Regulations Committee

Wednesday, 9:00 am, January 24, 2007

Commission Hearing Room
4200 Smith School Road
Austin, TX 78744

Approval of Previous Meeting Minutes

  1. Land and Water Plan Update
    Staff: Robert Cook
  2. 2007-2008 Statewide Hunting and Fishing Proclamation - Permission to Publish
    Staff: Larry McKinney, Ken Kurzawski, Mike Berger
  3. Status of the Nongame Permit Program
    Staff: Matt Wagner
  4. Scientific Breeder Permit Regulations
    (Action Item No. 8)
    Staff: Clayton Wolf
  5. Restricted Species List and Definitions - Harmful or Potentially Harmful Exotic Fish, Shellfish and Aquatic Plant Rules
    (Action Item No. 11)
    Staff: Joedy Gray

Committee Agenda Item No. 1
Presenter: Robert L. Cook

Regulations Committee
Land and Water Plan Update
January 24, 2007

I. Executive Summary: Executive Director Robert L. Cook will briefly update the Commission on the status of the agency's efforts to implement the Land and Water Resources Conservation and Recreation Plan (the Plan).

II. Discussion: In 2001, the 77th Texas Legislature directed that the Texas Parks and Wildlife Department (TPWD) develop a Land and Water Resources Conservation and Recreation Plan (Tex. Park & Wild. Code §11.104). In November 2002, the Texas Parks and Wildlife Commission (the Commission) adopted the first Plan. A revised Plan was adopted by the Commission in January 2005. The Plan is available on the TPWD web site. Executive Director Robert L. Cook will update the Finance Committee on TPWD's recent progress in achieving the Plan's Goals and Objectives as they relate to the Regulations Committee.

The Plan consists of 8 Goals and a total of 56 Objectives. The Goals stated in the Plan are as follows:


Committee Agenda Item No. 2
Presenter: Larry McKinney
Ken Kurzawski
Mike Berger

Regulations Committee
2007-2008 Statewide Hunting and Fishing Proclamation
Proposed Changes
January 24, 2007

I. Executive Summary: This item apprises the committee of proposed changes to the Statewide Hunting and Fishing Proclamation for the 2007-2008 seasons. The changes would:

II. Discussion: Responsibility for establishing seasons, bag limits, and means and methods for taking wildlife resources is delegated to the Texas Parks and Wildlife Commission under Parks and Wildlife Code, Chapter 61. The potential changes are based upon statutory requirements, Commission policy, and suggestions from the regulated community, including scientific investigation and required findings of fact where applicable. The changes are intended to increase recreational opportunity, decrease regulatory complexity where possible, promote enforcement, and provide for the sound biological management of the wildlife resources of the state.


Committee Agenda Item No. 3
Presenter: Matt Wagner

Regulations Committee
Status of the Nongame Permit Program
January 24, 2007

I. Executive Summary: This item is an update on the Nongame Permit Program administered by the Wildlife Diversity and Wildlife Permitting Programs of the Texas Parks and Wildlife Department. Staff from the Law Enforcement Division have also been heavily involved.

II. Discussion: Under Parks and Wildlife Code, Chapter 67, the department is required to develop and administer management programs to ensure the continued ability of nongame species of fish and wildlife to perpetuate themselves successfully, and to conduct ongoing investigations of nongame fish and wildlife to develop information on populations, distribution, habitat needs, limiting factors, and any other biological or ecological data to determine appropriate management and regulatory information.

Nongame species comprise over 90 percent of the wildlife species that occur in Texas. As a practical matter, the department does not possess the fiscal or staffing resources to monitor, survey, or conduct research across the wide diversity of nongame species. Therefore, in 1999 the Commission adopted rules to implement the Nongame Permit Program. The purpose of the program was to function as a 'canary in the coal mine' by tracking collection and sales activities involving specific nongame species of wildlife. By rule, all persons engaging in commercial activities involving affected species are required to possess a Nongame Collector's Permit or Nongame Dealer's Permit, and to report sales and purchases to the department. The department uses the data to determine if specialized investigations are necessary to determine if additional regulatory protection is warranted. Currently the list of affected species is comprised of 5 species of frogs and toads, 4 species of lizards, 10 species of snakes, 20 species of turtles, 2 species of mammals and 1 species of salamander. At least 22 other nongame species, primarily snakes, are known to be collected from the wild for commercial purposes, yet no information on market trends exists. In 2004 and 2005, reports submitted to the department indicate that 36 dealers from 74 counties obtained 19,790 Western diamondback rattlesnakes, 17,279 red-eared sliders, 1,696 marbled whip-tailed lizards, and 1,269 box turtles (three taxa).

Important program issues currently being investigated or addressed by staff include 1) encouraging better compliance with reporting and recordkeeping requirements, 2) consideration of a ban on commercial collection of box turtles and diamondback terrapins, 3) addition of at least 22 species to the list of affected species, and 4) replacement of the list of affected species with a "white-list" of nongame species that may be lawfully collected for commercial purposes. During November and December, 2006, staff held eight meetings around the state with members of various herpetological organizations and members of the regulated community to solicit input on these issues and the status of the program. Approximately 300 stakeholders participated in these meetings and provided a wide range of comments. Staff will formulate specific recommendations to improve the program and address management needs of species in greatest need of conservation attention.


Committee Agenda Item No. 4
Presenter: Clayton Wolf

Regulations Committee
Scientific Breeder Permit Regulations
January 24, 2007

I. Executive Summary: This item presents proposed changes to rules governing the Scientific Breeder's Permit program to:

II. Discussion: Parks and Wildlife Code, Chapter 43, Subchapter L, requires the Commission to establish permits and authorizes the promulgation of rules governing the possession of white-tailed deer and mule deer for scientific, management, and propagation purposes. Following the comprehensive reorganization of the regulations governing the scientific breeder program in 2006, two minor inconsistencies were identified by staff. The proposed regulations (located at Exhibit A) were published in the December 15, 2006 issue of the Texas Register (31 TexReg 10083). Staff will present a summary of public comment at the time of the meeting.

Staff recommends that the commission adopt the proposed motion:

"Texas Parks and Wildlife Commission adopts amendments to §§65.610 and 65.611, concerning Scientific Breeder's Permit rules, with changes as necessary to the proposed text as published in the December 15, 2006 issue of the Texas Register (31 TexReg 10083)."

