Presenter: Larry McKinney

Commission Agenda Item No. 8
Action
Offshore Aquaculture Permit Rules
November 2006

I. Executive Summary: This action repeals the Introduction of Fish, Shellfish, and Aquatic Plants Proclamation and replaces it with new language that, in addition to maintaining the existing introduction permit programs, establishes an offshore aquaculture permit program. Also, the Miscellaneous Fisheries and Wildlife License and Permit section of Chapter 53 is amended to set a fee for that permit. The proposed new rules would allow offshore aquaculture activities and prescribe the permit application procedures and the conditions required to operate an offshore aquaculture facility.

II. Discussion: Parks and Wildlife Code (PWC), §11.027(b) concerning Establishment of Fees allows the Commission to establish and provide for the collection of a fee to cover costs associated with the review of an application for a permit required by this code. PWC §12.015, requires the department to regulate the introduction and stocking of fish, shellfish, and aquatic plants into the public water of the state. Under the provisions of PWC §66.015, 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. Additionally, Agriculture Code, Chapter 134, requires the department to adopt rules to carry out its duties related to aquaculture.

The department proposes to repeal sections §§57.251-57.257 and replace them with new sections §§57.251-57.260, concerning Introduction of Fish, Shellfish, and Aquatic Plants, that would create an offshore aquaculture permit for Texas outside waters. The proposed new rules would allow offshore aquaculture activities; prescribe the permit application procedures; establish conditions required to operate an offshore aquaculture facility; implement the department's responsibilities under Agriculture Code, Chapter 134; and provide protection for marine resources in the wild, including endangered species. The fee for a permit or permit renewal would be $1,500 (31 TAC §53.15).

III. Recommendation: Staff recommends that the Regulations Committee send the Commission the following proposed motion:

"Texas Parks and Wildlife Commission repeals §§57.251-57.257 and adopts new sections §§57.251-57.260 related to offshore aquaculture and the Introduction of Fish, Shellfish, and Aquatic Plants, as published in the September 29, 2006 Texas Register (31 TexReg. 8194), and amends §53.15 concerning Miscellaneous Fisheries and Wildlife License fees and as published in the September 29, 2006 Texas Register (31 TexReg. 8191)."

Attachments – 2

  1. Exhibit A – New Rules to Introduction of Fish, Shellfish and Aquatic Plants Regulations
  2. Exhibit B – Amendment to Miscellaneous Fisheries and Wildlife License and Permit Regulations

Commission Agenda Item No. 8
Exhibit A

Offshore Aquaculture Rules
Proposal Preamble

1. Introduction.

The Texas Parks and Wildlife Department (the department) proposes the repeal §§57.251-57.257 and new §§57.251-57.259, concerning Introduction of Fish, Shellfish, and Aquatic Plants.

Parks and Wildlife Code, §12.015, requires the department to regulate the introduction and stocking of fish, shellfish, and aquatic plants into the public water of the state. Under Parks and Wildlife Code, §66.015, the department is required to adopt rules governing the issuance of permits for the introduction of fish, shellfish, and aquatic plants into public waters. Additionally, Agriculture Code, Chapter 134, requires the department to adopt rules to carry out its duties under that chapter.

The proposed new sections replace existing rules that treated the introduction of aquatic organisms as permanent releases. The proposed new rules preserve the current function while adding additional regulatory provisions to govern offshore aquaculture.

The permanent introduction of fish, shellfish, and aquatic plants to the public waters is generally authorized for extremely limited reasons, and only when the department has determined that the introduction will not conflict with management policies or objectives and does not have the potential to result in negative biological impacts to existing ecosystems. For instance, an introduction permit might be issued to a university researcher returning stock to the wild following research activities. Because the introduction permit is so rarely used, there is no fee.

The proposed new sections would create an offshore aquaculture permit. Although offshore aquaculture is being practiced elsewhere in the world, it is in its infancy in the United States in general and the Gulf of Mexico specifically. In 2005 and 2006, federal legislation was introduced that directed the National Oceanic and Atmospheric Administration (NOAA) to establish procedures for the development of an offshore aquaculture industry in the Exclusive Economic Zone (EEZ), which is the federal jurisdiction extending from the seaward boundary of state waters (nine miles) out to 200 miles. The proposed legislation prompted several inquiries concerning the development of offshore aquaculture in Texas state waters.

