Commission Agenda Item No. 2
Presenter: Ann Bright

Action
Rule Review – Recommended Adoption of Proposed Changes
March 28, 2013

I. Executive Summary: As required by the Administrative Procedure Act, TPWD has undertaken a review of each TPWD rule under its jurisdiction. TPWD staff is seeking adoption of amendments to Chapters 57, 58, and 65 of TPWD rules following the review of those rules. TPWD staff is also seeking adoption of the completed review of rules in those chapters.

II. Discussion: Section 2001.039 of the Texas Government Code requires state agencies to review each rule under its jurisdiction at least once every four years. The review must include an assessment of whether the reasons for initially adopting a rule continue to exist. Notice of the proposed review must be published in the Texas Register for public comment. Following the review, rules must be readopted, adopted with changes, or repealed, based on the review.

In January 2013, following staff’s review of the rules in Chapter 57-Fisheries, Chapter 58-Oysters and Shrimp, and Chapter 65-Wildlife, the Commission authorized staff to publish proposed changes to those chapters in the Texas Register. Staff is now seeking adoption of the proposed changes to those chapters and adoption of the completed review of those chapters.

III. Recommendation: The staff recommends the Texas Parks and Wildlife Commission adopt the following motion:

“The Texas Parks and Wildlife Commission adopts the repeal of §§57.122, 57.399 and 57.920, amendments to §57.111-57.114, 57.116-57.119, 57.125, 57.126, 57.131, 57.132, 57.136, 57.251,57.253, 57.257, 57.377, 57.378, 57.380-57.382, 57.391, 57.392, 57.394, 57.395, 57.397, 57.691, 57.930, and 57.932, new 57.122, 57.371 and 57.399; amendments to §§58.10, 58.22, 58.23, 58.30, 58.40, 58.50, 58.60, 58.160, 58.202, and 58.301, and the title of Chapter 58; and, amendments to §§65.107, 65.131, and 65.375, as published in the February 22, 2013, issue of the Texas Register (38 Tex.Reg. 1091-1112, 1114-1117, 1121-1122), with changes as necessary to the proposed text, and also adopts the completed rule review of Chapters 57, 58, and 65 of the Texas Parks and Wildlife Department rules (Title 31, Part II of the Texas Administrative Code).”

Attachments – 3

  1. Exhibit A - Chapter 57 Proposed Rule Amendments
  2. Exhibit B - Chapter 58 Proposed Rule Amendments
  3. Exhibit C - Chapter 65 Proposed Rule Amendments

Commission Agenda Item No. 2
Exhibit A

LEGISLATIVE RULES REVIEW

CHAPTER 57. FISHERIES

1. Introduction.

         The Texas Parks and Wildlife Department proposes the repeal of §§57.122, 57.399 and 57.920, amendments to §57.111-57.114, 57.116-57.119, 57.125, 57.126, 57.131, 57.132, 57.136, 57.251,57.253, 57.257, 57.377, 57.378, 57.380-57.382, 57.391, 57.392, 57.394, 57.395, 57.397, 57.691, 57.930, and 57.932, and new 57.122, 57.371, and 57.399, concerning Chapter 57, Fisheries. The proposed repeals, amendments and new sections are a result of the department’s review of its regulations under the provisions of Government Code, §2001.039, which requires a state agency to review each of its regulations no less frequently than every four years and to re-adopt, adopt with changes, or repeal each rule as a result of the review.

Subchapter A. Harmful or Potentially Harmful Fish, Shellfish, and Aquatic Plants

         The proposed amendment to §57.111, concerning Definitions, would update the scientific names of organisms regulated under Subchapter A and alters punctuation to make taxonomic references clearer. From time to time the scientific community reclassifies an organism in light of consensus and/or emerging science. The proposed amendment consists solely of changes to reflect the current taxonomic status of various organisms.

         The proposed amendment to §57.112, concerning General Rules, would combine subsections (b) and (c) into a single subsection for ease of reference.

         The proposed amendment to §57.113, concerning Exceptions, would delete the language referencing “the permittee’s private facilities” in subsection (a), alter subsection (b) to add “beheaded” as an acceptable predicate for the possession of exotic harmful or potentially harmful fish or shellfish without a permit, replace the word “harvested” with the word “taken” in subsection (c), add new subsections (d) and (e) to clarify the conditions under which triploid grass carp lawfully may be taken, and alter current subsection (l) to clarify the applicability of the provision. The change in subsection (a) is for the purpose of eliminating unnecessary language.  The change to subsection (b) is necessary because the intent of the provision is to establish a condition under which the inability of an organism to cause harm is a physiological certainty. The change to subsection (c) is necessary because “take” has a specific meaning as defined in Parks and Wildlife Code, §1.001, while “harvest” is not defined. New subsections (d) and (e) are necessary because the current rule does not address the removal of grass carp from private waters or the removal of grass carp from public waters following either the attainment of the management goal of the stocking or the expiration of the permit under which a stocking has taken place. The department issues permits for the stocking of public and private waters with triploid grass carp to control undesirable aquatic vegetation. Triploid grass carp cannot reproduce, but they can negatively affect ecological systems in places where they should not be stocked. Therefore, the current rules require that all grass carp removed from stocked areas be gutted or beheaded in order to prevent the accidental or intentional introduction to unsuitable environments.  The two new subsections articulate specific circumstances under which it is lawful to possess grass carp without a permit. The proposed amendment to current subsection (l) clarifies that the department’s conditions for the removal and disposal of exotic species are not restricted solely to exotic species removed by mechanical harvesting. The proposed amendment also alters current subsection (j)(2) to replace a capital letter with a lower-case letter in order to preserve parallel construction.

         The proposed amendment to §57.114, concerning Health Certification of Harmful or Potentially Harmful Exotic Shellfish, would insert hyphens into compound phrases in subsections (a), ( d), (f), and (g) to create grammatically correct adjectival phrases.

         The proposed amendment to §57.116, concerning Exotic Species Transport Invoice, would remove a reference to the Exotic Species Program Leader in the notification requirements set forth in subsection (b). The referenced job title is an artifact and no longer exists.

         The proposed amendment to §57.117, concerning Exotic Species Permit: Application Requirements, alters subsection (a) to insert a hyphen into a compound phrase to create a grammatically correct adjectival phrase.

         The proposed amendment to §57.118, concerning Exotic Species Permit Issuance, would insert a hyphens into compound phrases in subsection (a) to create grammatically correct adjectival phrases.

