Permits to Possess or Sell Nongame and Exotic Fish Taken from Public Waters – Proposed Changes

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PERMITS TO SELL FISH TAKEN FROM PUBLIC FRESH WATERS

PROPOSAL PREAMBLE

1. Introduction.

        The Texas Parks and Wildlife Department proposes amendments to 31 TAC §§57.377-379, 57.381, 57.382, and 57.384, concerning Applicability: Nongame Fishes. The proposed amendments would add selected exotic species of fish to the list of species for which the department may issue permits authorizing take from public waters for commercial purposes, remove several species from that list, and make clarifying and housekeeping-type changes to improve accuracy and readability.

        The proposed amendment to §57.377, concerning Definitions, would add language to clarify that the rules include and are applicable to exotic species in addition to indigenous species. Under Parks and Wildlife Code, Chapter 61, the commission is authorized to regulate the take and possession of aquatic animal life from public fresh water. Parks and Wildlife Code, Chapter 66, delegates to the commission the authority to designate nonindigenous (exotic) species of fish as harmful or potentially harmful exotic aquatic species and regulate their importation, possession, and sale. Under Parks and Wildlife Code, Chapter 67, the department is delegated the authority to manage all indigenous species of fish not designated by rule as game fish (i.e., nongame fish) if necessary to properly manage the species. The proposed amendment is intended to eliminate possible confusion, and is made throughout this rulemaking.

        The proposed amendment to §57.378, concerning Applicability: Nongame Fishes, would retitle the section to be generic with respect to the effect of the subchapter, add silver carp and suckermouth armored catfish to the list of species for which a permit may be issued for commercial take, remove freshwater drum, Rio Grande cichlid, and minnows from the list, and add a clarifying statement that no permit under Chapter 57, Subchapter A (Harmful or Potentially Harmful Fish, Shellfish, and Aquatic Plants) is required for an activity authorized under a permit issued under Subchapter E. The proposed amendment also replaces the current graphic list of affected species with a list that conforms to the conventional rule format.

        Silver carp are native to eastern Asia and were introduced to private fish farms and wastewater treatment facilities in the United States during the 1970s and 1980s as a biological control agent to reduce algae growth and improve water-quality conditions in ponds. By 1980, they had escaped into the Mississippi River system during high-water flooding events and subsequently spread rapidly throughout the Mississippi River drainage. They have become established and potentially problematic in more than ten states, where they compete with native species and pose hazards to boaters because they can weigh up to 60 pounds and are capable of leaping out of the water when startled such as by boat noise, sometimes striking boaters. Silver carp are now well-documented in the Red River and all its Texas tributaries below Lake Texoma but are not yet highly abundant. There are U.S. and international markets for wild-caught silver carp and regional efforts underway to incentivize harvest and the proposed amendment would allow their commercial sale. The proposed amendment is intended to encourage removal of this species from Texas fresh waters with the additional benefit of commercial incentive.

        Suckermouth armored catfish are native to Central and South America and were imported to the U.S. via the aquarium trade to control algae. Aquarists have been known to dump the contents of fish tanks for various reasons, which is believed to have resulted in the introduction of this species to Texas waters where high abundance has been documented in some locations. This species competes with indigenous fishes, inadvertently consumes the eggs of other fishes through its feeding behavior, and may cause serious disruptions in food webs and native ecosystems. They are especially problematic in spring-influenced river systems such as those found in the Edwards Plateau of Texas but are also widespread in the Houston and South Texas regions. Additionally, their burrowing behavior causes destabilization and erosion in riverbanks, earthen retention structures, and under concrete retention structures, with resulting potential for economic damage. There has been commercial interest in this species from pet food producers. The proposed amendment is intended to encourage removal of this species from Texas fresh waters with the additional benefit of a commercial incentive.