The proposed new rules would allow offshore aquaculture activities, prescribe the permit procedures and conditions required to operate an offshore aquaculture facility, implement the department’s responsibilities under Agriculture Code, Chapter 134, and provide protection for marine resources in the wild, including endangered species.

The regulation of offshore aquaculture involves both state and federal jurisdictions. With respect to state agencies, the Texas Department of Agriculture (TDA) is the primary agency responsible for regulating aquaculture, the Texas Commission on Environmental Quality (TCEQ) has primary responsibility for establishing and enforcing water quality standards, the Texas General Land Office (GLO) is responsible for managing state-owned submerged lands, the Texas Animal Health Commission (TAHC) is responsible for management of animal disease necessary to protect agriculture, and the Texas Department of State Health Services (TDSHS) is the primary agency for protecting human health and safety, including seafood safety.

The United States Corps of Engineers (COE) and the United States Coast Guard (USCG) are responsible for establishing maritime navigation standards and the identification, marking, and mitigation of navigational hazards.

The department’s statutory responsibility is to protect the health and viability of native populations of fish, shellfish, and aquatic life in state waters, including endangered species. In general, the proposed new rules prescribe the conditions under which marine species may be introduced into an offshore aquaculture facility without damaging surrounding water and marine resources. It is the intent of this proposal that individuals applying to the various agencies for their necessary permissions be able to do so simultaneously so that the many needed reviews, inspections and other activities can be accomplished in the minimal amount of time. However, the proposal also intends that all of these permissions be provided before the permit for is approved by TPWD.

Proposed new §57.251, concerning Definitions, would establish words and terms necessary to carry out the provisions of the subchapter and allow for efficient enforcement and administration. The definition of ‘aquaculture’ is necessary to broadly describe one activity regulated by the subchapter. The definition of ‘aquatic plant’ is necessary to delineate the types of vegetative life the cultivation of or introduction into public waters of which is subject to regulation under the subchapter. The definition of ‘disease condition’ is necessary to create an unambiguous criterion for departmental actions to protect aquatic animal life in public waters. The definition of ‘enclosure’ is necessary to create a term for the specific infrastructure within which aquaculture may take place and to which provisions of the subchapter apply. The definition of ‘fishing’ is necessary to clearly distinguish the recreational pursuit, take, and possession of aquatic life from similar activities undertaken for commercial purposes within an aquaculture facility. The definition of ‘native species’ is necessary because the proposed new rules do not allow for the introduction or cultivation of exotic species; therefore, the rule must define native species in order to establish the species of aquatic life for which a permit may be issued. The definition of ‘offshore aquaculture facility’ is necessary to acknowledge that in addition to the enclosures where stock is kept there may be ancillary equipment and structures used in the aquacultural process, and to include such infrastructure in the applicability of the subchapter. The definition of ‘outside waters’ is necessary to identify the broad geographical area in which offshore aquaculture operations are lawful. The definition of ‘shellfish’ is necessary to create a description of a class of organisms the cultivation of which is subject to regulation under the subchapter. The definition of ‘stock’ is necessary to create a term that functions to differentiate native species of fish that are possessed under a permit from native species that are the property of the people of the state. The definition of ‘waste’ is necessary to create a term for the purposes of regulating the production of chemical compounds that constitute the biological effluvia produced within an offshore aquaculture facility.