Attachments - 1

  1. Exhibit A – Proposed Amendments to the Scientific Breeder Regulations

Committee Agenda Item No. 4
Exhibit A

Scientific Breeder's Permit Rules
Proposal Preamble

1. Introduction.

The Texas Parks and Wildlife Department proposes amendments to §§65.610 and 65.611, concerning Scientific Breeder’s Permits. The proposed amendments would correct an inaccurate provision regarding who may receive deer from a scientific breeder on a temporary basis and would remove a reference to a permit that no longer exists.

Current §65.610(b) stipulates that a scientific breeder may transfer deer temporarily for breeding or nursing purposes only to another scientific breeder. In a comprehensive revision of the subchapter adopted earlier this year (31 TexReg 4227), the department intended to restrict the temporary transfer of scientific breeder deer for breeding purposes but did not intend to prevent anyone from temporarily holding deer for nursing purposes. The proposed amendment is necessary to allow this to occur.

Current §65.611, concerning Prohibited Acts, provides that no person may sell deer to another person unless either the purchaser or the seller possesses a purchase permit. The extensive revision of the subchapter earlier this year eliminated both the purchase permit and transport permits and replaced them with a single permit called a transfer permit. The proposed amendment is necessary to eliminate obsolete terminology and to prevent confusion.

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 enforcing or administering the rules.

3. Public Benefit — Cost Note.

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 rules as proposed will be clear and accurate regulations.

(B) There will be no adverse economic effects on small businesses, microbusinesses, or persons required to comply with the amendments as proposed.

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

(D) 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.

4. Request for Public Comment.

Comments on the proposed rules may be submitted to Robert Macdonald, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas, 78744; (512) 389-4775 (e-mail: robert.macdonald@tpwd.state.tx.us).

5. Statutory Authority.

The amendments are proposed under the authority of Parks and Wildlife Code, Chapter 43, Subchapter L, which provides the Commission with authority to promulgate regulations governing the possession of white-tailed deer and mule deer for scientific, management, and propagation purposes.

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

§65.610. Transfer of Deer.

(a) General requirement. No person may remove deer from or accept deer into a permitted facility unless a valid transfer permit on a form provided by the department has been activated as provided in this section.

(b) Transfer by scientific breeder. The holder of a valid scientific breeder's permit may transfer legally possessed deer:

(1) to or from another scientific breeder as a result of sale, purchase or other arrangement;

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

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

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

(5)[(4)] to an individual for the purpose of obtaining medical attention, provided the deer do not leave this state; and

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

(c) Transfer by person other than scientific breeder. An individual who does not possess a scientific breeder's permit may possess deer under a transfer permit if the individual is transporting deer within the state and the deer were legally purchased or obtained from a scientific breeder for purposes of release.

(d) Release.

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

(2) Deer lawfully purchased, possessed, or obtained for stocking purposes may be held in captivity for no more than 30 days:

(A) to acclimate the deer to habitat conditions at the release site;

(B) when specifically authorized by the department;

(C) if they are not hunted prior to release; and

(D) if the temporary holding facility is physically separate from any scientific breeder facility and the deer being temporarily held are not commingled with deer being held in a scientific breeder facility. Deer removed from a scientific breeder facility to a temporary holding facility shall not be returned to any scientific breeder facility. No deer shall be released from a temporary holding facility during an open season or within ten days of an open season unless the antlers immediately above the pedicel have been removed.

(3) An individual who does not possess a scientific breeder's permit may possess deer under a transfer permit if the individual is transporting deer within the state and the deer were legally purchased or obtained from a scientific breeder for purposes of release.

(e) Transfer permit.

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

(2) A transfer permit authorizes the transfer of deer to one and only one receiver.

(3) A transfer permit is activated only by:

(A) notifying the Law Enforcement Communications Center in Austin prior to the transport of any deer; or

(B) utilizing the department's web-based activation mechanism prior to the transport of any deer.

(4) A person in possession of live deer at any place other than within a permitted facility shall also possess on their person a department-issued transfer permit legibly indicating, at a minimum:

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

(B) the source and destination facilities, or, if applicable, the specific release location for each deer in possession;

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

(5) Not later than 48 hours following the completion of all activities under a transfer permit, the permit shall be:

(A) legibly completed and faxed to the Wildlife Division in Austin by the person designated on the permit as the party responsible for notification of the department; or

(B) completed and submitted using the department's web-based permit-completion mechanism.

(6) A scientific breeder may transport deer without a transfer permit from a permitted facility to a licensed veterinarian, provided:

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

(B) the deer are not removed from the means of transportation at any point between the permitted facility and the veterinary facility; and

(C) the deer do not leave this state.

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

§65.611. Prohibited Acts.

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

(b) A person commits an offense if that person places or holds deer in captivity at any place or on any property other than property for which a scientific breeder's permit, or a permit authorized under other provisions of this title or Parks and Wildlife Code, is issued, except that a permittee may transport and temporarily hold deer at another location for breeding, nursing, or veterinary purposes as provided in this subchapter.

(c) No live deer taken from the wild may be possessed under a scientific breeder's permit or held in a scientific breeder's facility.

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

(e) Possession of a scientific breeder's permit is not a defense to prosecution under any statute prohibiting abuse of animals.

(f) No scientific breeder shall hunt or kill, or allow the hunting or killing of deer held pursuant to this subchapter.

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

(h) No person may sell deer to another person unless either the purchaser or the seller possesses a [purchase] permit valid for that specific transaction.

(i) Except as provided in this subsection, no person may possess a deer acquired from an out-of-state source. This subsection does not apply to deer lawfully obtained prior to the effective date of this subsection.

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


Committee Agenda Item No. 5
Presenter: Joedy Gray

Regulations Committee
Restricted Species List and Definitions
Amendments to the Harmful or Potentially Harmful Exotic Fish,
Shellfish and Aquatic Plant Rules
January 24, 2007

I. Executive Summary: This item presents proposed amendments to the Harmful or Potentially Harmful Exotic Fish, Shellfish and Aquatic Plants Regulations. The proposed amendments were previously published in the July 21, 2006 issue of the Texas Register (31 TexReg 5762) and presented to the Commission for adoption on November 2, 2006. One impact of the rules would have been to prohibit the possession, transportation, and sale of all species of crayfish in the family Parastacidae. In the notice of proposed rulemaking, the department stated that there would be no fiscal impact to small and microbusinesses. At that time, however, the department was unaware that there were at least three persons in the state possibly engaged in the propagation and/or sale of live Australian redclaw crayfish, which are in the Parastacidae family. Therefore, the department has withdrawn the proposed amendments to §§57.111 and 57.113 and reproposed them with a new small and microbusiness impact statement. The proposed amendments:

II. Discussion: Parks and Wildlife Code, Chapter 66, Subchapter A, §66.007 authorizes the commission to regulate the importation, possession, sale and placing into water of this state of harmful or potentially harmful exotic fish, shellfish and aquatic plants. Additionally, the Agriculture Code, Chapter 134, Subchapter A, §134.020 gives the commission authority to regulate importation, possession, propagation and sale of harmful or potentially harmful exotic species by an aquaculturist.

