aquatic plants from around infrastructure, docks, pumps, and other debris.

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 their associated diseases into public waters. The proposed amendments would enhance rule organization and address 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.

At the Commission Work Session meeting on August 26, 2020, the Texas Parks and Wildlife Department staff was authorized to publish the proposed rules in the Texas Register for public comment. The proposed rules appeared in the September 25, 2020, issue of the Texas Register (45 TexReg 6707 and 6714). A summary of public comment on the proposed rules will be presented at the time of the hearing.

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

“The Texas Parks and Wildlife Commission adopts §§57.111-57.128, concerning the Exotic Harmful or Potentially Harmful Fish, Shellfish, and Aquatic Plants rules and §53.15, concerning Miscellaneous Fisheries and Wildlife Licenses and Permits fees, with changes as necessary to the proposed text as published in the September 25, 2020, issue of the Texas Register (45 TexReg 6707 and 6714).”

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Commission Agenda Item No. 5
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 definition of “aquaculturist or fish farmer” and “cultured species.” 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 Association of Zoos and Aquariums (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 §57.113.

        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 terms as well as a reference to the phylum to which the definition applies, which is necessary for purposes of precision.

        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.  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 clarify 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 who 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 be 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) contains this requirement, but also stipulates that Pacific blue shrimp be cultured under quarantine conditions. Staff has 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(l) 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 expressly state that intent 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 by reducing both 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 §57.118(l) would provide for the department to prescribe a disposition protocol for water spinach following a department decision to deny permit issuance or renewal, which is necessary to ensure that water spinach that can no longer be legally possessed is not disposed of in a way that constitutes a threat to native ecosystems.

        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 during discharge events in any way so as to bypass screens or locations where screens should be in place.

        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 that intent.

        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 complexity. 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 Texas Department of Agriculture (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 members 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 would be 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 account 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, and 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 no 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); and

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

4. Request for Public Comment.

        Comments on the proposed rules may be sent to Ken Kurzawski, Texas Parks and Wildlife Department, 4200 Smith School Rd, Austin, Texas 78744; (512) 392-4591; email: ken.kurzawski@tpwd.texas.gov; or via the department website at www.tpwd.texas.gov.

5. Statutory Authority.

        The amendment and new rules are 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 and new rules affect Parks and Wildlife Code, Chapter 66.

6. 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 [A nonindigenous] aquatic plant, fish, or shellfish not indigenous to[not normally found in public water of] 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 Water Code,[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 Typhaceae (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 Aquatic Vegetation Management).

                 (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 (relating to General Provisions and Exceptions) 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.

                 (l) 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 (h) 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 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 .

        §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) The holder of a limited special purpose permit 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.   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:

                                  (1) 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);

                                  (2) any other permit or records required by this subchapter; and

                                  (3) documentation of current permits or authorizations required as a prerequisite for any permits issued under this subchapter and issued under the authority of:

                                          (A) Water Code, Chapter 26; and

                                          (B) 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 .

                         (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); or

                         (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 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.

        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 repeals are 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 repeals affect Parks and Wildlife Code, Chapter 66.

§57.112. General Rules.

§57.113. Exceptions.

§57.114. Health Certification of Harmful or Potentially Harmful Exotic Shellfish.

§57.115. Transportation of Harmful or Potentially Harmful Exotic Species.

§57.116. Exotic Species Transport Invoice.

§57.117. Exotic Species Permit: Application Requirements.

§57.118. Exotic Species Permit Issuance.

§57.119. Exotic Species Permit: Requirements for Permits.

§57.120. Exotic Species Permit: Expiration and Renewal.

§57.121. Exotic Species Permit—Amendment.

§57.122. Permit Denial Review.

§57.123. Exotic Species Permit Reports.

§57.124. Triploid Grass Carp; Sale, Purchase.

§57.125. Triploid Grass Carp Permit; Application, Fee.

§57.126. Triploid Grass Carp Permit; Terms of Issuance.

§57.127. Triploid Grass Carp Permit; Denial.

§57.128. Exotic Species Permits, Triploid Grass Carp Permits; Revocation.

§57.129. Exotic Species Permit: Private Facility Criteria.

§57.130. Exotic Species Interstate Transport Permit.

§57.131. Exotic Species Interstate Transport Permit: Application and Issuance.

§57.132. Exotic Species Interstate Transport Permit: Permittee Requirements.

§57.133. Exotic Species Interstate Transport Permit: Expiration and Renewal.

§57.134. Wastewater Discharge Authority.

§57.135. Memorandum of Understanding between the Texas Parks and Wildlife Department, the Texas Commission on Environmental Quality, and the Texas Department of Agriculture.

§57.136. Special Provisions — Water Spinach.

§57.137. Penalties.

        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

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Commission Agenda Item No. 5
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