Proposed new §57.252, concerning General Provisions, would restrict permit issuance to individuals, restrict offshore aquaculture to specific geographic areas and genetically indigenous stock; establish the period of validity for permits issued under the subchapter; and delineate the conditions under which the department may order the removal of stock from an offshore aquaculture facility. The proposed new rule would restrict the issuance of permits to named individuals only. The department has determined that the most efficient method of administering, monitoring, and enforcing the subchapter is to link one person to one permit for the life of the permit. The proposed new rule would limit the operational area for permitted activities to a specific Outer Continental Shelf (OCS) Block. The provision is necessary for effective biological and compliance monitoring and to delimit the geographical boundaries of permitted operations. The department does not intend for an offshore aquaculture permit to authorize the operation of an unlimited number of enclosures. The intent of limiting permitted activities to an OCS block is to provide enough space for viable operation of an offshore aquaculture facility while at the same time limiting the dispersion of permitted activities in order to provide for efficient monitoring efforts. The department has determined that it is necessary to restrict aquacultural cultivation in offshore waters to fish, shellfish, and aquatic plants that are genetically descended from species native to the Gulf of Mexico. The marine life in the Gulf of Mexico has evolved over many thousands of years in response to the unique environmental characteristics. The introduction of individuals from the same species but from another part of the world is, in effect, the introduction of an exotic genotype that may have the potential to interact with native species in unpredictable ways, affecting life-cycle factors such as hardiness, reproductive potential, food competition, and biodiversity. Therefore, the department has chosen to use a precautionary approach to management of offshore aquaculture facilities. By restricting aquaculture activities to native organisms, the potential for unforeseen genetic consequences is reduced and probably eliminated.

The proposed new section also would establish the period of validity for both the one-time introduction and offshore aquaculture permits issued under the subchapter. Permits for one-time introductions would be valid for 60 days or until the introduction is completed, whichever comes first. Introduction permits authorize a one-time instance of release, and the 60-day period is believed to provide sufficient time for a permitee to conduct the activities authorized under a permit. The offshore aquaculture permit would be valid for a period of up to one year, depending on the date of issuance. Because offshore aquaculture is a new technology and the variety of potential impacts is unknown, the department wishes to authorize aquaculture activities on a year-to-year basis in order to better monitor and analyze its effects.

The proposed new section also would authorize the department to inspect enclosures, infrastructure, and vessels used to engage in offshore aquaculture. The proposed provision is necessary to ensure compliance with applicable statutes, regulations, and permit provisions.

The proposed new section also would authorize the department to order the removal of stock from an offshore aquaculture facility upon determining the existence of disease conditions or upon certain enforcement actions by a state or federal agency that result in revocation or suspension of a permit, approval, or clearance. Offshore aquaculture inherently implicates an array of regulatory arenas such as environmental quality and navigation. As part of the application process set forth in proposed new §57.253, concerning Permit Application, the department would require proof that the applicant possesses all necessary approvals, clearances, and permits required by other state and federal agencies with regulatory jurisdiction over an aspect of the applicant’s prospective operations. Having required such proof as a condition of permit issuance, it follows that revocation or suspension by a regulatory agency of a permit, approval, or clearance would mean the permitee no longer satisfies the department’s requirements for permit issuance. The department believes that in some cases it might be necessary to order the removal of stock and the cessation of operations in order to protect native populations.

The proposed new section would also prohibit the sale or transfer of an offshore aquaculture permit. The provision is necessary to avoid confusion resulting from chains of possession. The department has determined that the most efficient method of administering, monitoring, and enforcing the subchapter is to link one person to one permit for the life of the permit.

Proposed new §57.253, concerning Permit Application, would set forth the requirements for and content of an application for a permit to be issued under the subchapter. Introduction permits authorize a one-time instance of release, and the 30-day period is in the department’s view the minimum time needed for the department to evaluate a proposal. For the offshore aquaculture permit a somewhat longer time period is necessary, since aquaculture is a much more involved and complex process than a simple introduction. With respect to the information required on an application for an offshore aquaculture permit, the department has determined that the following types of information should be required: evidence of compliance with other laws and rules; particulars of facility design; timelines for proposed activities; contingency plans; and evidence that all stock be native Gulf of Mexico genotypes. The department believes it would be inappropriate to issue an offshore aquaculture permit to any person not in compliance with all other applicable laws. A discussion of the rationale for this occurs earlier in this preamble.

The proposed new section also would require an application to include a clear and concise facility design and operating plan, including plans and schematics, sufficient to prevent the escape of stock or the entry into the facility of wild aquatic animal resources and to protect wildlife resources from disease transmission, waste discharge, and injurious interaction with enclosures and infrastructure. These provisions are necessary to ensure that practical measures have been taken to ensure that wildlife resources outside the proposed facility are protected from negative effects resulting from flaws in design and planning. The three areas of greatest concern are interaction between wild and cultivated populations, water quality impacts, and physical contact by wild organisms with enclosures and infrastructure. The department believes that it is reasonable to require design and planning sufficient to mitigate preventable conditions that could lead to unwanted developments with respect to wildlife resources, and to contemplate contingency actions for implementation in the event that circumstances beyond the control of the permitee create conditions for heightened threats to wildlife resources.