Staff was authorized at the August 22, 2006 meeting of the Regulations Committee to publish the proposed amendments in the Texas Register for public comment. As noted in the Executive Summary, the proposed amendments to §§57.111 and 57.113 were withdrawn and republished, appearing in the December 22, 2006, issue of the Texas Register (31 TexReg 10240). A summary of public comment will be provided at the time of the meeting.

Staff recommends that the commission adopt the proposed motion:

"Texas Parks and Wildlife Commission adopts amendments to §§57.111 and 57.113, concerning Harmful or Potentially Harmful Exotic Fish, Shellfish and Aquatic Plants, with changes as necessary to the proposed text as published in the December 22, 2006, issue of the Texas Register (31 TexReg. 10240)."

Attachments - 1

  1. Exhibit A – Amendments to the Harmful or Potentially Harmful Exotic Fish, Shellfish and Aquatic Plants Regulations

Committee Agenda Item No. 5
Exhibit A

Harmful or Potentially Harmful
Exotic Fish, Shellfish, and Aquatic Plants
Proposal Preamble

1. Introduction.

The Texas Parks and Wildlife Department proposes amendments to §§57.111 and 57.113, concerning Harmful or Potentially Harmful Exotic Fish, Shellfish and Aquatic Plants. The proposed amendments were previously published in the July 21, 2006, issue of the Texas Register (31 TexReg 5762). As previously proposed, one impact of the rules would have been to prohibit the possession, transportation, and sale of all species of crayfish in the family Parastacidae. In the notice of proposed rulemaking, the department stated that there would be no fiscal impact to small and microbusinesses. At that time, however, the department was unaware that there were at least three persons in the state engaged in the propagation and sale of live Australian redclaw crayfish, which are in the Parastacidae family. The department therefore has withdrawn the proposed amendments to §§57.111 and 57.113 and reproposes them here with a new small and microbusiness impact statement.

The proposed amendment to §57.111, concerning Definitions, is necessary to standardize terminology and add several families, genera, and species to the definition of harmful or potentially harmful exotic fish, shellfish and aquatic plants in order to better protect native aquatic resources and to be consistent with United States Department of Agriculture and Texas Department of Agriculture regulations. The proposed amendment to §57.113, concerning Exceptions, would replace terminology as necessary to be consistent with the proposed amendments to §57.111, concerning Definitions, and clarify the conditions under which exotic fish or shellfish may be possessed without a permit. The current rule specifies that exotic fish and shellfish may be possessed without a permit if ‘the intestines have been removed.’ The amendment would replace that phrase with the phrase ‘gutted or beheaded.’ The intent of the current rule is to prevent live exotic fish and shellfish from being released into native ecosystems. By using the term ‘gutted’ the department hopes to provide a more precise description of the condition that must exist in order for the exception to apply and provides for beheading in addition to evisceration as an acceptable practice for ensuring non-viability. The proposed amendment also would allow the sale and transport of live Parastacidae to restaurants for on-premises consumption, and would allow the transport of live Parastacidae outside Texas.

The adverse effects of intentional and accidental introductions of exotic aquatic species into natural aquatic systems have been widely studied and documented around the world. The impact of a specific exotic species on a given native ecosystem is difficult to predict, but in general terms, the threat potential can be characterized by 1) evidence that the species is invasive elsewhere, 2) potential suitable range, 3) reproductive potential, 4) habitat quality, 5) the presence/absence of similar species, 6) the prey/predator relationship within the prospective habitat, and 7) food abundance. In addition, other factors, such as dispersal dynamics, can affect the efficacy of establishment. Once established, invasive exotic species are extremely difficult if not impossible to eliminate.

Based on empirical scientific evidence and the widely acknowledged threat that exotic species pose to native species and ecosystems, the department believes that the regulation of those fish, shellfish, and aquatic plants that pose demonstrable, potential, or unknown threats to native populations is an integral component of maintaining and protecting existing aquatic ecosystems. The species subject to restrictions by these rules have been selected because the department believes they are or could be threats to native ecosystems in Texas.

The proposed amendment to §57.111, concerning Definitions, would alter the definition of “fish farmer” by including the term “aquaculturist,” replace the term “fish farm” with the term “aquaculture facility” and replace the term “fish farm complex” with the term “aquaculture complex”. The amendment is necessary to clarify that the subchapter applies to persons who culture or possess harmful or potentially harmful exotic aquatic plants as well as animals. The amendment also defines the terms ‘gutted’ and ‘beheaded’ to ensure unambiguous meanings of those terms for the purposes of enforcing the provisions of the subchapter that set forth the conditions under which exotic fish may be possessed or transported.

The proposed amendment also updates the rules to include changes in scientific nomenclature and the reclassification of certain species, corrects errors, and makes nonsubstantive changes in the interest of clarification and consistency, including the redesignation of elements of the rule’s structure where necessary.

The proposed amendment to current §57.111(14)(E) would clarify that the provisions of the subchapter affect only the genus Hydrocynus and add the correct subfamily name. The proposed amendment is necessary to make the provisions of the subchapter taxonomically accurate.

The proposed amendment to current §57.111(14)(F) would correct a misspelling (Pirambebas) and exclude the genus Piaractus from the provisions of the subchapter. The proposed amendment is necessary to maintain accurate taxonomic references and to exempt a genus that is fairly popular in the pet trade and not deemed to be an ecological threat to native ecosystems.

The proposed amendment to current §57.111(14)(G) would add the family name and common name for tetras affected by the subchapter in order to provide clarity and maintain parallelism with the identification convention employed throughout the subchapter.

The proposed amendment to current §57.111(14)(H) would add the family name for affected dourados in order to provide clarity.

The proposed amendment to current §57.111(14)(J) would revise the taxonomic references in the paragraph to conform with those prescribed by the American Fisheries Society. The proposed amendment is necessary to ensure accurate taxonomic references.