         The proposed amendment to §57.119, concerning Exotic Species Permit: Requirements for Permits, would alter subsection (a) to delete “authorized” as being unnecessary in reference to department personnel, alter subsections (c) and (l) to remove references to the Exotic Species Program Leader, for the reason set forth in the discussion of the proposed amendment to §57.116, and would eliminate references to “private facility” and “aquaculture” in subsections (h), (k), and (l) because the nature of ownership of a facility is immaterial to the provisions governing the release or escape of harmful or potentially harmful exotic species, and because the provisions apply to any facility for which a permit has been issued and not solely to aquaculture facilities.

         The proposed repeal of §57.122 and new §57.122, concerning Permit Denial Review, would set forth the procedure for an applicant for a permit to request a review of a decision of the department to refuse issuance of a permit or permit renewal.

         The proposed amendment to §57.125, concerning Triploid Grass Carp Permit; Application, Fee, would replace the phrase “authorized employees” with the phrase “an employee,” because an inspection cannot be conducted by anyone other than an employee authorized to conduct inspections and is thus redundant.

         The proposed amendment to §57.126, concerning Triploid Grass Carp Permit: Terms of Issuance, would clarify that the provisions of subsection (a) apply to subsequent stockings of triploid grass carp as well as to initial stockings. The proposed amendment also would remove subsection (a)(6) and (7) and insert the phrase “and objectives” into subsection (a)(5). The effect of the proposed amendment is to consolidate the practical effect of three paragraphs in a single paragraph.

         The proposed amendment to §57.131, concerning Exotic Species Interstate Transport Permit; Application and Issuance, and §57.132, concerning Exotic Species Interstate Transport Permit: Permittee Requirements, would eliminate references to Exotic Species Program Leader for the reason set forth in the discussion of the proposed amendment to §57.116.

         The proposed amendment to §57.136, concerning Special Provisions — Water Spinach, would alter subsection (c)(5) to clarify provisions governing the nature of buffer zones surrounding areas where water spinach is cultured, handled, packed, processed, stored, shipped, or disposed of under a permit issued by the department.  Under current rule, a buffer area of at least 10 feet in width and devoid of all vegetation must maintained around the perimeter of all areas where water spinach is cultured, handled, packed, processed, stored, shipped, or disposed of.  The department has discovered that there are some permittees for whom this provision is problematic given the location of mature trees.  The department has determined that the provision can be modified with no diminution of its effectiveness in preventing the accidental release or spread of water spinach. The proposed amendment therefore would allow mature woody vegetation within the buffer zone and would allow the department to allow less than 10 feet of buffer for greenhouses built before 2009, when the current rules governing possession and culture of water spinach were promulgated.

Subchapter C. Introduction of Fish, Shellfish and Aquatic Plants.

         The proposed amendment to §57.251, concerning Definitions, would clarify the definition of “native species” by noting that the current definition includes species native to the Texas Territorial Sea and federal waters within the Exclusive Economic Zone. The Texas Territorial Sea is those waters from the coastline to nine nautical miles offshore. The Exclusive Economic Zone is the federal waters that begin at nine nautical miles from the coastline and extend to international waters.

         The proposed amendment to §57.253, concerning Permit Application, would alter subsection (f)(3) to update the title of one of the department employees who serve on the review panel established by the section.

         The proposed amendment to §57.257 concerning Reporting and Recordkeeping would eliminate “acting within the scope of official duties” as unnecessary and redundant.

Subchapter D. Commercially Protected Finfish.

         Proposed new §57.371, concerning Applicability: Commercially Protected Finfish, would recapitulate statutory provisions in rule for ease of reference. The species listed in the proposed new section are classified as protected fish under Parks and Wildlife Code, §66.020, which also makes it unlawful for any person to buy, offer to buy, sell or offer to sell, possess for the purpose of sale, transport or ship for the purpose of sale, barter, or exchange those species. Additionally, the proposed new rule would stipulate that in order to be lawfully imported, certain species of protected finfish can only be imported by the holder of a finfish import license and must be farm raised and fed a prepared feed containing 20% or more of plant protein or grain by-products as a primary food source. Parks and Wildlife Code, §66.020(b)(3) allows the lawful importation by the holder of a Texas finfish import license of bass of the genus Micropterus, crappie, flathead catfish, red drum, striped bass, white bass or a hybrid of any of these fish, provided they have been “continuously fed a prepared feed as a primary food source.” “Prepared feed” is defined by Parks and Wildlife Code, §66.001(2) as “a pelleted ration, 20 percent of more of which consists of plant protein or grain by-products.”

Subchapter E. Permits to Sell Nongame Fish Taken from Public Fresh Water

         The proposed amendment to §57.377, concerning Definitions, would update citations of regulations in other parts of the Texas Administrative Code that have been redesignated by previous rule action.

         The proposed amendment to §57.378, concerning Applicability: Nongame Fishes, would update the scientific names of two species and eliminate a reference to a species that is extremely rare in Texas and therefore is not commercially valuable.

         The proposed amendment to §57.380, concerning Permit Application, would eliminate the requirement that an application for a permit to sell nongame fish taken from public fresh water be notarized. Notarization is not necessary as a means to certify that information is accurate because falsification of a government record is an offense under Penal Code, §37.10. Therefore, the current requirement is unnecessary.

         The proposed amendment to §57.381, concerning Permit Specifications and Requirements, would alter the requirements of subsection (a)(2) to replace the term “location” with the term “water body” and eliminate the term “time.” The proposed amendment would also delete current subsection (a)(4) regarding the specification of the number of nongame fish.  The current rule stipulates that the department, when issuing a permit to sell nongame fish taken from public fresh water, shall specify the “location and time” where the activity is permitted. The department has determined that it is more precise to indicate the water body where activity is permitted rather than the place, and to eliminate the time requirement, because the department specifies the duration of permit validity and is not concerned as to the time of day when activities are conducted under a permit.  Also, the department has determined that there is no need to specify the number of nongame fish for which take and sale is allowed.

         The proposed amendment to §57.382, concerning Harvest and Sales Reports, would require annual harvest and sales reports to be submitted to the department on or before the 10th day of January each year. Under current rule, annual harvest and sales reports are due by the 10th day of December each year. The department has determined that because the permits expire in January, requiring the report to be submitted in December results in potentially inaccurate reporting, since the reports must be submitted before the period of validity of the permit expires.

Subchapter F. Collection of Broodfish from Texas Waters

         The proposed amendments to §57.391, concerning Definitions, and §57.392, concerning General Rules, would replace the term “sportfishing” with the term “recreational fishing.” The department does not use the term “sportfishing” in any context other than the saltwater sportfishing stamp, which is the name established by statute for that tag. In all other contexts, the department utilizes the term “recreational” to refer to noncommercial angling.

         The proposed amendment to §57.394, concerning Broodfish Collection, would replace the term “aquaculture coordinator” with the term “coastal or inland regional fisheries office.” The department does not employ an aquaculture coordinator and has determined that it is more efficient to have permittees notify the nearest fisheries office in addition to the nearest law enforcement office.