        Freshwater drum are indigenous to Texas and are recreationally and ecologically important. The species serves as a reproductive host for numerous species of native freshwater mussels, many of which are threatened, endangered, or recognized as species in need of conservation intervention. The department has determined that continued commercial harvest of freshwater drum is inconsistent with conservation and recovery goals for imperiled freshwater mussels; therefore, the proposed amendment would remove the species from the list of species for which a permit under the subchapter could be issued.

        Similarly, the proposed amendment would remove minnows from the list of species for which a permit under the subchapter is authorized. The department has determined that 64 percent of the minnow genera currently authorized for commercial harvest in Texas include species that are threatened, endangered, or species of greatest conservation need—37 imperiled species in total. Because of their small size and similarity of appearance, the department believes it is prudent to prohibit all commercial harvest in order to ensure the ability of all minnow species to perpetuate themselves, as well as to forestall or prevent additional state or federal listings as threatened or endangered species.

        Finally, the proposed amendment would remove the Rio Grande cichlid from the list of species authorized for commercial harvest. The Rio Grande cichlid is native to Texas and is the only indigenous cichlid native to the U.S. Known to be a vigorous fighter, it has become increasingly popular as a sport fish, particularly among fly fishers. Commercial take has become almost non-existent and the department believes that removing it from the list aligns with recreational fisheries management goals, especially for Central Texas creeks and rivers where sport fishing guides offer trips targeting the species.

        The proposed amendment to §57.382, concerning Harvest and Sales Reports, would eliminate the current contents of the section other than the requirement to retain sales receipts and insert a reference to the requirements of §57.993, concerning Commercial Harvest Report. Under the provisions of §57.993, all persons who engage in commercial harvest activities are required to report those activities to the department; therefore, the requirements of current paragraphs (1) and (2) of §57.382 are unnecessary, since that data is already captured. Therefore, the contents of current paragraph (1) and (2) can be replaced with a simple reference to the reports required under §57.993.

        The proposed amendment to §57.384, concerning Refusal to Issue, would eliminate current paragraph (4), which is no longer necessary. In 2022, the department promulgated Chapter 56 to comply with recommendations of the Texas Sunset Advisory Commission to establish a uniform process to govern department decisions to refuse issuance or renewal of non-recreational licenses and permits for which such processes are not prescribed by statute. The Sunset Commission also recommended a similar process for agency decisions to suspend or revoke such licenses and permits. The permit established by this subchapter is subject to the provisions of Chapter 56; thus, paragraph (4) is no longer necessary. The proposed amendment would retitle the section accordingly to reflect the content of the section.

        The proposed amendments to §57.379, concerning Prohibited Acts, §57.381, concerning Permit Specifications and Requirements, and §57.382, concerning Harvest and Sales Reports, would make conforming changes as discussed earlier to reflect the applicability of the rules to all species of fish taken from public waters for commercial purposes.

2. Fiscal Note.

        Robert Macdonald, Regulations Coordinator, has determined that for each of the first five years that the rules as proposed are in effect, there will be no fiscal implications to state or local governments as a result of administering or enforcing the rules.

3. Public Benefit/Cost Note.

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

        (A) The public benefit anticipated as a result of enforcing or administering the proposed rules will be the discharge of the agency’s statutory duty to manage and conserve aquatic resources for the enjoyment of present and future generations.

        There could be adverse economic effects on persons required to comply with the rules, primarily associated with the removal of minnows, freshwater drum, and
Rio Grande cichlid from the list of species that may be taken commercially. Those economic effects are addressed elsewhere in this preamble in the discussion of potential impacts to small businesses and microbusinesses. The department notes that there also could be positive economic effects as a result of the rules, as the proposed amendments, if adopted, would make two additional species of fish available for commercial harvest under a permit.

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

        The department has determined that proposed rules could result in direct economic effects on small businesses and microbusinesses.

        Between 2014 and 2023, ten permittees authorized to commercially harvest freshwater drum reported total commercial sales of $5,911. The permittee reporting the highest sales over the ten-year period reported total sales of $1,800. For the purposes of this analysis, the department estimates that the worst-case scenario for any permittee would be a sales loss of approximately $180 dollars per year or less.