The proposed amendment to current §57.111(14)(M) would add the common names of affected carps and minnows, and add two new genera (Labeo and Catlocarpio) to the list of prohibited carps and minnows, in addition to making changes to reflect reclassifications, corrections and clarifications. Carp in the genera Labeo and Catlocarpio are nearly identical to those in two already-prohibited genera, Cirrhinus and Catla, respectively. Generally, exotic carp have caused a wide array of ecological problems in Texas and elsewhere and it is reasonable to assume that the genera Labeo and Catlocarpio have the potential to cause similar problems. These genera were not restricted previously because there did not appear to be an importation threat. However, small specimens of Catlocarpio are beginning to become available in the international pet trade, including over the internet. Catlocarpio are large Asian carp that reach sizes of eight feet or more. Aquarium fish that rapidly grow very large are prime candidates for illegal releases in local waters. Therefore, it is prudent to restrict these genera now before major trade markets have developed as opposed to attempting to eliminate them after they have become established in food markets or the pet trade.

The proposed amendment to current §57.111(14)(S) would adjust taxonomic references as necessary to reflect reclassification within the Tilapia family by the scientific community.

The proposed amendment to current §57.111(14)(V) would adjust taxonomic references as necessary to reflect reclassification within the Percidae family by the scientific community.

The proposed amendment to current §57.111(14)(W) would add taxonomic language to address differences of opinion within the scientific community regarding the family name of Nile perch.

The proposed amendment to current §57.111(14)(X) would correct the common names of the species affected by the subparagraph. The proposed amendment is necessary to improve clarity.

The proposed amendment to current §57.111(14)(Z) would correct a misspelling (Ruffe). The proposed amendment is necessary to maintain accurate taxonomic references.

The proposed amendment to §57.111(14)(DD), would correct an error by moving Heteropneustidae to subparagraph (AA), because Heteropneustidae is the scientific name for the air sac catfishes family and should not be listed under the goby family. The proposed amendment also adds a single genus of the goby family to the definition of harmful or potentially harmful fish, shellfish and aquatic plants. Round gobies have already invaded the Great Lakes and have caused significant detrimental ecological impacts there by devouring native fishes and their eggs and by their aggressive habits of driving native species from their spawning, nursery and feeding areas.

The proposed amendment to current §57.111(14)(CC) would add the common name of the Anguilliidae family. The proposed amendment is necessary to improve clarity.

The proposed amendment to current §57.111(14)(EE) and (FF) would add two new families (Moronidae and Percichthyidae) to the definition of harmful or potentially harmful fish, shellfish and aquatic plants. The Asian and European Moronidae and the Percichthyidae are ecological counterparts of Texas native striped and white basses and would compete for the same ecological niches. The Moronidae have already become established in the Great Lakes, where they are known to eat the eggs of white bass and other native species and to hybridize with native bass. The Percichthyidae, or Chinese perches, also known as cold water groupers, are cold and salinity-tolerant fish with very large mouths that are very similar to bass and have the potential to be competitive to a detrimental extent with Texas native basses.

The proposed amendment to §57.111(15)(A) would expand the prohibition on harmful or potentially harmful crayfish from a single genus to all southern hemisphere species. Virtually all crayfish species can cause ecological problems when introduced outside their natural ranges. Crayfish are a central component of freshwater food webs and ecosystems, acting as the dominant consumers of benthic invertebrates, detritus, macrophytes, and algae and as important forage for fish. Thus, additions to or removals of crayfish species from a native ecosystem often lead to large ecosystem effects, including changes in fish populations and losses in biodiversity. North American crayfish species are particularly susceptible to invasions from non-indigenous species because they have limited natural ranges. The single greatest threat to crayfish biodiversity worldwide is from accidental or intentional introduction of non-indigenous crayfish. In Europe, native crayfish have suffered from competition with introduced crayfish, but the greater impact has been caused by a fungal plague carried by non-indigenous species. Consequently, it is prudent to restrict non-indigenous crayfish species now before they become components of the aquaculture or pet industries and emerge as a significant problem.

The proposed amendment to current §57.111(15)(C), (E) and (G) reflects reclassifications and makes clarifications. Under the current rules, a single genus of giant rams-horn snails and a single species of applesnails are prohibited. The proposed amendment would expand the prohibition to include the entire family, which now includes both of these groups as a result of reclassification. The expansion is necessary because many of these snails are significant crop and ecological pests, eating plants and carrying diseases and parasites. An exception has been made for spiketop applesnail, which is the primary snail sold for aquarium culture. Spiketop applesnail is not cold-tolerant, does not eat larger aquatic plants, and is unlikely to become established or problematic in Texas. The amendment also alters taxonomic references to reflect reclassification within the Penaeid shrimp family by the scientific community, which is necessary to maintain accurate taxonomic references.

The proposed amendment to current §57.111(16)(A), (C), (I), and (L) would revise scientific names, include alternate common names (duckweed, water spinach) to reflect reclassification of certain species by the scientific community (waterhyacinth), and would add eight species to the list of harmful or potentially harmful exotic aquatic plants in order to be consistent with United States Department of Agriculture and Texas Department of Agriculture regulations. The amendment is necessary to improve accuracy and clarity, and to ensure that the rules do not conflict with federal provisions.

The proposed amendment to current §57.111(17) and (29) would clarify the boundary description of the harmful or potentially harmful exotic species exclusion zone and explicitly state that shellfish and/or water from a quarantined facility may not come into contact with public water. The proposed amendment is necessary to more accurately identify the area of the state to which the exclusion provisions apply, and to explicitly state a prohibition so as to remove the possibility of ambiguity.

The proposed amendment to current §57.111(30) would add a definition for “shellfish disease specialist.” The amendment is necessary because the provisions of §57.114, concerning Health Certification of Exotic Shellfish, require that exotic shellfish be certified as disease free by a shellfish disease specialist. The proposed amendment establishes the criteria that a person must meet in order to be regarded by the department as qualified to certify the health status of exotic shellfish.

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 slight fiscal implications to state government as a result of enforcing or administering the rules. The department will realize revenue of $250 per person for any person who is required to obtain an exotic species permit. If all persons currently propagating or selling live Parastacidae choose to continue doing so, the department would realize a revenue increase of $1,250 per year. There will be no cost to the department because the required duties are already being carried out by existing personnel. There will be no fiscal implications for units of local government as a result of enforcing or administering the rules as proposed.