The proposed new section also would require an application to include a timeline for proposed activities, which is necessary for the department to monitor and evaluate offshore aquaculture activities and to ensure that unauthorized releases or augmentations do not occur. For instance, if a permitee’s application indicates that one thousand fingerlings are to be introduced to an enclosure on a certain date, to be harvested three months later, the department would be able to determine at any point in time whether all activities had taken place as authorized.

The proposed new section would also require an application to include a plan for the removal of all stock from a facility. As previously discussed, the nature of offshore aquaculture creates the potential for the existence of circumstances that could require the removal of stock, for instance, the discovery in an enclosure of a pathogen that threatened wildlife resources. The department believes it is sensible and prudent to require a contingency plan for such an event.

The proposed new section also would require an application to include a statement that the ancestry of all stock will be exclusively from Gulf of Mexico genotypes. The rationale for this requirement has been discussed earlier in this preamble.

The proposed new section also would require that a facility inspection be performed by the department as a prerequisite for permit issuance. The new provision is necessary in order to ensure that enclosures and associated infrastructure are consistent with the description and depictions contained in the permit application, and that the facility is anchored appropriately.

Proposed new §57.254, concerning Permit Denial, would prescribe the conditions under which the department would automatically refuse to issue a permit or a permit renewal or authorize an amendment to a permit. The new section is necessary because there are certain circumstances under which the department would not authorize new or continued activities, such as a proposed activity that is inconsistent with the department’s stocking policy or management objectives, or, in the case of an offshore aquaculture permit, an application that is not complete. The department’s oversight of introductions to the wild is delineated by rule in the department’s stocking policy (31 TAC Chapter 52). Additionally, various management plans and research activities are required by statute for various marine species (Texas Parks and Wildlife Code, §66.018-Crabs; §66.217-Finfish; §76.301-Oysters; §77.007-Shrimp). Taken together, the rules and policies represent the department’s efforts to execute its duties to protect and manage wildlife resources. Clearly, the proposed new rules should be consistent with the overall direction and tenor of these efforts. Thus, the provisions of the proposed new section constitute a reasonable safeguard for wildlife resources.

Proposed new §57.255, concerning Permit Renewal, would establish the process by which a person could renew an offshore aquaculture permit. The proposed new rule would require that the applicant for renewal have been in compliance with the provisions of the subchapter for the one-year period prior to application for renewal, and that the facility be in compliance with all applicable standards. Additionally, the proposed new section would stipulate that the department will not renew an expired permit. The proposed new rule is necessary to provide for the operation of an offshore aquaculture facility on a year-to-year basis without interruption, provided the applicant and the facility are in compliance with all applicable laws and regulations. The provision stipulating that an expired permit cannot be renewed is necessary because once a permit has expired, any further operation of a facility is unlawful. Obviously, the department would not desire to issue a permit for a facility that was operating illegally.

Proposed new §57.256, concerning Permit Amendment, would prescribe the process for amending an existing permit to allow for changes in operation or stock. The amendment is necessary because any type of animal husbandry is by nature a dynamic process subject to changes; therefore, the department desires to provide a mechanism by which a permitee may adjust or alter a facility or stock within a facility, provided the changes do not conflict with the provisions of the subchapter.

Proposed new §57.257, concerning Reporting and Recordkeeping, would require offshore aquaculture permittees to maintain records of all stock introduced or removed and submit an annual report to the department within 14 days following the expiration of a permit even if the original permit has been renewed. The proposed rule would also require permittees to furnish such records upon request of a department employee acting within the scope of official duties. The proposed new rule is necessary to allow the department to monitor offshore aquaculture activities.

Proposed new §57.258, concerning Prohibited Acts, sets forth general and specific actions and conditions that are prohibited. The proposed new section would make it unlawful to violate a condition of a permit. The department reasons that when a permit is issued to an individual, it is under the expectation that the permitee understands and intends to obey all applicable legal provisions. The proposed provision is necessary to explicitly acknowledge that expectation.