         The proposed amendment to §57.395, concerning Broodfish Permits; Fees, Terms of Issuance, would eliminate subsection (e)(3), which duplicates fee information located in 31 TAC Chapter 53.

         The proposed amendment to §57.397, concerning Broodfish Permit; Revocation, would replace the term “sportfishing” with the term “recreational fishing” for the reason discussed in the proposed amendments to §57.391 and §57.392, and eliminates a reference to the saltwater stamp, which can no longer be purchased separately from a fishing license.

         The proposed repeal of §57.399 and proposed new §57.399, concerning Permit Denial Review, would set forth the procedure for an applicant for a permit to request a review of a decision of the department to refuse issuance of a permit or permit renewal.

Subchapter H. Fishery Management Plans

         The proposed amendment to §57.691, concerning Fishery Management Plans, would list fisheries management plans that were inadvertently not included in the section. The proposed amendment is necessary for accuracy and ease of reference.

Subchapter K. Scientific Areas

         The proposed repeal of §57.920, concerning Nine-Mile Hole State Scientific Area, is necessary because the section’s effectiveness ceased on its own terms on June 30, 2005.

Subchapter L. Aquatic Vegetation Management

         The proposed amendment to §57.930, concerning Definitions, would define “NPDES” as National Pollutant Discharge Elimination System. The NPDES Permit Program is administered by the Environmental Protection Agency (EPA) under the Clean Water Act.” The proposed amendment is self-explanatory.

         The proposed amendment to §57.932, concerning State Aquatic Vegetation Plan, would makes changes necessary to allow the department to react with greater quickness when infestations of exotic aquatic plants are discovered.

2. Fiscal Note.

         Ken Kurzawski, Program Director, Inland Fisheries Division, 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 and local governments as a result of enforcing or administering the rules.

3. Public Benefit/Cost Note.

         Mr. Kurzawski 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 clearer, more easily understood rules that enhance compliance and enforcement.

         (B) There will be no adverse economic effect on persons required to comply with the rules as proposed.

         (C) Under the provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect affect on small businesses and micro-businesses. As required by Government Code, §2006.002(g), the Office of the Attorney General has prepared guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small businesses. Those guidelines state that an agency need only consider a proposed rule’s “direct adverse economic impacts” to small businesses and micro-businesses to determine if any further analysis is required. For that purpose, the department considers “direct economic impact” to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services. Since the proposed rules for the most part make nonsubstantive changes and because the substantive changes that are made do not affect small or micro-businesses, the department has determined that the proposed amendments will not impose any direct adverse economic effects on small businesses or microbusinesses. Accordingly, the department has not prepared a regulatory flexibility analysis under Government Code, Chapter 2006.

         (D) 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.

         (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 proposed rule may be submitted to Ken Kurzawski, Texas Parks and Wildlife Department 4200 Smith School Road, Austin, Texas, 78744; (512) 389-4591 (e-mail: ken.kurzawski@tpwd.state.tx.us).

5. Statutory Authority.

         The amendments and new rule are proposed under the authority of Parks and Wildlife Code, §66.007 and §66.0072, which require the commission to make rules to carry out those sections.

         The proposed amendments and new rule affect Parks and Wildlife Code, Chapter 66.

6. Rule Text.

Subchapter A. Harmful or Potentially Harmful Fish, Shellfish, and Aquatic Plants.

         §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) – (4) (No change.)

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

                 (6) (No change.)

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

                 (8) – (12) (No change.)

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

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

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

                  (15) [(16)]) Harmful or potentially harmful exotic fish —

                         (A) Lampreys: Family Petromyzontidae[Lampreys Family: Petromyzontidae] — all species except Ichthyomyzon castaneus and I. gagei;

                         (B)  Freshwater Stingrays: Family Potamotrygonidae [Freshwater Stingrays Family: Potamotrygonidae] — all species;

                         (C) Arapaima: Family Arapaimidae[Arapaima Family: Arapaimidae] — Arapaima gigas;

                         (D) South American Pike Characoids: Family Acestrorhynchidae[South American Pike Characoids Family: Acestrorhynchidae] — all species of genus Acestrorhynchus;

                         (E) African Tiger Fishes: Family Alestidae[African Tiger Fishes Family: Alestidae] — all species of genus Hydrocynus;

                         (F) Piranhas: Family Characidae (Subfamily Serrasalminae) — all species of the genera Catoprion, Pristobrycon, Pygocentrus, Pygopristis, and Serrasalmus[Piranhas and Pirambebas: Family Characidae all species of the genus Piaractus];

                         (G) Dogtooth characins (Payara and vampire tetras): Family Cynodontidae — all species of genera Hydrolycus, Rhaphiodon, and Cynodon; [(G) Payara and other wolf or vampire tetras: Dogtooth characins, Family Cynodontidae — all species of genera Hydrolycus, Rhaphiodon, and Cynodon;]

                         (H) Dourados: Family Characidae (Subfamily Salmininae) — all species of genus Salminus[Dourados: Family Characidae, Subfamily: Incertae sedis — all species of genus Salminus];

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

                         (J) South American Pike Characids: Family Ctenoluciidae[South American Pike Characoids Family: Ctenoluciidae] — all species of genera Ctenolucius and Boulengerella;

                         (K) African Pike and Lute Fishes: Families Hepsetidae and Citharinidae[African Pike Characoids- Families Hepsetidae and Citharinidae] — all species;

                         (L) Electric Eels: Family Gymnotidae[Electric Eels Family; Gymnotidae] — Electrophorus electricus;

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

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

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

                         (P) South American Parasitic Candiru Catfishes: Family[Catfishes Family:] Trichomycteridae — all species.

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

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

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

                         (T) Asian Pikeheads: Family Osphronemidae — all species of the genus Luciocephalus[Asian Pikeheads Family: Osphronemidae—Luciocephalus];

                         (U) Snakeheads: Family Channidae[Snakeheads: Family Channidae] — all species;

                         (V) Perch: Family Percidae[Old World Pike Perches: Family Percidae] — all species of the genus Sander except Sander canadensis and S. vitreus and hybrids between these two species and all species of genus Gymnocephalus[vitreus];

                         (W) Nile Perch: Family Latidae[Nile Perch Family: Latidae] — all species of genus Lates;

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

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

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

                         (Z)[(AA)]) Airsac Catfishes: Family Heteropneustidae[Air sac Catfishes: Family: Heteropneustidae] — all species;

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

                         (BB)[(CC)] Freshwater Eels: Family Anguillidae[Freshwater Eels Family: Anguillidae] — all species except Anguilla rostrata;

                         (CC)[(DD)] Round Gobies: Family Gobiidae[Round Gobies: Family Gobiidae] — all species of genus Neogobius;

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

                         (EE)[(FF)] Temperate Perches: Family Percichthyidae[Temperate Perches Family: Percichthyida] — all species.

