Propose Amendments to Cultivated Oyster Mariculture Program Rule

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CULTIVATED OYSTER MARICULTURE ALLOWABLE TRIPLOID USE

PROPOSAL PREAMBLE

1. Introduction.

          The Texas Parks and Wildlife Department proposes an amendment to 31 TAC §58.353, concerning Cultivated Oyster Mariculture (COM). The amendment would allow for expanded triploid seed sourcing opportunities for oyster mariculture permittees.

        The 86th Texas Legislature in 2019 enacted House Bill 1300, which added new Chapter 75 to the Texas Parks and Wildlife Code and delegated to the Parks and Wildlife Commission the authority to regulate the process of growing oysters in captivity. In turn, the Texas Parks and Wildlife Commission in 2020 adopted regulations to implement an oyster mariculture program (45 TexReg 5916).

        At the direction of the commission, the department has reviewed regulations regarding permissible genetic origins of triploid oyster seed for use in mariculture.  The department considered current scientific information, the current biosecurity and genetic integrity protocols used in the program, and feedback from the regulated community regarding seed supply.  Given that the genetic population structure of the northern Gulf stock of the Eastern oyster (Crassostrea virginica) is shared with oysters from the northern portion of the Texas coast, the department has determined that regulations regarding broodstock origin for triploid oysters can be altered to include the entire northern Gulf stock without significant risk to wild Texas oyster populations. The northern Gulf stock ranges from Alabama waters west to the San Antonio Bay system in Texas. There is a mixing zone of the Aransas and Corpus Christi Bay systems between the northern stock and the south Texas stock of the Laguna Madre.

         Hatcheries and nurseries currently supplying seed to Texas mariculture operations produce more frequent and larger batches of triploid oyster seed with northern Gulf origins than those specific to Texas; thus, availability of Texas-specific triploid seed is limited.  Allowing permittees to utilize this more robust seed supply will provide access to a more consistent, stable supply of triploid oyster seed, which in turn is expected to result in COM industry stability and growth.

        The proposed amendment would alter §58.353(h) to require that broodstock must originate from the waters of Texas, Louisiana, Mississippi, or Alabama. Additionally, the phrase “originating from the Gulf” is also added to subparagraph (A) to create structural agreement with subparagraph (B), which is intended to eliminate potential confusion or misunderstanding.

2. Fiscal Note.

        Dr. Lindsay Glass Campbell, Cultivated Oyster Mariculture Program Coordinator, Coastal Fisheries Division, has determined that for each of the first five years that the rule as proposed is in effect, there will be no additional fiscal implications to state or local government as a result of administering the rule as proposed, as department personnel currently allocated to the administration and enforcement of the Cultivated Oyster Mariculture Program will continue to administer and enforce the rules as part of their current job duties.

   3. Public Benefit/Cost Note.

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

                 (A) The public benefit anticipated as a result of enforcing or administering the proposed rule will be expanding oyster seed procurement opportunities for a growing industry, including the ecological benefits provided by oysters in public waters and the production of oysters for public consumption.

                 (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.

        To ensure that this analysis captures every small or microbusiness affected by the proposed rule, the department assumes that most, if not all persons who hold a COM permit qualify as small or microbusinesses. Department data indicate that there are currently 20 fully permitted and 39 conditionally approved cultivated oyster mariculture sites.

        The department has determined that because the rule as proposed does not include any fee, would not change any recordkeeping or reporting requirements, or require additional expense on the part of the regulated community, the rule will not result in direct adverse economic impacts to small businesses, microbusinesses, or rural communities; therefore, neither the economic impact statement nor the regulatory flexibility analysis described in Government Code, Chapter 2006, is required.

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

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

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

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

                (1) 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 a fee;

                (5) not create a new regulation, but modify existing regulations;

                (6) not expand 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.

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

4. Request for Public Comment.

        Comments on the proposed rule may be submitted to Dr. Lindsay Glass Campbell (Coastal Fisheries), at (512) 389-8575 (email: cfish@tpwd.texas.gov). Comments also may be submitted via the department’s website at http://www.tpwd.texas.gov/business/feedback/public_comment/

5. Statutory Authority.

        The amendment is proposed under the authority of Parks and Wildlife Code, §75.0103, which requires the commission to adopt rules to establish a program governing cultivated oyster mariculture, which may establish requirements for the taking, possession, transport, movement, and sale of cultivated oysters; the taking, possession, transport, and movement of broodstock oysters; fees and conditions for use of public resources, including broodstock oysters and public water, and any other matter necessary to implement and administer Parks and Wildlife Code, Chapter 75.

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

6. Rule Text.

        §58.353. General Provisions.

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

                         (h) Unless otherwise specifically authorized by the department in writing, cultivated oyster mariculture is restricted to seed and larvae from native Eastern oyster (Crassostrea virginica) broodstock collected or originating from Texas waters and propagated in a permitted Nursery-Hatchery located in Texas.

                         (1) The department may authorize a person permitted under this subchapter to, on or before December 31, 2033, import:

                                 (A) tetraploid seed, larvae, and/or semen/eggs (germplasm) originating from the Gulf and produced in department-approved out-of-state hatcheries located along the Gulf [of Mexico] for use in cultivated oyster mariculture in this state; and/or

                                  (B) triploid seed, larvae, and/or semen/eggs (germplasm) from a tetraploid line of oysters originating from the Gulf [of Mexico] and crossed with broodstock originating from Texas, Louisiana, Mississippi, or Alabama waters{Texas waters]produced in department-approved out-of-state hatcheries located along the Gulf [of Mexico] for use in cultivated oyster mariculture in this state; and/or

                                  (C) diploid seed, larvae, and/or semen/eggs (germplasm) produced from Texas broodstock at department-approved out-of-state hatcheries located along the Gulf [of Mexico] for use in cultivated oyster mariculture in this state.

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

                 (i) – (w) (No change.)

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

        Issued in Austin, Texas, on