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Executive Summary: Staff seeks adoption of proposed rule amendments resulting from the third and final stage of the quadrennial review of Texas Parks and Wildlife Department (TPWD) regulations, as required by the Texas Administrative Procedure Act. The proposed rulemaking affects Title 31, Chapters 57 (Fisheries) and 58 (Oysters, Shrimp, and Finfish) of the Texas Administrative Code. Staff also seeks adoption of the completed rule review (i.e., readoption of the remaining unchanged rules).
Resumen ejecutivo: El personal busca la adopción de las enmiendas propuestas a las reglas como resultado de la tercera y última etapa de la revisión cuatrienal de las regulaciones del Departamento de Parques y Vida Silvestre de Texas (TPWD), según lo requiere la Ley de Procedimiento Administrativo de Texas. La reglamentación propuesta afecta el Título 31, Capítulos 57 (Pesca) y 58 (Ostras, camarones y peces) del Código Administrativo de Texas. El personal también busca la adopción de la revisión de reglas completa (es decir, la readopción de las reglas restantes sin cambios).
LEGISLATIVE RULES REVIEW
CHAPTER 57. FISHERIES
PROPOSAL PREAMBLE
1. Introduction.
The Texas Parks and Wildlife Department proposes amendments to 31 TAC §§57.156, 57.252, and 57.253, concerning Fisheries.
The proposed amendment to §57.156, concerning Definitions, would remove a reference to a publication that no longer is applicable to the rule. The Texas Parks and Wildlife Commission finds that removing the reference is necessary to eliminate possible confusion.
The proposed amendment to §57.252, concerning General Provisions, would, for the sake of clarity, add a provision repeating the statutory prohibition (Parks and Wildlife Code, §66.015) of the act of introducing any species of fish, shellfish, or aquatic plant into the public water of the state without a permit issued by the department.
The proposed amendment to §57.253, concerning Permit Application, would eliminate subsection (c)(2)(B)(i), which is no longer necessary because the Texas Department of Agriculture no longer regulates aquaculture.
The proposed amendments are a result of the department’s review of its regulations under the provisions of Government Code, §2001.039, which requires each state agency to review each of its regulations no less frequently than every four years and to re-adopt, adopt with changes, or repeal each rule as a result of the review.
2. Fiscal Note.
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 accurate department regulations.
There will be no adverse economic effect on persons required to comply with the rules as proposed, as the rules apply only to internal department administrative processes.
(B) Under the provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses, micro-businesses, or rural communities. As required by Government Code, §2006.002(g), the Office of the Attorney General has prepared guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small and microbusinesses and rural communities. Those guidelines state that an agency need only consider a proposed rule’s direct adverse economic impacts to determine if any further analysis is required. The department considers “direct economic impact“ to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services.
The department has determined that the proposed rules would result in no direct economic effect on any small businesses, micro-businesses, or rural community, as the rules apply only to internal department administrative processes and not to any business or person. Therefore, neither the economic impact statement nor the regulatory flexibility analysis described in Government Code, Chapter 2006, is required.
(C) The department has not drafted a local employment impact statement under the Administrative Procedures Act, §2001.022, as the agency has determined that the rules as proposed will not impact local economies.
(D) The department has determined that Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rules.
(E) The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rules.
(F) In compliance with the requirements of Government Code, §2001.0221, the department has prepared the following Government Growth Impact Statement (GGIS). The rules as proposed, if adopted, will:
(1) not 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;
(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 Robert Macdonald at (512) 389-4775, e-mail: robert.macdonald@tpwd.texas.gov. Comments also may be submitted via the department’s website at http://www.tpwd.texas.gov/business/feedback/public_comment/.
5. Statutory Authority.
The amendment is proposed under Parks and Wildlife Code, §78.006, which authorizes the to regulate the taking, possession, purchase, and sale of mussels and clams.
The proposed amendment affects Parks and Wildlife Code, Chapter 11.
6. Rule Text.
§57.156. Definitions. The following words and terms, when used in these sections, shall have the following meanings, unless the context clearly indicates otherwise.
(1) (No change.)