The proposed new section also would prohibit the addition or removal of stock without at least three days’ advance notice to the department. The proposed provision is necessary to allow the department to monitor activities involving the actual transfer of live fish, shellfish, or aquatic plants to or from an offshore aquaculture facility. The department believes that the three-day requirement is reasonable.

Proposed new §57.259, concerning Violations and Penalties, would prescribe the potential penalty for a violation of the subchapter or a provision of a permit issued under the subchapter. The proposed new section is necessary to stipulate the punishment for conviction for a violation of the subchapter.

2. Fiscal Note.

Robin Riechers, Director of Science and Policy, has determined that for each of the first five years that the proposed rules are in effect, there will be additional costs to state government as a result of administering or enforcing the proposed rules. Since a fee is being implemented to recoup the costs of administration of the offshore aquaculture permit, it is believed the net costs to the agency will be zero. There will be no costs to units of local government.

3. Public Benefit/Cost Note.

Mr. Riechers 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 rule is the protection of the aquatic ecosystem in Texas waters. The rules will help to ensure that the current environment and species will not be negatively impacted by aquaculture facilities established in Texas waters. An additional benefit is the potential economic activity associated with aquaculture facilities off the coast of Texas. These benefits could accrue in the form of jobs and sales revenue in the local and state economy and the benefits that may accrue to the consumer in terms of the quality and quantity of seafood product landed in the state.

(B) There will be an adverse economic effect on small businesses, microbusinesses, and persons required to comply with the rule as proposed, which will be the $1,500 fee per permit, which is addressed in a separate rulemaking elsewhere in this issue. The cost of compliance is the same for all businesses, irrespective of size. The department is unable to compare the cost of compliance for the small businesses to the cost of compliance for the largest business affected by the proposed rules, since offshore aquaculture is in its infancy in the United States and never has been practiced in Texas waters beyond experimental trials.

The department assumes that most offshore aquaculture enterprises will be small or microbusinesses; therefore, for a small or microbusiness the maximum cost per business would be $1,500 per aquaculture facility permit. Assuming the smallest business would have only one employee the maximum cost per employee would also be $1,500 per aquaculture facility permit. If any small businesses had more than one aquaculture site permitted the additional cost per site would be $1,500. The department is unable to make comparisons based on labor costs or sales volumes, since, as noted earlier, offshore aquaculture has not been attempted in Texas waters and there is little data available to consider on the costs of production and sales on a commercial viable scale.

(C) The department has not drafted a local employment impact statement under Government Code, §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.

4. Request for Public Comment.

Comments on the proposal may be submitted to Jerry L. Cooke, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4492; e-mail: jerry.cooke@tpwd.state.tx.us.

5. Statutory Authority.

The repeals are proposed under Parks and Wildlife Code, §12.015, which requires the department to regulate the introduction and stocking of fish, shellfish, and aquatic plants into the public water of the state; §66.015(c), which requires the department to establish rules related to the issuance of permits for the introduction of fish, shellfish, or aquatic plants into the public water of the state; and Agriculture Code, §134.005, which requires the commission to adopt rules necessary to carry out its responsibilities under that chapter to regulate aquaculture.

The proposed repeals affect Parks and Wildlife Code, Chapters 12, 61, and 66, and Agriculture Code, Chapter 134.

57.251.Definitions.

57.252. Prohibited Acts.

57.253. Permit Exemptions.

57.254. Permit Application; Validity.

57.255. Permit Denial.

57.256. Appeal.

57.257. Penalties.

The new sections are proposed under Parks and Wildlife Code, §12.015, which requires the department to regulate the introduction and stocking of fish, shellfish, and aquatic plants into the public water of the state; §66.015(c), which requires the department to establish rules related to the issuance of permits for the introduction of fish, shellfish, or aquatic plants into the public water of the state; and Agriculture Code, §134.005, which requires the commission to adopt rules necessary to carry out its responsibilities under that chapter to regulate aquaculture.

The proposed new sections affect Parks and Wildlife Code, Chapters 12, 61, and 66, and Agriculture Code, Chapter 134.

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

(1) Aquaculture—The business of producing and selling cultured species raised in private facilities.