3. Public Benefit/Cost Note.

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 rules as proposed will be the protection of the state’s aquatic ecosystems from exotic species. The adverse effects of intentional and accidental introductions of exotic aquatic species into natural aquatic systems have been widely studied and documented around the world. The impact of a specific exotic species on a given native ecosystem is difficult to predict, but in general terms, the threat potential can be characterized by 1) evidence that the species is invasive elsewhere, 2) potential suitable range, 3) reproductive potential, 4) habitat quality, 5) the presence/absence of similar species, 6) the prey/predator relationship within the prospective habitat, and 7) food abundance. In addition, other factors, such as dispersal dynamics, can affect the efficacy of establishment. Once established, invasive exotic species are extremely difficult if not impossible to eliminate. Additionally, the rules will be clearer, more accurate, and more consistent, which will facilitate compliance and therefore enhance the department’s ability to protect the native aquatic natural resources of the state.

(B) The department has determined that there will be no adverse economic effect on small businesses, microbusinesses, and persons required to comply with the rules as proposed, unless the business or person is engaged in the propagation and sale of live crayfish of the family Parastacidae. Under current rule, Parastacidae may be propagated and sold live by anyone to anyone. Under the proposed rules, the propagation, possession, or sale of live Parastacidae would be unlawful without an exotic species permit issued by the department, except for live Parastacidae sold to restaurants for on-premises consumption or live Parastacidae shipped out of state. Under the proposed rule, no permit would be required for sale or possession of dead Parastacidae. Therefore, the potential adverse economic effect to small businesses, microbusinesses, and persons required to comply with the rules as proposed would be: 1) The cost of $250 per year for an exotic species permit, and 2) any business lost as a consequence of the prohibition of the intrastate sale of live Parastacidae for the pet trade.

In addition to the permit fee, persons required to comply with the rules would incur the costs associated with recordkeeping and reporting; however, the department estimates that a permitee would spend no more than eight hours per year completing the annual report. The permit fee and reporting requirements would apply equally to small businesses, micro-business, and larger businesses; however, the department believes that all persons and businesses affected by the rules are small or micro-businesses. Thus, there is no difference between cost of compliance on small and micro-business versus larger businesses. Therefore, the cost of compliance for a business with one employee would be $250 per employee per year in out-of-pocket expenses and eight hours of staff time per employee. For businesses with 20 employees, the cost of compliance would be $12.50 per employee per year and slightly over 0ne hour of staff time per employee per year.

In order to determine the cost of compliance in terms of potential loss of pet-trade business, the department contacted, by telephone, 56 businesses (in Amarillo, Austin, Brownsville, Corpus Christi, Dallas, El Paso, Fort Worth, Houston, San Antonio, and Weatherford) that the department determined might engage in the sale of aquatic pets. The businesses were asked if they currently sell, had ever sold, or intended to sell live Parastacidae. Two businesses stated that they very rarely obtained Australian redclaw crayfish. Four businesses stated that they could order Australian redclaw crayfish if requested to do so by a customer. The remaining 50 business indicated that they did not carry Australian redclaw crayfish. Each business was also asked if they were aware of anyone else in the state who might be engaged in the propagation or sale of live Parastacidae, and if so, to provide contact information.

Based on the responses from the telephone contacts, the department sent a questionnaire (by standard and certified U.S. mail) to each of the six businesses that indicated they have engaged or intended to engage in the sale of Australian redclaw crayfish, as well as the three persons known to propagate Australian redclaw crayfish in Texas. As a result, since both respondents indicated that they had no employees other than themselves, the cost of compliance per employee would be $170 per year.

The department received two completed questionnaires, both from persons engaged in the propagation of Australian redclaw crayfish. Neither respondent reported that their respective businesses employed staff beside themselves. One respondent reported that he invested approximately 100 hours of labor per year in the cultivation of Parastacidae, but had not sold any. The other respondent reported the investment of approximately 365 hours per year in the cultivation of Parastacidae, with sales of approximately $170 per year for the last three years.

Based on the data reported, the department has determined that most if not all businesses and persons affected by the proposed rules are small or microbusinesses; thus, there is no difference between the cost of compliance for small and micro-business versus larger businesses. Based on the same data, the department has also determined that the highest cost of compliance, assuming that all sales are for the intrastate pet trade, is approximately $170 per year.

(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 there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rules because Chapter 2007 does not apply to rules controlling non-indigenous or exotic aquatic resources.

(E) Regulatory Impact Analysis. Although Government Code § 2001.0225, Regulatory Analysis of Major Environmental Rules, does not apply to this proposed rule, TPWD nonetheless provides the regulatory analysis, as follows. The benefit TPWD anticipates as a result of implementing the rule is protection of native aquatic ecosystems from the potential adverse effects of introduced species. The adverse effects of intentional and accidental introductions of exotic aquatic species into natural aquatic systems have been widely studied and documented around the world. Once established, invasive exotic species are extremely difficult if not impossible to eliminate.

The proposed new rules will minimize cost and avoid unnecessary duplication by clarifying many scientific and popular names, therefore decreasing confusion and lessening the cost of compliance.

Persons required to comply with the rule will incur the costs associated with 1) The cost of $250 per year for an exotic species permit, 2) any business lost as a consequence of the prohibition of the intrastate sale of live Parastacidae for the pet trade, and 3) approximately eight hours per year for reporting and recordkeeping if a permit is required.

An alternative method of achieving the purpose of the rule that was considered was banning the sale of both live and dead Parastacidae to both in-state and out-of-state buyers. It was determined that, given present knowledge regarding this family, this approach would unnecessarily affect the business of raising Parastacidae for human consumption or sale out-of -state, accordingly, the department has proposed a less-restrictive rule.

Data and methodology used include the following studies, as well as surveys of the industry.

Cook, B., S. Choy, and J. Davie. undated. Potential ecological impacts of translocating redclaw crayfish, Cherax quadricarinatus. Online abstracts. www.vims.edu/tcs/ICC5_abstracts.htm.

De Moor, I. 2002. Potential impacts of alien freshwater crayfish in South Africa. African Journal of Aquatic Science 27:125-139.

Hanson, J.M., P.A. Chambers, and E.E. Prepas. 1990. Selective foraging by the crayfish Orconectes virilis and its impact on macroinvertebrates. Freshwater Biology 24:69-80.

Hepworth, D.K., and D.J. Duffield. 1987. Interactions between an exotic crayfish and stocked rainbow trout in Newcastle Reservoir, Utah. North American Journal of Fisheries Management 7:554-561.

Kats, L.B. and R.P. Ferrer 2003. Alien predators and amphibian declines: review of two decades of science and the transition to conservation. Diversity and Distributions 9:99-110.