(2) Freshwater mussel — Bivalve mollusks of the family Unionidae [(collectively including Amblimidae and Margaritiferidae) as listed by the American Fisheries Society Special Publication 29].
(3) – (5) (No change.)
This department 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 amendments are proposed under the authority of Parks and Wildlife Code, §66.007, which requires the department to make rules to carry out the provisions of that section.
The proposed amendments affect Parks and Wildlife Code, Chapter 66.
§57.252. General Provisions.
(a) No person may place any species of fish, shellfish, or aquatic plant into the public water of the state without a permit issued by the department.
(b)[(a)] An offshore aquaculture permit under this subchapter may be issued to an individual, corporation, company, or other entity that meets all requirements of Texas law for transacting business in this state and the requirements of this subchapter applicable to offshore aquaculture permits.
(c)[(b)] A permit under this subchapter other than for an offshore aquaculture facility may be issued to a named individual only and not to a corporation, partnership, or other entity.
(d)[(c)] A permit issued under this subchapter shall not be sold or transferred except with the approval of the department.
(e)[(d)] Except as provided by the terms and conditions of the permit, a one-time introduction permit, for releases other than those made into an offshore aquaculture facility, is valid for 60 days from the date of issuance or until the permitted introduction has been completed, whichever comes first.
(f)[(e)] For offshore aquaculture facilities:
(1) – (7) (No change.)
(g)[(f)] A holder of an offshore aquaculture permit must:
(1) – (5) (No change.)
(h)[(g)] A permit is not required for any person, while fishing, to place goldfish (Carassius auratus), common carp (Cyprinus carpio), native shrimp, crabs, crawfish and nongame fish into public waters or to immediately release any fish that does not comply with size and bag limits for that species.
(i)[(h)] An employee of the department acting at the direction of the executive director is exempt from the permit requirements specified by these sections.
§57.253. Permit Application.
(a) – (b) (No change.)
(c) An application for an offshore aquaculture facility:
(2) must include:
(A) (No change.)
(B) proof that the applicant has obtained:
(i) [a valid license issued by the Texas Department of Agriculture to operate an aquaculture facility (Agriculture Code Chapter 134);]
[(ii)] all applicable state and/or federal permits or authorizations relating to water quality standards;
(ii)[(iii)] all applicable state and federal permits, authorizations, or clearances related to navigational hazards; and
(iii)[(iv)] any approval or permit required by the General Land Office;
(C) – (G) (No change.)
(d) – (f) (No change.)
Legislative Rule Review – Chapter 57. Fisheries
CHAPTER 58. OYSTERS, SHRIMP, AND FINFISH
The Texas Parks and Wildlife Department proposes amendments to 31 TAC §58.21 and §58.164.
The proposed amendment to §58.21, concerning Taking or Attempting to Take Oysters from Public Oyster Beds; General Rules, would eliminate provisions that expired on their own terms on November 1, 2024, and are therefore no longer necessary.
The proposed amendment to §58.164, concerning Shrimping Inside Waters — Commercial Bait Shrimping, would make nonsubstantive changes to insert a missing preposition in subsection (b)(2)(A) and eliminate duplicated language in subsection (d). The Texas Parks and Wildlife Commission finds that the alterations are prudent because they eliminate possible confusion.
Mr. Macdonald also has determined that for each of the first five years the rules as proposed are in effect:
(A) The public benefit anticipated as a result of enforcing or administering the proposed rules will be accurate regulations.
There will be no adverse economic effect on persons required to comply with the rules as proposed.
(B) Under the provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses, micro-businesses, or rural communities. As required by Government Code, §2006.002(g), the Office of the Attorney General has prepared guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small and microbusinesses and rural communities. Those guidelines state that an agency need only consider a proposed rule’s direct adverse economic impacts to determine if any further analysis is required. The department considers “direct economic impact “to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services.
The department has determined that the proposed rules do not affect small businesses, micro-businesses, or rural communities. Therefore, neither the economic impact statement nor the regulatory flexibility analysis described in Government Code, Chapter 2006, is required.