        Department records indicate only two permittees reported commercial harvest of Rio Grande cichlid between 2014 and 2023, with a total sales value of $423. No commercial harvest has been reported since 2020. For the purposes of this analysis, the department estimates that if the rules as proposed are adopted, the worst-case scenario for any permittee would be a sales loss of less than $50 per year.

        Department records indicate that eight persons are permitted to commercially harvest minnows; however, there are no reported sales since 2017 and less than $100 in sales reported between 2014 and 2017. For the purposes of this analysis, the department estimates that if the rules as proposed are adopted, the worst-case scenario for any permittee would be a sales loss of less than $50 per year.

        The department considered several alternatives to the rules as proposed.

        The first alternative considered was to maintain status quo. This alternative was rejected because the removal of freshwater drum, minnows, and Rio Grande cichlid is intended to achieve conservation and management objectives that would otherwise be frustrated.

        A second alternative considered was to establish seasons and bag limits for the commercial take of the freshwater drum, minnows, and Rio Grande cichlid. This alternative was rejected because the benefits of such an approach would not be cost-effective in light of having to tailor seasons and bag limits for a variety of locations that might or might not be targeted for commercial exploitation, especially in light of the very low commercial activity levels reported.

        The department has determined that the rules will not result in economic effects on rural communities, as the rules do not directly regulate any rural community.

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

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

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

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

        (1) neither create nor eliminate a government program;

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

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

        (4) not affect the amount of an existing fee;

        (5) not create, expand, or repeal an existing regulation, but will modify an existing regulation by removing three categories of fish from the list of species that may be commercially harvested under a department permit and adding two species of fish to that list;

        (6) not increase or decrease the number of individuals subject to regulation; and

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

4. Request for Public Comment.

        Comments on the proposed rules may be submitted to Michael Tennant, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-8754; email: Michael.Tennant@tpwd.texas.gov or via the department website at www.tpwd.texas.gov.

5. Statutory Authority.

        The amendments are proposed under Parks and Wildlife Code, Chapter 61, which authorizes the commission to regulate take and possession of aquatic animal life and the means, methods, and places in which it is lawful to take or possess aquatic animal life (including public fresh water); Chapter 66, Subchapter A, which authorizes the department to make rules governing the importation, possession, and sale of exotic harmful or potentially harmful fish; and Chapter 67, which authorizes the commission to establish any limitation of the take, possession, propagation, transportation importation, exportation, sale, and offering for sale of nongame wish necessary to manage those species,

        The proposed amendments affect Parks and Wildlife Code, Chapters 61, 66, and 67.

6. Rule Text.

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

                 (1) Affected species — For purposes of this subchapter, all nongame fish and exotic fish listed in §57.378 of this title (relating to Applicability; Affected Species.

                 (2)[(1)] Department — The Texas Parks and Wildlife Department or any authorized employee thereof.
                 (3) Exotic fish — As defined in Parks and Wildlife Code §66.007.

                  (4)[(2]Game fish — As defined in §57.971(15)(A) of this title (relating to Definitions).                              (5)[(3)] Nongame fish — For the purposes of this subchapter, all[All] indigenous or native species not defined as game fish, except endangered and threatened fish, which are defined and regulated under Chapter 65, Subchapter G of this title (relating to Threatened and Endangered Nongame Species).

                 (6)[(4)] Public freshwater — All of the state rivers, streams, creeks, bayous, reservoirs, lakes, and portions of those freshwaters not defined as coastal waters in §57.971 of this title (relating to Definitions), where public access is available without discrimination.

                 (7)[(5)] Shad — Gizzard and threadfin shad (Dorosoma spp.).

         §57.378. Applicability: Affected Species[Nongame Fishes].

                 (a) Nongame Species. A permit to sell the following species of [nongame] fish taken from public fresh water may be issued if the department determines that it[the sale] is necessary to properly manage the species.