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

                         (A) Crayfishes: Family[:] Parastacidae — all species;

                         (B) Mitten Crabs:[crabs:] Family Varunidae — all species of genus Eriocheir;

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

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

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

                         (F) Applesnails and Giant Rams-Horn Snails: Family Ampullariidae — all species of the genera Marisa and Pomacea except Pomacea bridgesi (spiketop applesnail).  [Applesnails and Giant Rams-Horn Snail Family Ampullariidae and Marisa, except spiketop applesnail (Pomacea bridgesi).]

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

                         (A) [Giant or] Dotted Duckweed: Family[:] Araceae[(previously Lemnaceae)] — Landoltia punctata;

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

                         (C) Water hyacinth: Family[:] Pontederiaceae — Eichhornia crassipes (floating water hyacinth) and E. azurea (rooted water hyacinth);

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

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

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

                         (L) Ambulia (Asian marshweed): Family[:] Scrophulariaceae — Limnophila sessiliflora;

                         (M) Arrowleaf False Pickerelweed: Family[:] Pontederiaceae — Monochoria hastate;

                         (N) Heartshaped False Pickerelweed: Family[:] Pontederiaceae — Monochoria vaginalis;

                         (O) Duck-lettuce: Family[:] Hydrocharitaceae — Ottelia alismoides;

                         (P) Wetland Nightshade: Family[:] Solanaceae — Solanum tampicense;

                         (Q) Exotic Bur-reed: Family[:] Sparganiaceae — Sparganium erectum;

                         (R) Brazilian Peppertree: Family[:] Anacardiaceae — Schinus terebinthifolius; and

                         (S) Purple Loosestrife: Family[:] Lythraceae — Lythrum salicaria.

                 (18) [(19)] Harmful or potentially harmful exotic species exclusion zone — That part of the state that is both south of SH 21 and east of I-35, but not including Brazos County.

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

                 (20)[(21)] 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.

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

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

                 (23)[(24)] 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.

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

                 (25) [(26)] 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.

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

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

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

                 (29)[(30)] 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.

                 (30) [(31)] 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 shellfish.

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

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

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

                 (34)[(35)] 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.

                 (35)[(36)] 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.

         §57.112. General Rules.

                 (a) (No change.)

                 (b) Except as provided in §57.113 of this title (relating to Exceptions), it is an offense for any person to:

                         (1) release into the water of this state, import, sell, purchase, transport, propagate, or possess any species, hybrid of a species, subspecies, eggs, seeds, or any part of any species defined as a harmful or potentially harmful exotic fish, shellfish, or aquatic plant; or

                         (2) take or possess a live grass carp from the water of this state where grass carp have been introduced under a permit issued by the department.

                 [(b) Except as provided in §57.113 of this title (relating to Exceptions), it is an offense for any person to release into the water of this state, import, sell, purchase, transport, propagate, or possess any species, hybrid of a species, subspecies, eggs, seeds, or any part of any species defined as a harmful or potentially harmful exotic fish, shellfish, or aquatic plant.]

                 [(c) Except as specifically authorized in writing by the department, it is an offense for anyone to remove a live grass carp from the water of this state where grass carp have been introduced under a permit issued by the department.]

                 (c)[(d)] Violation of any provision of a permit issued under these rules is a violation of these rules.

         §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) – (2) (No change.)

                 (b) A person may possess exotic harmful or potentially harmful fish or shellfish, exclusive of grass carp, without a permit, if the fish or shellfish have been gutted or beheaded, 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 taken[harvested] from public waters that have not been permitted for triploid grass carp, without a permit, if the grass carp have been gutted or beheaded.

                 (d) The holder of a valid triploid grass carp permit for private waters may possess grass carp taken from those waters if the grass carp have been gutted or beheaded.

                 (e) A person may possess grass carp taken from public waters that have been permitted for triploid grass carp, without a permit, if the department has determined that the stocking of grass carp has achieved the management objectives and the permit is no longer in effect. Any grass carp possessed must be gutted or beheaded.

                 (f)[(d)] A person who holds a valid exotic species permit issued by the department may possess, propagate, transport or sell, triploid grass carp, bighead carp, blue tilapia (Oreochromis aureusa), Mozambique tilapia (O. mossambica), Nile tilapia (O. nilotocusa), or hybrids between the three tilapia species, unless otherwise provided by conditions of the permit or these rules.

                 (g)[(e)] An aquaculturist 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 Harmful or Potentially Harmful Exotic Shellfish) and as provided by conditions of the permit and these rules.

                 (h)[(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.

                 (i)[(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).

                 (j)[(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.

                 (k)[(j)] 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, bighead carp, blue tilapia, Mozambique tilapia, Nile tilapia or hybrids of those species 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; or

                         (2) live[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). 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.

                 (l)[(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.

                 (m)[(k)] An aquaculturist 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 and as provided by conditions of the permit and these rules.

                 (n)[(l)] A person operating a mechanical plant harvester or who otherwise physically removes prohibited plants from a public water body in accordance with the provisions 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.

         §57.114. Health Certification of Harmful or Potentially Harmful Exotic Shellfish.

                 (a) All disease-free[disease free] certification of harmful or potentially harmful exotic shellfish must be conducted by a shellfish disease specialist approved by the department.

                 (b) – (c) (No change.)

                 (d) Any person in possession of harmful or potentially harmful exotic shellfish stocks who observes one or more of the manifestations of disease appearing on the clinical analysis checklist provided by the department shall:

                         (1) immediately place the entire facility under quarantine condition, immediately notify the department and immediately request an inspection from a certified inspector; or

                         (2) immediately place the entire facility under quarantine condition, immediately notify the department and immediately submit samples of the affected harmful or potentially harmful exotic shellfish to a department-approved[department approved] shellfish disease specialist for analysis. Results of such analyses shall be forwarded to the department immediately upon receipt.

                 (e) (No change.)

                 (f) No more than 14 days prior to harvesting ponds or discharging any waste into or adjacent to water in the state, the permittee shall:

                         (1) have a certified inspector visit the facility and examine samples of the shellfish from each pond or other structure from which waste will be discharged or from which harmful or potentially harmful exotic shellfish will be harvested or from any other pond or structure that in the opinion of the certified inspector requires further investigation and shall submit the results of the examination to the department on the clinical analysis checklist; or

                         (2) submit samples of the harmful or potentially harmful exotic shellfish from each pond or other structure containing such shellfish to a department-approved [department approved] shellfish disease specialist for analysis no more than 14 days prior to the first discharge or harvest and submit the results of such analyses to the department immediately upon receipt.