(2) Aquatic plant—All plants whose seeds germinate in either the water phase or the substrate of a body of water and which must spend part of the life cycle in water (Reid, G.K., and R.O. Wood 1976, Ecology of Inland Waters and Estuaries).

(3) Disease condition—

(A) The presence of contagious pathogens or injurious parasites known or clinically suspected of constituting a threat to the health of native species of aquatic organisms; or

(B) A mortality rate of five percent or more occurring within a period of seven days in a single enclosure.

(4) Enclosure – A structure in public water that is capable of preventing the escape of the stock confined within it and the entry of aquatic animal life from surrounding waters.

(5) Fishing—Taking or attempting to take aquatic life by any means.

(6) Native species—All fish, shellfish, or aquatic plants documented by the department to live, spawn, or reproduce in Texas offshore waters and whose first documented occurrence in Texas offshore waters was not the result of direct or indirect importation by man.

(7) Offshore aquaculture facility-All enclosures and associated infrastructure used to produce, hold, propagate, transport, or sell stock under authority of an offshore aquaculture permit.

(8) Outside waters – All the salt water of the state contiguous to and seaward from the shoreline of the state, along the Gulf of Mexico as the shoreline is projected and extended in a continuous and unbroken line, following the contours of the shoreline, across bays, inlets, outlets, passes, rivers, streams, and other bodies of water; and that portion of the gulf of Mexico from the shoreline extending outward nine nautical miles.

(9) Shellfish—Aquatic species of crustaceans and mollusks, including oysters, clams, shrimp, prawns, and crabs of all varieties.

(10) Stock – Native species of fish, shellfish, or aquatic plants intended for use in, being transported to, or contained within an offshore aquaculture facility under the terms of an offshore aquaculture permit.

(11) Waste - As defined in Water Code, §26.001.

§57.252. General Provisions.

(a) A permit issued under this subchapter shall be issued to a named individual only and not in the name of a corporation, company, or other entity.

(b) An offshore aquaculture permit authorizes permitted activities in a specific Outer Continental Shelf Block.

(c) The offshore aquaculture permit shall be issued only for the cultivation of native species whose genetic provenance can be proven to the department’s satisfaction to consist exclusively of individuals:

(1) obtained from the Gulf of Mexico; or

(2) descended solely from individuals obtained from the Gulf of Mexico.

(d) A one-time introduction permit is valid for 60 days from the date of issuance or until the permitted introduction has been completed, whichever comes first.

(e) An offshore aquaculture permit shall be valid from the date of issuance until the first day of the immediately following year.

(f) The department may inspect:

(1) any enclosure or infrastructure used to engage in offshore aquaculture; or

(2) vessel used to transport stock and equipment to and from an offshore aquaculture facility.

(g) The department may order the removal of all stock from an enclosure upon:

(1) a determination that a disease condition exists; or

(2) an enforcement action by a federal or state agency resulting in the suspension or revocation of a clearance, permit, or authorization that is required under §57.253 of this title (relating to Permit Application).

(h) The department may sample stock to determine genetic heritage.

(i) A permit issued under this subchapter may not be sold or transferred.

§57.253. Permit Application.

(a) An applicant for a permit under this subchapter shall complete and submit an application to the department on a form supplied by the department, accompanied by the fee prescribed by §53.15 of this title (relating to Miscellaneous Fisheries and Wildlife Licenses and Permits).

(b) Except for applications for offshore aquaculture permits, an application must be received by the department at least 30 days before the proposed introduction.

(c) An application for an offshore aquaculture facility:

(1) must be received by the department at least 90 days prior to the proposed deployment of any enclosure or infrastructure;

(2) must include:

(A) The name, address, and telephone number of the owner(s) of the facility and all stock;

(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;

(iii) all applicable state and federal permits, authorizations, or clearances related to navigational hazards; and

(iv) approval from the General Land Office to anchor the facility;

(C) a clear and concise facility design, including scale plans and schematics of all infrastructure that, as determined by the department, is sufficient to:

(i) prevent the escape of stock from the facility; and

(ii) protect wildlife resources adjacent to the facility from:

(I) disease transmission from stock;

(II) the discharge of pollutants produced from feed or waste materials into public waters, including discharges resulting directly or indirectly from extreme weather conditions or physical collision; and

(III) the escape of stock from the facility as a result of extreme weather conditions or physical collision; and

(IV) death or injury from ensnarement, entanglement, collision, or other physical interactions with enclosures or facility infrastructure;

(D) a clear and concise operations plan, which shall include best management practices that minimize potentially harmful discharges into public waters from the facility;

(E) a prospective timeline of proposed activities, by species, from the time of introduction to the time of harvest or removal;

(F) a plan for removing all stock from the facility within 72 hours of notice from the department under §57.252 of this title (relating to General Provisions); and

(G) a statement that all stock meets the requirements of §57.252 of this title.