Hobbs H. H. I.; Jass J. P.; and Huner J. V. 1989 A review of global

crayfish introductions with particular emphasis on two North American species (Decapoda, Cambaridae). Crustaceana 56:303-309.

Huner J. V. 1977. Introductions of the Louisiana red swamp crayfish,

Procambarus clarkii (Girard); an update. Freshwater Crayfish 3:193-202.

Lodge, D.M., M.W. Kershner, J.E. Aloi, and A.P. Covich. 1994. Effects of an omnivorous crayfish (Orconectes rusticus) on freshwater littoral food web. Ecology 75:1265-1281.

Lodge, D.M., T.K. Kratz, and G.M. Capelli. 1986. Long-term dynamics of three crayfish species in Trout Lake, Wisconsin. Can. J. Fish. Aquat. Sci. 43:993-998.

Lodge, D.M., and J.G. Lorman. 1987. Reductions in submersed macrophyte biomass and species richness by the crayfish Orconectes rusticus. Can. J. Fish. Aquat. Sci. 44:591-597.

Lodge, D.M., C.A. Taylor, D.M. Holdich, and J. Skurdal. 2000a. Nonindigenous crayfishes threaten North American freshwater biodiversity: lessons from Europe. Fisheries Vol. 25, No. 8:7-20.

Lodge, D.M., C.A. Taylor, D.M. Holdich, and J. Skurdal. 2000b. Reducing impacts of exotic crayfish introductions: new policies needed. Fisheries Vol. 25, No. 8:21-23.

Lorman J.G. and J.J. Magnuson. 1978. The role of crayfishes in aquatic ecosystems. Fisheries 3:6-8.

Masser, M.P. and D.B. Rouse. 1997. Red claw crayfish. Southern Regional Aquaculture Center. SRAC Publication No. 244.

Momot W. T. 1995. Redefining the role of crayfish in aquatic ecosystems.

Reviews in Fisheries Science 3:33-63.

Olsen, T.M., D.M. Lodge, G.M. Capelli, and R.J. Houlihan. 1991. Mechanisms of impact on an introduced crayfish (Orconectes rusticus) on littoral congeners, snails, and macrophytes. Can. J. Fish. Aquat. Sci. 48:1853-1861.

Piper, L. 2000. Potential for expansion of freshwater crayfish industry in Australia. Rural Industries Research and Development Corporation. RIRDC Publication No. 00/142.

Short, W.J. 2000. Crustaceans 1 freshwater crayfish. Leaflet 0057, Queensland Museum, South Brisbane Australia.

Williams, E.H. Jr., L. Bunkley-Williams, C.G. Lilyestrom, and E.A.R. Ortiz-Corps. 2001. A review of recent introductions of aquatic invertebrates in Puerto Rico and implications for the management of nonindigenous species. Caribbean Journal of Science, Vol. 37, No. 3-4, 246-251.

TPWD is not aware of a performance-oriented, voluntary, or market-based approach that would substitute for the proposed rule. The opportunity for public comments set forth below applies as well to the draft impact analysis and all comments on the draft impact analysis will be addressed in the publication of the final regulatory analysis.

(F) A consistency determination is not required under 31 TAC Chapter 505 because the proposed amendments do not involve any of the four threshold actions that would subject the proposed rules to a consistency review under the Coastal Management Program.

4. Request for Public Comment.

Comments on the proposed rules may be submitted to Joedy Gray, Texas Parks and Wildlife Department 4200 Smith School Road, Austin, Texas, 78744; (512) 389-8037 (e-mail: joedy.gray@tpwd.state.tx.us).

5. Statutory Authority.

The amendments are proposed under the authority of Parks and Wildlife Code, §66.007, which authorizes the commission to regulate the importation, possession, sale, and placing into the water of this state harmful or potentially harmful exotic fish, shellfish and aquatic plants, and under Agriculture Code, §134.020, which authorizes the commission to regulate the importation, propagation, and sale of harmful or potentially harmful exotic species by an aquaculturist.

The proposed amendments affect Parks and Wildlife Code, Chapter 66 and Agriculture Code, Chapter 134.

§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) Aquaculture 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.

(5) Beheaded—The complete detachment of the head (that portion of the fish from the gills to the nose) from the body.

(6)[(2)] Certified Inspector—An employee of the Texas Parks and Wildlife Department [or the Texas A&M Sea Grant College Program] who has satisfactorily completed a department approved course in clinical analysis of shellfish.

(7)[(3)] Cultured species—Aquatic plants or wildlife resources raised under conditions where at least a portion of their life cycle is controlled by an aquaculturist.

(8)[(4)] Clinical Analysis Checklist—A TPWD[an inspection] form [provided by the department] specifying sampling protocols and listing certain characteristics which may constitute manifestations of disease.

(9)[(5)] Department—The Texas Parks and Wildlife Department or a designated employee of the department.

(10)[(6)] Director—The executive director of the Texas Parks and Wildlife Department.

(11)[(7)] Disease—Contagious pathogens or injurious parasites which may be a threat to the health of natural populations of aquatic organisms.

(12)[(8)] 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.

(13)[(9)] Exotic species—A nonindigenous plant or wildlife resource not normally found in public water of this state.

[(10) Fish farm—The property including all drainage ditches and private facilities from which cultured species are produced, held, propagated, transported, or sold.]

[(11) Fish farm complex—A group of two or more separately owned fish farms located at a common site and sharing privately owned water diversion or drainage structures.]

[(12) Fish farmer—Any person holding a valid license to engage in aquaculture or fish farming under Agriculture Code, Chapter 134.]

(14)[(13)] Grass carp—The species Ctenopharyngodon idella.

(15) Gutted—The complete removal of all internal organs and entrails.