                 (g) If the results of an inspection performed under subsection (f)(1) of this section indicate the presence of one or more manifestations of disease, the permittee shall immediately place the entire facility under quarantine condition and immediately submit samples of the harmful or potentially harmful exotic shellfish from the affected portion(s) of the facility to a department-approved[department approved] shellfish disease specialist for analysis. Results of such analyses shall be forwarded to the department immediately upon receipt.

                         (h) – (j) (No change.)

         §57.116. Exotic Species Transport Invoice.

                 (a) (No change.)

                 (b) The exotic species transport invoice shall be provided by the permittee; one copy shall be retained by the permittee for a period of at least one year following shipping date and one copy shall be forwarded to the department[department’s Exotic Species Program Leader].

                 (c) – (d) (No change.)

         §57.117. Exotic Species Permit: Application Requirements.

                 (a) To be considered for an exotic species permit, the applicant shall:

                         (1) meet one or more of the following criteria:

                                  (A) possess a valid aquaculture license;

                                  (B) possess a valid permit from the Texas Commission on Environmental Quality authorizing operation of a wastewater treatment facility;

                                  (C) possess a department-approved [department approved] research proposal involving use of harmful or potentially harmful exotic fish, shellfish or aquatic plants;

                                  (D) operate a public aquarium approved for display of harmful or potentially harmful exotic fish, shellfish or aquatic plants; or

                                  (E) operate a facility approved by the department for the possession and propagation of harmful or potentially harmful exotic aquatic plants;

                         (2) – (5) (No change.)

                 (b) – (d) (No change.)

         §57.118. Exotic Species Permit Issuance.

                 (a) The department may issue an exotic species permit only to:

                         (1) an aquaculturist and only for species listed in §57.113 (f), (g), and (m)[(d), (e), and (k)] of this title (relating to Exceptions);

                         (2) a wastewater treatment facility operator;

                         (3) department-approved[department approved] research programs; or

                         (4) a public aquarium for display purposes only.

                 (b) – (c) (No change.)

         §57.119. Exotic Species Permit: Requirements for Permits.

                 (a) A copy of the exotic species permit shall be:

                         (1) made available for inspection upon request of [authorized] department personnel; and

                         (2) prominently displayed on the premises of the aquaculture facility, private facilities or wastewater treatment facility named in the permit.

                 (b) (No change.)

                 (c) If a permittee discontinues aquaculture, research activities or public aquarium display involving harmful or potentially harmful exotic species or discontinues wastewater treatment, the permittee shall:

                         (1) immediately and lawfully sell, transfer or destroy all remaining individuals of that species in possession; and

                         (2) notify the department[department’s Exotic Species Program Leader] at least 14 days prior to cessation of operation.

                 (d) – (g) (No change.)

                 (h) Upon discovery of release or escapement of harmful or potentially harmful exotic species from any [private] facilities authorized in an exotic species permit, the permittee must immediately halt discharge of all [private facility] effluent from the [aquaculture] facility. If the permittee’s private facility is located within an aquaculture complex, upon discovery of release or escapement of harmful or potentially harmful exotic species, the permittee must immediately halt discharge of all [private] facility effluent.

                 (i) – (j) (No change.)

                 (k) Effluent[All private facility effluent] discharged from a permitted[an aquaculture] facility holding harmful or potentially harmful exotic species must be routed through all devices for prevention of discharge of such species as required in the permit.

                 (l) A permittee must notify the department[department’s Exotic Species Program Leader] in the event of change of ownership of the [aquaculture] facility named in that permittee’s exotic species permit. Notification must be made immediately.

                 (m) (No change.)

         §57.122. Permit Denial Review. An applicant for a permit under this subchapter may request a review of a decision of the department to refuse issuance of a permit or permit renewal.

                 (1) An applicant seeking review of a decision of the department with respect to permit issuance under this subchapter shall first contact the department within 10 working days of being notified by the department of permit denial.

                 (2) The department shall conduct the review and notify the applicant of the results within 10 working days of receiving a request for review. The decision of the review panel shall be final.

                 (3) The request for review shall be presented to a review panel. The review panel shall consist of the following:

                         (A) the Deputy Executive Director for Natural Resources (or his or her designee);

                         (B) the Director of the Coastal Fisheries Division or Inland Fisheries Division, as appropriate; and

                         (C) the Deputy Director of the Coastal Fisheries Division or the designee of the Director of the Inland Fisheries Division.

         §57.125. Triploid Grass Carp Permit; Application, Fee.

                 (a) – (c) (No change.)

                 (d) An applicant for a triploid grass carp permit or a permittee shall allow inspection of their facilities and ponds or lakes by an employee[authorized employees] of the department during normal business hours.

         §57.126. Triploid Grass Carp Permit; Terms of Issuance.

                 (a) The department may issue a triploid grass carp permit upon a finding that:

                         (1) applicant has completed and submitted to the department a triploid grass carp permit application;

                         (2) applicant has remitted to the department all pertinent fees;

                         (3) all information provided in the triploid grass carp permit application is true and correct;

                         (4) applicant has not been finally convicted, within the last year, for violation of the Parks and Wildlife Code, §§66.007, 66.0072, 66.015, or this subchapter;

                         (5) issuance of a triploid grass carp permit and subsequent stocking is consistent with department fisheries or wildlife management activities and objectives;

                         [(6) issuance of a triploid grass carp permit is consistent with the Parks and Wildlife Commission’s environmental policy;]

                         [(7) issuance of a triploid grass carp permit and subsequent stocking does not conflict with specific management objectives of the department; and]

                         (6) [(8)] issuance of a triploid grass carp permit and subsequent stocking will not detrimentally affect threatened or endangered species populations, or their habitat; and

                         (7)[(9)] issuance of a triploid grass carp permit and subsequent stocking will not detrimentally affect coastal wetland and estuarine ecosystems.

                 (b) – (c) (No change.)

         §57.131. Exotic Species Interstate Transport Permit: Application and Issuance.

                 (a) (No change.)

                 (b) To apply for an exotic species interstate transport permit an applicant shall:

                         (1) complete and submit an exotic species interstate transport permit application on a form provided by the department;

                         (2) remit to the department[department’s Exotic Species Program Leader] all applicable fees.

                 (c) – (d) (No change.)

         §57.132. Exotic Species Interstate Transport Permit: Permittee Requirements.

                 (a) – (b) (No change.)

                 (c) Permittee must notify the department[department’s Exotic Species Program Leader] in writing or by facsimile transmission at least 72 hours prior to transport of live harmful or potentially harmful exotic species indicating transport date, intended transportation route, and name and physical address of recipient.