(d) An offshore aquaculture permit will not be issued unless the department has conducted an inspection of all enclosures and infrastructure and found such to be consistent with the information provided in the application.

§57.254. Denial. A permit, permit renewal, or permit amendment under this subchapter will be denied if:

(1) a proposed introduction does not meet the requirements of §§52.101-52.401 of this title (concerning Stocking Policy);

(2) the proposed introduction is not consistent with management objectives of the department; or

(3) the application is for an offshore aquaculture facility and does not contain or inadequately addresses the requirements of §57.253(c) of this title (relating to Permit Application).

§57.255. Renewal.

(a) The department may renew a current offshore aquaculture permit, provided:

(1) the applicant has complied with all requirements of this subchapter and permit provisions during the one-year period immediately preceding renewal;

(2) the facility is in compliance with all operational and facility standards as reflected in the current permit (including amendments);

(3) the applicant has completed and submitted an application for permit renewal; and

(4) the applicant has paid the fee prescribed by §53.15 of this title (relating to Miscellaneous Fisheries and Wildlife Licenses and Permits ).

(b) The department will not renew an expired permit.

§57.256. Amendment.

(a) An offshore aquaculture permit may be amended, provided the applicant:

(1) has complied with all requirements of this subchapter and permit provisions during the one-year period immediately preceding the date of the application for amendment;

(2) has complied with all applicable requirements of §57.253 of this title (relating to Permit Application);

(3) has completed and submitted an application for permit amendment; and

(4) the amendment is not extensive enough to merit an additional facility inspection. An amendment extensive enough to warrant an additional facility inspection shall be treated as an application for a new permit and the provisions of §57.253 of this title shall apply.

(b) A permit amendment must be approved by the department prior to any of the following:

(1) the introduction of new species of stock to a facility;

(2) the discontinuance of any species of stock in a facility;

(3) any change in the source of stock;

(4) any modification of methods, procedures, facility design, or facility infrastructure affecting:

(A) the physical components of the facility;

(B) the prevention of escape of stock from the facility; or

(C) the discharge of pollutants from the facility; or

(5) a change to the physical structure or components of an enclosure.

(c) An application for a permit amendment must be submitted within 10 days of any change in ownership of the facility or stock.

(d) The department will not amend an expired permit.

§57.257. Reporting and Recordkeeping.

(a) An offshore aquaculture permitee shall maintain and keep current an accurate daily record of all stock introduced or removed from each enclosure within a facility, including mortalities.

(b) An offshore aquaculture permitee shall complete and submit an annual report to the department on a form supplied by the department by no later than January 15.

(c) While performing any permitted activity within or in transit to or from an offshore aquaculture facility, a person must physically possess a legible copy of the offshore aquaculture permit under which the activity is being performed.

(d) The records required by this section shall be made available to the department upon the request of a department employee acting within the scope of official duties.

§57.258. Prohibited Acts. Except as provided in this subchapter, it is an offense if:

(1) a person holding a permit under this section fails to notify the department at least three calendar days prior to the placing of any fish, shellfish, or aquatic plant into public water;

(2) a person holding a permit under this section fails to notify the department at least three calendar days prior to removing any fish, shellfish, or aquatic plant from an offshore aquaculture facility;

(3) a person holding a permit under this section fails to notify the department immediately upon discovering that a disease condition exists within an offshore aquaculture facility;

(4) a person holding a permit under this section fails to notify the department immediately upon determining that an offshore aquaculture facility has been damaged and the threat of the unintentional release of stock exists;

(5) any person to whom the department has issued an offshore aquaculture permit fails to remove all enclosures and associated infrastructure from public waters within 10 calendar days of permit expiration or revocation.