[Figure: 31 TAC §57.378]

                         (1) Gars (Lepisosteus spp. and Atractosteus spp.);

                         (2) Bowfin (Amia calva);

                         (3) Shads (Dorosoma spp.);

                         (4) Common carp (Cyprinus carpio);

                         (5) Suckers (buffalo) (Ictiobus spp);

                         (6) River carpsucker (Carpiodes carpio);

                         (7) Bullhead catfishes (Ameiurus spp.);

                         (8) Silversides (Menidia beryllina and Membras Martinica); and

                         (9) Mullet (Mugil spp.).

                 (b) Exotic fish. A permit to sell the following species of fish taken from public fresh water may be issued if the department determines that it will encourage the removal of undesirable species.

                         (1) Goldfish (Carassius auratus);

                         (2) Grass carp  (Ctenopharyngodon Idella);

                         (3) Bighead carp (Hypophthalmichthys nobilis);

                         (4) Tilapia (Oreochromis spp.);

                         (5) Silver carp (Hypophthalmichthys molitrix); and

                         (6) Suckermouth armored catfishes (Hypostomus spp. and Pterigoplichthys spp.).

                 (c)  Hybrids among species listed in subsection (a) of this section may be sold under a permit issued under this subchapter authorizing the take of at least one of the species.

                 (d) No permit under Chapter 57, Subchapter A, of this chapter is required for an activity authorized under a permit issued under this subchapter; however, all controlled exotic species taken under this subchapter shall be subject to the provisions of §57.113(e) of this title (relating to General Provisions and Exceptions).

        §57.379 Prohibited Acts. Except as provided by this subchapter it is unlawful for any person to:

                 (1) sell or offer for sale a [nongame] fish of the species listed in §57.378 of this title (relating to Applicability: Affected Species[Nongame Fishes]) taken from the public fresh water of the state, unless the person:

                         (A) – (B) (No change.)

                 (2) (No change.)

                 (3) to retain or possess any species of[game fish or nongame] fish not listed in a valid permit while engaged in activities authorized by the permit;

                 (4) to fail to immediately return to the water any species of fish not listed in the permit caught while engaged in activities authorized by the permit; or

                 (5) (No change.)

        §57.381. Permit Specifications and Requirements.

                 (a) A permit issued under this subchapter shall specify:

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

                         (3) the [nongame] fish species for which take and/or sale is allowed; and

                         (4) the types and number of devices that are lawful for use in permitted activities[which may be used to take nongame fish].

                 (b) – (h) (No change.)

        §57.382. Reporting and Recordkeeping[Harvest and Sales Reports].

                 (a) Permittee shall comply with the provisions of §57.993 of this title (relating to Commercial Harvest Report)[Annual harvest and sales reports must be submitted by the permittee to the department on forms provided by the department].

                        [(1) Annual reports must be received by the department on or before the 10th day of January each year.]

                         [(2) Reports must include for each species taken:]

                                  [(A) species name;]

                                  [(B) number of individuals;]

                                  [(C) number of pounds;]

                                  [(D) means and methods used to take each species;]

                                  [(E) water body from which each species was taken; and]

                                  [(F) price received, per pound, of each species sold.]

                         (b)[(3)] Permittee must maintain sales receipts for all [nongame] fish sold for a period of one year from date of sale, and these receipts must be available for examination by authorized employees of the department.

        §57.384. Special Conditions[Refusal to Issue]. The department may refuse to authorize any prospective activity on any water body or impose restrictions on permitted species, water bodies, devices, or live transfer if the department determines that the prospective take:

                 (1) [the prospective take of nongame fish] is detrimental to the target species, species listed as endangered or threatened, or any other aquatic species;

                 (2) [the prospective take of nongame fish] is likely to increase the risk of transfer or spread of harmful or potentially harmful exotic fish or shellfish; or

                 (3) [the prospective take of nongame fish] cannot be accomplished in a manner consistent with the management goals and objectives of the department[;]

                 [(4) the applicant or assistant(s) seeking renewal is not in compliance with provisions of this subchapter].

        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