(16)[(14)] 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: Osteoglossidae—Arapaima gigas;

(D) South American Pike Characoids Family: Characidae—all species of genus Acestrorhyncus;

(E) African Tiger Fishes Family, Subfamily Alestiidae: Hydrocyninae—all species of genus Hydrocynus;

(F) Piranhas and Pirambebas: Family Serrasalmideae,[Priambebus] Subfamily: Serrasalminae—all species except pacus of the genus Piaractus;

(G) Payara and other wolf or vampire tetras: Family Characidae,[Rhaphiodontid Characoids] Subfamily: Rhaphiodontinae—all species of genera Hydrolycus and Rhaphiodon, including Cynodon[(synonymous with Cynodon)];

(H) Dourados: Family Characidae, Subfamily: Bryconinae—all species of genus Salminus;

(I) South American Tiger Fishes Family: Erythrinidae—all species;

(J) South American Pike Characoids Family: Ctenolucidae—all species of genera Ctenolucius and Boulengerella, including Luciocharax [(synonymous with Boulengerella)] and Hydrocinus[)];

(K) African Pike Characoids Families: Hepsetidae and Ichthyboridae—all species;

(L) Electric Eels Family: Electrophoridae—Electrophorus electricus;

(M) Carps and Minnows Family: Cyprinidae—all species and hybrids of species of genera: Aspius, Pseudoaspius, Aspiolucius (Asps); Abramis, Blicca, Megalobrama, Parabramis (Old World Breams); Hypophthalmichthys or Aristichthys (Bighead Carp); Mylopharyngodon (Black Carp); Ctenopharyngodon (Grass Carp); Cirrhinus (Mud Carp); Thynnichthys (Sandkhol Carp); Hypophthalmichthys (Silver Carp); Catla (Catla); Leuciscus (Old World Chubs, Ide, Orfe, Daces); Tor, including the species Barbus hexiglonolepsis (Giant Barbs and Mahseers); Rutilus (Roaches); Scardinius (Rudds); Elopichthys (Yellowcheek); Catlocarpio (Giant Siamese Carp); all species of the genus Labeo (Labeos) except Labeo chrysophekadion (Black SharkMinnow)[Abramis, Aristichthys, Aspius, Aspiolucius, Blicca, Catla, Cirrhina, Ctenopharyngodon, Elopichthys, Hypophthalmichthys, Leuciscus, Megalobrama, Mylopharyngodon, Parabramis, Pseudaspius, Rutilus, Scardinius, Thynnichthys, Tor, and the species Barbus tor (synonymous with Barbus hexoagoniolepis)];

(N) Walking Catfishes Family: Clariidae—all species;

(O) Electric Catfishes Family: Malapteruridae—all species;

(P) South American Parasitic Candiru Catfishes Subfamilies: Stegophilinae and Vandelliinae—all species;

(Q) Pike Killifish Family: Poeciliidae—Belonesox belizanus;

(R) Marine Stonefishes Family: Synanceiidae—all species;

(S) Tilapia Family: Cichlidae—all species of genera[genus] Tilapia, Oreochromis and Saratherodon [(including Sarotherodon and Oreochromis)];

(T) Asian Pikeheads Family: Luciocephalidae—all species;

(U) Snakeheads Family: Channidae—all species;

(V) Old World Pike-Perches[Walleyes] Family: Percidae—all species of the genus Sander except Sander vitreum [Stizostedion except Stizostedion vitreum] and S. canadense;

(W) Nile Perch Family: Centropomidae (also called Latidae)—all species of genera Lates and Luciolates;

(X) Seatrouts and Corvinas[Drums] Family: Sciaenidae—all species of genus Cynoscion except Cynoscion nebulosus, C. nothus, and C. arenarius;

(Y) Whale Catfishes Family: Cetopsidae—all species;

(Z) Ruffe[Ruff] Family: Percidae—all species of genus Gymnocephalus;

(AA) Air sac Catfishes Family: Heteropneustidae-all species;

(BB) Swamp Eels, Rice Eels or One-Gilled Eel Family: Synbranchidae—all species;

(CC) Freshwater Eels family: Anguilliidae—all species except Anguilla rostrata;

(DD) Round Gobies Family: Gobiidae—all species of genus Neogobius, including N. melanostoma[Heteropneustidae—All species of genus Heteropneustes].

(EE) Temperate Basses Family: Moronidae-all species except for Morone saxatilis, M. chrysops and M. mississippiensis and hybrids between these three species;

(FF) Temperate Perches Family: Percichthyidae-all species, including species of the genus Siniperca (Chinese perches).

(17)[(15)] Harmful or potentially harmful exotic shellfish—

(A) Crayfishes Family: Parastacidae—all species [of the genus Astacopsis];

(B) Mittencrabs Family: Grapsidae—all species of genus Eriocheir;

[(C) Giant Ram's-horn Snails Family: Piliidae (synonymous with Ampullariidae)—all species of genus Marisa;]

(C)[(D)] Zebra Mussels Family: Dreissenidae—all species of genus Dreissena;

(D)[(E)] Penaeid Shrimp Family: Penaeidae—all species of genera[genus] Penaeus, Litopenaeus, Farfantepenaeus, Fenneropenaeus, Marsupenaeus, and Melicertus (all previously considered Penaeus) except L. setiferus, Far. [F.] aztecus and Far.[F.] duorarum.

(E)[(F)] Oyster Family: Ostreidae—all species except Crassostrea virginica and Ostrea equestris.

(F)[(G)] Applesnails and Giant Rams-Horn Snail: all genera and species of the Family Ampullariidae (previously called Pilidae), including Pomacea and Marisa, except spiketop applesnail (Pomacea bridgesii)[Applesnails Family: Ampullariidae—Channeled Applesnail (Pomacea canaliculata)].

(18)[(16)] Harmful or potentially harmful exotic plants—

(A) Giant or Dotted Duckweed Family: Lemnaceae—Landolita punctata [Spirodela oligorhiza];

(B) Salvinia Family: Salviniaceae—all species of genus Salvinia;

(C) Waterhyacinth Family: Pontederiaceae—Eichhornia crassipes (floating waterhyacinth) and E. azurea (rooted waterhyacinth);

(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) Rooted Waterhyacinth Family: Pontederiaceae—Eichhornia azurea;]

(I)[(J)] Paperbark Family: Myrtaceae—Melaleuca quinquenervia;

(J)[(K)] Torpedograss Family: Gramineae—Panicum repens;

(K)[(L)] Water spinach (also called ong choy, rau mong and kangkong) Family: Convolvulaceae—Ipomoea aquatica[aquatic].

(L) Ambulia—Limnophila sessiflora;

(M) Narrowleaf False Pickerelweed—Monochoria hastata;

(N) Heartshaped False Pickerelweed—Monochoria vaginalis;

(O) Duck-lettuce—Ottelia alismoides;

(P) Wetland Nightshade—Solanum tampicense;

(Q) Exotic Bur-reed—Sparganium erectum;

(R) Brazilian Peppertree—Schinus terebinthifolius;

(S) Purple Loosestrife—Lythrum salicaria.

(19)[(17)] Harmful or potentially harmful exotic species exclusion zone—That part of the state that is both[area] south of SH 21 and east of I-35, but[, from its intersection with the Texas/Louisiana border, approximately five miles due east of Milam, Texas,] not including [that area of] Brazos County [south of SH 21, to San Marcos; thence south of IH 35 to Laredo].