                 (d) While transporting harmful or potentially harmful exotic species within the state of Texas, a holder of an exotic species interstate transport permit must notify the department[department’s Exotic Species Program Leader] in the event of escapement or release of harmful or potentially harmful exotic species within two hours of release.

                 (e) (No change.)

         §57.136. Special Provisions — Water Spinach.

                 (a) – (b) (No change.)

                 (c) Facility requirements. In addition to the provisions of this subchapter applicable to a facility where harmful or potentially exotic fish, shellfish, or aquatic plants are cultured, the following provisions apply to the culture of water spinach:

                         (1) water spinach shall be cultured only in enclosed greenhouses;

                         (2) all water spinach plants on the property where the facility is located must be free of flowers and seeds at all times;

                         (3) propagation shall be by cuttings only; seeds are prohibited;

                         (4) water spinach shall be grown in only in moist soil; aqueous media are prohibited;

                         (5)  a buffer area void of all plants, with the exception of mature woody vegetation, around the perimeter of all areas where water spinach is cultured, handled, packed, processed, stored, shipped, or disposed of. The width of the buffer area shall be at least 10 feet unless the department grants a modification of width based on the location of greenhouses built before 2009[a buffer area of at least 10 feet in width and void of all vegetation must be maintained around the perimeter of all areas where water spinach is cultured, handled, packed, processed, stored, shipped, or disposed of];

                         (6) all handling, packaging, and disposal of water spinach by a permittee must be done at the permitted facility and in such a manner as to prevent dispersal; and

                         (7) all equipment used in the cultivation of water spinach must be cleaned of all vegetation prior to being removed from a facility.

                 (d) – (h) (No change.)

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

         Issued in Austin, Texas, on

         The repeal is proposed under the authority of Parks and Wildlife Code, §66.007 and §66.0072, which require the commission to make rules to carry out those sections.

         The proposed repeal affects Parks and Wildlife Code, Chapter 66.

         §57.122. Appeal.

         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

         The amendments are proposed under Parks and Wildlife Code, §66.015, which requires the department to establish rules and regulations governing the issuance of permits under that section.

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

Subchapter C. Introduction of Fish, Shellfish, and Aquatic Plants.

         §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) – (5) (No change.)

                 (6) Native species — All fish, shellfish, or aquatic plants documented by the department to live, spawn, or reproduce in Texas and whose first documented occurrence in Texas waters was not the result of intentional or unintentional importation by man.  This includes those native species from Texas offshore waters encompassing the Texas Territorial Sea and federal waters of the Exclusive Economic Zone[and whose first documented occurrence in Texas offshore waters was not the result of intentional or unintentional importation by man.]

                 (7) – (11) (No change.)

         §57.253. Permit Application.

                 (a) – (e) (No change.)

                 (f) An applicant for a permit under this subchapter may request a review of a decision of the department to refuse issuance of a permit or permit renewal.

                         (1) An applicant seeking review of a decision of the department with respect to permit issuance under this subchapter shall first contact the department within 10 working days of being notified by the department of permit denial.

                         (2) The department shall conduct the review and notify the applicant of the results within 10 working days of receiving a request for review. The decision of the review panel shall be final.

                         (3) The request for review shall be presented to a review panel. The review panel shall consist of the following:

                                  (A) the Deputy Executive Director for Natural Resources[Operations]  (or his or her designee);

                                  (B) the Director of the Coastal Fisheries Division; and

                                  (C) the Deputy Director of the Coastal Fisheries Division.

         §57.257. Reporting and Recordkeeping

                 (a) – (c) (No change.)

                 (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].

         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

         The new section is proposed under Parks and Wildlife Code, §66.020, which authorizes the commission to regulate the possession and importation of protected finfish.

         The proposed new section affects Parks and Wildlife Code, §66.020.

Subchapter D. Commercially Protected Finfish.

         §57.371. Applicability: Commercially Protected Finfish.

                 (a) The finfish in this subsection may be imported only by the holder of a finfish import license. To be lawfully imported, sold or purchased in Texas bass of the genus Micropterus, crappie, flathead catfish, red drum, striped bass, white bass or a hybrid of any of these fish must be farm raised and fed a prepared feed containing 20% or more of plant protein or grain by-products as a primary food source.

                 (b) Except as provided in Parks and Wildlife Code, §66.020, it is unlawful for any person to buy, offer to buy, sell or offer to sell, possess for the purpose of sale, transport or ship for the purpose of sale, barter, or exchange the species listed in this subsection.

                         (1) Bass of the genus Micropterus;

                         (2) Bass, striped;

                         (3) Bass, white;

                         (4) Bass,yellow;

                         (5) Catfish, flathead;

                         (6) Crappie, black;

                         (7) Crappie, white;

                         (8) Drum, red;

                         (9) Grouper, goliath (formerly called jewfish);

                         (10) Marlin, blue;

                         (11) Marlin, white

                         (12) Muskellunge;

                         (13) Pike, northern;

                         (14) Sailfish;

                         (15) Sauger;

                         (16) Seatrout, spotted;

                         (17) Snook;

                         (18) Spearfish, longbill;

                         (19) Tarpon;

                         (20) Walleye; and

                         (21) Hybrids of any of these fish.

         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

Subchapter E. Permits to Sell Nongame Fish Taken From Public Fresh Water

         The amendments are proposed under Parks and Wildlife, §67.004, which requires the commission by regulation to establish any limits on the taking, possession, propagation, transportation, importation, exportation, sale, or offering for sale of nongame fish or wildlife that the department considers necessary to manage the species, and §67.0041, which authorizes the department to issue permits for the taking, possession, propagation, transportation, sale, importation, or exportation of a nongame species of fish or wildlife if necessary to properly manage that species.

         The proposed amendments affect Parks and Wildlife Code, Chapter 67.

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

                 (1) (No change.)

                 (2) Game fish — As defined in §57.971(14)(A)[§65.3(23)] of this title (relating to Definitions).

                 (3) (No change.)

                 (4) Public freshwater — All of the state rivers, streams, creeks, bayous, reservoirs, lakes, and portions of those freshwaters not defined as coastal waters in §57.971 [§65.3] of this title (relating to Definitions[Statewide Hunting and Fishing Proclamation]), where public access is available without discrimination.

         §57.378 Applicability: Nongame Fishes.  A permit to sell the following species of nongame fish taken from public fresh water may be issued if the department determines that the sale is necessary to properly manage the species

Figure: 31 TAC §57.378

Common Name

Scientific Name

Gars

Lepisosteus spp. and Atractosteus spp.

Bowfin

Amia calva

Shads

Dorosoma spp.