§57.259. Violations and Penalties.

(a) A person who violates a provision of this subchapter or a provision of a permit issued under this subchapter commits an offense punishable by the penalty prescribed by the Parks and Wildlife Code, §66.012.

(b) A permit issued under this section is not a defense to prosecution for any conduct not specifically authorized by the permit.

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

Filed with the Office of the Secretary of State on September 15, 2006.


Commission Agenda Item No. 8
Exhibit B

Offshore Aquaculture Rules – Fees
Proposal Preamble

1. Introduction.

The Texas Parks and Wildlife Department (the department) proposes an amendment to §53.15, concerning Miscellaneous Fisheries and Wildlife License and Permits.

Under the provisions of Parks and Wildlife Code, §66.015, 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. In a proposed rulemaking published elsewhere in this issue of the Texas Register, the department proposes to create an offshore aquaculture permit, which would be required of any person engaging in offshore aquaculture in Texas state waters. The fee for a permit or permit renewal would be $1,500. Under current rule there is no fee for a one-time permit to introduce fish, shellfish, or aquatic plants, because review of such applications is perfunctory and rare. However, the department wishes to acknowledge that fact by listing the permit and the fact that it is a free permit. Under Parks and Wildlife Code, §11.027, the commission by rule may establish and provide for the collection of a fee to cover costs associated with the review of an application for a permit required by the Parks and Wildlife Code. The review process for an offshore aquaculture permit is estimated by the department to cost approximately $1,500, which consists of the cost of staff time to perform necessary research and analysis of facility plans, contingency plans, sources of stock, verification of genetic ancestry, and site inspection.

2. Fiscal Note.

Robin Riechers, Director of Science and Policy, has determined that for each of the first five years that the proposed rule is in effect, there will be no additional costs to state or local governments as a result of administering or enforcing the proposed rule, since the fee is being implemented to recoup expenses to the agency.

3. Public Benefit/Cost Note.

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

(A) The public benefit anticipated as a result of enforcing or administering the rule is the collection of fees to recoup the administrative costs of reviewing applications.

(B) There will be an adverse economic effect on small businesses, microbusinesses, and persons required to comply with the rule as proposed, which will be the $1,500 fee per permit. The cost of compliance is the same for all businesses, irrespective of size. The department is unable to compare the cost of compliance for the small businesses to the cost of compliance for the largest business affected by the proposed rules, since offshore aquaculture is in its infancy in the United States and never has been practiced in Texas. Consequently there is no data available for purposes of analysis. The department assumes that most offshore aquaculture enterprises will be small or microbusinesses; therefore, for a small or microbusiness the maximum cost per employee would be $1,500 (one employee). The department is unable to make comparisons based on labor costs or sales volumes, since, as noted earlier, offshore aquaculture is not established in the United States; thus, such estimates would be in the realm of the conjectural, given the variables of facility design, employee skill level, workforce size, potential cultivars, market demand, and prices.

(C) The department has not drafted a local employment impact statement under Government Code, §2001.022, as the agency has determined that the rule 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 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.

4. Request for Public Comment.

Comments on the proposed rule may be submitted to Jerry L. Cooke, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4492; e-mail: jerry.cooke@tpwd.state.tx.us.

5. Statutory Authority.

The amendment is proposed under Parks and Wildlife Code, §11.027, which authorizes the commission to establish and provide for the collection of a fee to cover costs associated with the review of an application for a permit required by the Parks and Wildlife Code.

The proposed amendment affects Parks and Wildlife Code, §11.027.

§53.15 Miscellaneous Fisheries and Wildlife Licenses and Permits.

(a)-(f) (No change.)

(g) Miscellaneous fees:

(1) commercial plant permit—$50;

(2) aerial management permit—$200;

(3) broodfish permit application—$25;

(4) permit to introduce fish, shellfish, or aquatic plants—no fee;

(5) offshore aquaculture permit or renewal—$1,500;

(6)[(4)] oyster lease application—$200;

(7)[(5)] oyster lease rental—$6 per acre of location per year;

(8)[(6)] oyster lease renewal /transfer/sale—$200; and

(9)[(7)] double-crested cormorant control permit—$12.

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

Filed with the Office of the Secretary of State on September 15, 2006.


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