(20)[(18)] Immediately—Without delay; with no intervening span of time.

(21)[(19)] Manifestations of disease—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.

(22)[(20)] Nauplius or nauplii—A larval crustacean having no trunk segmentation and only three pairs of appendages.

(23)[(21)] Operator—The person responsible for the overall operation of a wastewater treatment facility.

(24)[(22)] 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.

(25)[(23)] Post-larvae[Postlarva]—A juvenile crustacean having acquired a full complement of functional appendages.

(26)[(24)] 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.

(27)[(25)] Private facility effluent—Any and all water which has been used in aquaculture activities.

(28)[(26)] Private pond—A pond, tank, lake, or other structure capable of holding cultured species in confinement wholly within or on private land.

(29)[(27)] Public aquarium—An American Association of Zoological Parks and Aquariums accredited facility for the care and exhibition of aquatic plants and animals.

(30)[(28)] Public waters—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.

(31)[(29)] Quarantine condition—Confinement of exotic shellfish such that neither the shellfish nor the water in which they are or were maintained comes into contact with water in the state and with other fish and/or[or] shellfish.

(32) Shellfish disease specialist-A person with a degree in veterinary medicine or a Ph.D. who specializes in disease of shellfish.

(33)[(30)] Triploid grass or black carp—A grass carp (Ctenopharyngodon idella) or black carp (Mylophryngodon piceus) that [which] has been certified by the United States Fish and Wildlife Service as having 72 chromosomes and as being functionally sterile.

(34)[(31)] Waste—Waste shall have the same meaning as in Chapter 26, §26.001(6) of the Texas Water Code.

(35)[(32)] Water in the state—Water in the state shall have the same meaning as in Chapter 26, §26.001(5) of the Texas Water Code.

(36)[(33)] Wastewater treatment facility—All contiguous land and fixtures, structures or appurtenances used for treating wastewater pursuant to a valid permit issued by the Texas Commission on Environmental Quality.

§57.113. Exceptions.

(a) A person who holds a valid Exotic Species Permit issued by the department may possess, propagate, sell and transport to the permittee's private facilities exotic harmful or potentially harmful fish, shellfish and aquatic plants only as authorized in the permit provided the harmful or potentially harmful exotic species are to be used exclusively:

(1) as experimental organisms in a department approved research program; or

(2) for exhibit in a public aquarium approved for display of harmful or potentially harmful exotic fish, shellfish and aquatic plants.

(b) A person may possess exotic harmful or potentially harmful fish or shellfish, exclusive of grass carp, without a permit, if the [intestines of the] fish or shellfish have been gutted[removed], or in the case of oysters, if the oysters have been shucked or otherwise removed from their shells.

(c) A person may possess grass carp harvested from public waters that have not been permitted for triploid grass carp, without a permit, if the grass carp[intestines] have been gutted[removed].

(d) An aquaculturist[A fish farmer] who holds a valid exotic species permit issued by the department may possess, propagate, transport or sell water spinach,triploid grass carp [(Ctenopharyngodon idella)], silver carp [(Hypophthalmicthys molitrix)], triploid black carp [(Mylophryngogon piceus, also], commonly known as snail carp[)], bighead carp [(Aristichthys/Hypophthalmicthys nobilis)], blue tilapia (Oreochromis aureusa [Tilapia aurea]), Mozambique tilapia (O. mossambica[Tilapia mossambica]), Nile tilapia (O. nilotocusa[Tilapia nilotica]), [water spinach (Ipomoea aquatica),] or hybrids between the three tilapia species, unless otherwise provided by conditions of the permit or these rules.

(e) An aquaculturist[A fish farmer] who holds a valid exotic species permit issued by the department may possess, propagate, transport, or sell Pacific white shrimp (Litopenaeus vannamei) provided the exotic shellfish meet disease free certification requirements listed in §57.114 of this title (relating to Health Certification of Exotic Shellfish) and as provided by conditions of the permit and these rules.

(f) An operator of a wastewater treatment facility in possession of a valid exotic species permit issued by the department may possess and transport permitted exotic species to their facility only for the purpose of wastewater treatment.

(g) A person may possess Mozambique tilapia in a private pond or private facility subject to compliance with §57.116(d) of this title (relating to Exotic Species Transport Invoice).

(h) The holder of a valid triploid grass carp permit issued by the department may possess triploid grass carp as provided by conditions of the permit and these rules.

(i) A licensed retail or wholesale fish dealer is not required to have an exotic species permit to purchase or possess:

(1) live individuals of triploid grass carp, silver carp, triploid black carp, bighead carp, blue tilapia, Mozambique tilapia, Nile tilapia[species] or hybrids of those species [listed in subsection (d) of this section] held in the place of business, unless the retail or wholesale fish dealer propagates one or more of these species. However, such a dealer may sell or deliver these species to another person only if the fish have been gutted or beheaded[the intestines or head of the fish are removed]; or

(2) Live Pacific white shrimp (Litopenaeus vannamei) held in the place of business if the place of business is not located within the exclusion zone described in §57.111 of this title (relating to Definitions)[Harmful or Potentially Harmful Exotic Species Exclusion Zone]. However, such a dealer may only sell or deliver this species to another person if the shrimp are dead and packaged on ice or frozen.

(j) The department is authorized to stock triploid grass carp into public waters in situations where the department has determined that there is a legitimate need, and when stocking will not affect threatened or endangered species, coastal wetlands, or specific management objectives for other important species.

(k) An aquaculturist[A fish farmer] who holds a valid exotic species permit issued by the department may possess, propagate, transport and sell Pacific blue shrimp (Litopenaeus stylirostris) provided the exotic shellfish are cultured under quarantine conditions in private facilities located outside the harmful or potentially harmful exotic species exclusion zone, and meet disease free certification requirements listed in §57.114 of this title (relating to Health Certification of Exotic Shellfish) and as provided by conditions of the permit and these rules.

(l) A person operating[An operator of] a mechanical plant harvester in accordance with the provisions[possession] of a valid exotic species permit issued by the department may remove and dispose of prohibited plant species from public or private waters only by means authorized in the permit.

(m) Any person may possess water[Water] spinach [(Ipomoea aquatica)] for personal consumption.

(n) An aquaculturist who holds a valid exotic species permit issued by the department may possess, propagate, transport, and sell Parastacidae. Live Parastacidae may be possessed without a permit only:

(1) at a restaurant or other food service establishment for purposes of on-premises consumption as food; or

(2) while being transported to an out-of-state destination.

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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