Common carp

Cyprinus carpio

Goldfish

Carassius auratus

Grass carp

Ctenopharyngodon idella

Bighead carp

 Hypophthalmichthys[Aristichthys] nobilis

Suckers (buffalo)

Ictiobus spp.

River carpsucker

Carpiodes carpio

Bullhead catfishes

Ameiurus spp.

Freshwater drum

Aplodinotus grunniens

Tilapia

Oreochromis [Tilapia] spp.

Rio Grande cichlid

Cichlasoma cyanoguttatum

Silversides

Menidia beryllina and Membras martinica

Mullet

Mugil spp.

Minnows

Campostoma spp., Cyprinella spp., Hybognathus spp. Macrhybosis spp., Notemigonus spp., Notropis spp., Opsopoedus sp., Phenacobius sp., Pimephales spp., [Platygobio gracilis], Rhinichthys sp., and Semotilus spp.

Note: Hybrids among species listed above may also be sold.

         §57.380. Permit Application.

                 (a) An applicant for a permit to sell nongame fish taken from public fresh waters of this state shall submit a completed [notarized] application to the department on a form supplied by the department.

                 (b) (No change.)

         §57.381. Permit Specifications and Requirements.

                 (a) A permit issued by the department to sell nongame fish taken from public fresh water shall specify:

                         (1) the name, telephone number and physical address of the permittee;

                         (2) the water body  [location and time] where the activity is permitted;

                         (3) the nongame fish species for which take and sale is allowed; and

                         [(4) number of nongame fish for which take and sale is allowed;]

                         (4)[(5)] the types and number of devices which may be used to take nongame fish.[; and]

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

         §57.382. Harvest and Sales Reports. Annual harvest and sales reports must be submitted by the permittee to the department on forms provided by the department.

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

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

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

         Issued in Austin, Texas, on

Subchapter F. Collection of Broodfish From Texas Waters

         The amendments and new section  are proposed under Parks and Wildlife Code, §43.552, which requires the commission to prescribe by rule the requirements and conditions for issuance of a permit authorized under Parks and Wildlife Code, Subchapter P .

         The proposed amendments and new section affect Parks and Wildlife Code, Subchapter P.

         §57.391. Definitions. The following words and terms, when used in these rules, shall have the following meanings, unless the context clearly indicates otherwise.

                 (1) – (11) (No change.)

                 (12) Recreational Fishing[Sportfishing] — The act of using legal means or methods to take or to attempt to take aquatic life for noncommercial purposes from the public waters of this state.

         §57.392. General Rules.

                 (a) While collecting broodfish, an aquaculturist or designated agent must be in possession of a valid recreational fishing[sportfishing] license in all public waters, a saltwater fishing stamp in public salt water, and broodfish permit issued by the department.

                 (b) (No change.)

         §57.394. Broodfish Collection; Notification. The department’s  nearest coastal or inland regional fisheries office[aquaculture coordinator] and [nearest] law enforcement office must be notified no less than 48 hours prior to commencement of broodfish collection.

         §57.395. Broodfish Permits; Fees, Terms of Issuance.

                 (a) – (d) (No change.)

                 (e) To be considered for a broodfish permit, the applicant shall:

                         (1) complete and submit a broodfish permit application on a form provided by the department; and

                         (2) provide a copy of the applicant’s aquaculture license issued by the Texas Department of Agriculture with the application.

                         [(3) submit the amount of $25 to the department.]

                 (f) – (g) (No change.)

         §57.397. Broodfish Permit; Revocation. The department may revoke a broodfish permit upon finding that a permittee or his agent:

                 (1) does not hold a valid aquaculture (fish farming) license issued by the Texas Department of Agriculture;

                 (2) does not hold a valid  recreational fishing [sportfishing] license while collecting in all public waters of this state [in addition to a saltwater stamp in public salt water];

                 (3) – (6) (No change.)

         §57.399. Permit Denial Review. An applicant for a permit under this subchapter may request a review of a decision of the department to refuse issuance of a permit or permit renewal.

                 (1) An applicant seeking review of a decision of the department with respect to permit issuance under this subchapter shall first contact the department within 10 working days of being notified by the department of permit denial.

                 (2) The department shall conduct the review and notify the applicant of the results within 10 working days of receiving a request for review. The decision of the review panel shall be final.

                 (3) The request for review shall be presented to a review panel. The review panel shall consist of the following:

                         (A) the Deputy Executive Director for Natural Resources (or his or her designee);

                         (B) the Director of the Coastal Fisheries Division; and

                         (C) the Deputy Director of the Coastal Fisheries Division.

         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

         The repeal is proposed under Parks and Wildlife Code, §43.552, which requires the commission to prescribe by rule the requirements and conditions for issuance of a permit authorized under Parks and Wildlife Code, Subchapter P .

         The proposed repeal affects Parks and Wildlife Code, Subchapter P.

         §57.399. Appeal.

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

         Issued in Austin, Texas, on

*n

Subchapter H. Fishery Management Plans

         The amendment is proposed under Parks and Wildlife Code, §76.301, which requires a proclamation issued under Parks and Wildlife Code, §76.301 to contain findings by the commission that support the need for the proclamation, and §77.077, which requires a proclamation issued under Parks and Wildlife Code, §77.077 to contain findings by the commission that support the need for the proclamation.

         The proposed amendment affects Parks and Wildlife Code, Chapters 76 and 77.

         §57.691. Fishery Management Plans.

                 (a) The Texas Artificial Reef Fishery Management Plan and source document are incorporated by reference.

                 (b) The Texas Blue Crab Fishery Management Plan is incorporated by reference.

                  (c) The Oyster Fishery Management Plan and the Economic Impact Analysis are adopted by reference.

                  (d) The Shrimp Fishery Management Plan and the Economic Impact Analysis are adopted by reference.

                 (e)[(c)] Copies of these plans may be obtained at the Texas Parks and Wildlife Department Headquarters at 4200 Smith School Road, Austin, Texas 78744.

         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

Subchapter K. Scientific Areas

         The repeal is proposed under Parks and Wildlife Code, Chapter 13, Subchapter B, which authorizes the commission to adopt rules governing activities in state scientific areas, and Parks and Wildlife Code, §§81.501-81.502, which authorize the Commission to create state scientific areas.

         The proposed repeal affects Parks and Wildlife Code, Chapters 13 and 81.

         §57.920. Nine-Mile Hole State Scientific Area.

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

         Issued in Austin, Texas, on

Subchapter L. Aquatic Vegetation Management

         The amendments are proposed under Parks and Wildlife Code, §11.082, which requires the department to develop and by rule adopt a state aquatic vegetation management plan following the generally accepted principles of integrated pest management.