(1) neither create nor eliminate a government program;
(4) not affect the amount of any fee;
(5) not create a new regulation;
(6) not limit, expand, or repeal an existing regulation;
(7) neither increase nor decrease the number of individuals subject to regulation; and
(8) not positively or adversely affect the state’s economy.
Comments on the proposed rules may be submitted to Robert Macdonald (512) 389-4775, email: robert.macdonald@tpwd.texas.gov. Comments also may be submitted via the department’s website at http://www.tpwd.texas.gov/business/feedback/public_comment/.
The amendment is proposed under Parks and Wildlife Code, §76.301, which authorizes the commission to regulate the taking, possession, purchase and sale of oysters, including prescribing the times, places, conditions, and means and manner of taking oysters.
The proposed amendment affects Parks and Wildlife Code, Chapter 76.
§58.21. Taking or Attempting to Take Oysters from Public Oyster Beds: General Rules.
(c) Area Closures.
(2) No person may take or attempt to take oysters within an area described in this paragraph. The provisions of subparagraphs (A)(i)-(ii) cease effect on November 1, 2025. The provisions of subparagraph (A)(iii)-(iv) cease effect on November 1, 2026. [The provisions of subparagraph (B) of this paragraph cease on November 1, 2024.]
(A) Galveston Bay.
(i) – (iv) (No change.)
[(B) Espiritu Santo Bay- Josephine’s Reef. The area within the boundaries of a line beginning at 28° 18’ 42.6"N, 96° 35’ 48.9"W (28.311833°N, -96.596916°W; corner marker buoy A); thence, to 28° 18’ 34.7"N, 96° 35’ 42.0"W (28.309651°N, -96.594988°W; corner marker buoy B); thence to 28° 18’ 22.1"N, 96° 36’ 00.3"W (28.306142°N, -96.600075°W; corner marker buoy C); thence to 28° 18’ 30.0"N, 96° 36’ 07.2"W (28.308324°N, -96.602004°W; corner marker buoy D); and thence back to corner marker buoy A.]
(B)[(C)] Christmas Bay, Brazoria County.
(C)[(D)] Carancahua Bay, Calhoun and Matagorda County.
(D)[(E)] Powderhorn Lake, Calhoun County.
(E)[(F)] Hynes Bay, Refugio County.
(F)[(G)] St. Charles Bay, Aransas County.
(G)[(H)] South Bay, Cameron County.
(H)[(I)] Mesquite Bay, Aransas and Calhoun counties.
(I)[(J)] Carlos Bay, Aransas County. The area within the boundaries of Carlos Bay from the border of Mesquite Bay to a line beginning at 28° 06’ 52.19"N, 96° 55’ 32.52"W (28.11450°N, -96.92570°W) and ending at 28° 06’ 38.19"N, 96° 53’ 17.41"W (28.11061°N, -96.88817°W).
(J)[(K)] Ayres Bay, Calhoun County. The area within the boundaries of Ayres Bay from the border of Mesquite Bay to a line beginning at 28° 12’ 50.18"N, 96° 48’ 44.53"W (28.21394°N, -96.81237°W) and ending at 28° 11’ 17.05"N, 96° 47’ 32.38"W (28.18807°N, -96.79233°W).
(K)[(L)] Areas along all shorelines extending 300 feet from the water’s edge, including all oysters (whether submerged or not) landward of this 300-foot line.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.
The amendment is proposed under Parks and Wildlife Code, §77.007, which authorizes the commission to regulate the catching, possession, purchase, and sale of shrimp.
The proposed amendment affects Parks and Wildlife Code, Chapter 77.
§58.164. Shrimping Inside Waters—Commercial Bait Shrimping.
(a) (No change.)
(b) Commercial bait-shrimp season.
(2) Legal shrimping hours.
(A) From August 15 through March 31 legal shrimping hours are 30 minutes before sunrise to 30 minutes after sunset.
(B) – (C) (No change.)
(c) (No change.)
(d) Size limits [Size limits]: Shrimp of any size may be retained when caught lawfully during commercial bait-shrimp operations in inside waters.
(e) (No change.)
Legislative Rule Review – Chapter 58. Oysters, Shrimp, and Finfish
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