         The proposed amendments affect Parks and Wildlife Code, Chapter 11.

         §57.930. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. All other words and terms in this subchapter shall have the meanings assigned in the Texas Parks and Wildlife Code.

                 (1) – (7) (No change.)

                  (8) NPDES — National Pollutant Discharge Elimination System. The NPDES Permit Program is administered by EPA under the Clean Water Act.

                 (9)[(8)] Nuisance aquatic vegetation — any non-native or native vascular plant species that is determined, in consideration of TPWD guidance, to have the potential to substantially interfere with the uses of a public body of surface water.

                 (10)[(9)] Public body of surface water — any body of surface water that is not used exclusively for an agricultural purpose. The term does not include impounded water on private property or water being transported in a canal.

                 (11)[(10)] Public drinking water provider — any person who owns or operates a system for the provision to the public of water for human consumption through pipes or other constructed conveyances, if such system has at least fifteen service connections or regularly serves at least twenty-five individuals at least 60 days out of the year.

                 (12)[(11)] State plan — the state aquatic vegetation management plan authorized by Parks and Wildlife Code, §11.082, and described in §57.931 of this title (relating to State Aquatic Vegetation Plan Applicability) and §57.932 of this title (relating to State Aquatic Vegetation Plan).

                 (13)[(12)] TCEQ — Texas Commission on Environmental Quality.

                 (14)[(13)] TDA — the Texas Department of Agriculture.

                 (15)[(14)] TPWD — the Texas Parks and Wildlife Department.

                 (16)[(15)] Treatment proposal — a submission to TPWD on a TPWD-approved form that describes intended measures to control nuisance aquatic vegetation.

                 (17)[(16)] Water district — a conservation and reclamation district or an authority created under authority of Section 52(b)(1) or (2), Article III, or Section 59, Article XVI, Texas Constitution, that has jurisdiction over a public body of surface water. The term does not include a navigation district or a port authority.

         §57.932. State Aquatic Vegetation Plan.

                 (a) Requirements Applicable to All Measures to Control Nuisance Aquatic Vegetation.

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

                         (3) Modification of Guidance. TPWD will publish notice in the Texas Register and seek input from interested parties when it proposes major modifications to [modify] the guidance document such as changes in procedures and notification[TPWD will also mail notice to persons who so request]. Notice shall be provided at least 60 days prior to the effective date of any changes to the guidance document. The notice shall describe the proposed modifications and the reasons for the modifications, and how comments on the proposed modifications may be made to TPWD. Minor modifications such as changes of address, typographical corrections, and addition of species or approved herbicide may be published on the TPWD website without submission to the Texas Register.

                         (4) Review by TPWD. Prior to undertaking any measures to control nuisance aquatic vegetation in a public body of surface water, a person operating under the state plan  (exclusive of TPWD personnel or its contractors) shall provide to TPWD a treatment proposal, on a form included in the guidance document, no later than the 14th day before the measures are to begin. TPWD will review and may disapprove or amend any treatment proposal and will respond no later than the day before the proposed control measures are to begin. Where appropriate, TPWD will provide technical advice and recommendations regarding prevention of nuisance aquatic vegetation problems. The person submitting the treatment proposal shall have the burden of demonstrating compliance with the state plan. Where a local plan governs, treatment proposals are not subject to TPWD review, approval, and amendment, but are to be submitted to TPWD (pursuant to §57.934(b) of this title, relating to Local Aquatic Vegetation Plan) for informational purposes.

                 (b) Additional Requirements Applicable to the Use of Aquatic Herbicides to Control Nuisance Aquatic Vegetation.

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

                          (3) In Tier I or emergency situations TPWD and/or its contractors may conduct herbicide treatment with only 24 hours notice to controlling authorities and persons on the notification list, provided the treatment is at least two river or lake miles away from an active potable water intake.

                         (4)[(3)] An individual who is not a licensed applicator may not apply aquatic herbicides unless the governing entity affirmatively finds, after receiving the proper notice as provided in subsection (b)(2) of this section, that the application will be consistent with the state plan. The governing entity shall respond to the notice given by an individual who is not a licensed applicator no later than the day before the date the application is scheduled to occur.

                         (5)[(4)] An individual who is a licensed applicator may apply aquatic herbicide after notice consistent with subsection (b)(2) of this section if the governing entity finds that the application would be consistent with the state plan or does not disapprove the application no later than the day before the application is to occur.

                         (6)[(5)] After receiving notice of a proposed application of aquatic herbicide, a governing entity, or TPWD in the absence of such an entity, shall:

                                  (A) provide the individual proposing the application with the state plan;

                                  (B) notify the individual in writing that it is a violation of state law to apply aquatic herbicides in a public body of water in a manner inconsistent with the state plan; and

                                  (C) determine whether the proposed application is consistent with the state plan.

                         (7)[(6)] The governing entity shall prohibit the proposed application of aquatic herbicide if the governing entity finds that the proposed application is inconsistent with the state plan[, or, if the proposed application is consistent with the state plan, so notify the person].

                         (8)[(7)] State money shall not be used to pay for treatment of a public body of surface water with an aquatic herbicide unless the application of the herbicide is performed by an applicator licensed for aquatic herbicide application by the TDA.

                         (9)[(8)] Any application of aquatic herbicide shall comply with label rates approved by the EPA.

                         (10) Any application of aquatic herbicide shall comply with applicable federal NPDES requirements under the Clean Water Act.

         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


Commission Agenda Item No. 2
Exhibit B

LEGISLATIVE RULES REVIEW

CHAPTER 58. OYSTERS, SHRIMP, AND FINFISH

1. Introduction.

         The Texas Parks and Wildlife Department proposes amendments to §§58.10, 58.22, 58.23, 58.30, 58.40, 58.50, 58.60, 58.160, 58.202, and 58.301, concerning Oysters, Shrimp, and Finfish. The proposed amendments are a result of the department’s review of its regulations under the provisions of Government Code, §2001.039, which requires a state agency to review each of its regulations no less frequently than every four years and to re-adopt, adopt with changes, or repeal each rule as a result of the review.

Subchapter A. Statewide Oyster Fishery Proclamation

         The proposed amendment to §58.10, concerning Application, would correct a spelling error.

         The proposed amendment to §58.22, concerning Commercial Fishing, would add new subsection (c) to repeat the season dates and lawful hours for oystering, which are established under §58.21, concerning Taking or Attempting to Take Oysters from Public Oyster Beds: General Rules.

         The proposed amendment to §58.23, concerning Non-commercial (Recreational) Fishing, would add new subsection (c) to repeat the season dates and lawful hours for oystering, which are established under §58.21, concerning Taking or Attempting to Take Oysters from Public Oyster Beds: General Rules.

         The proposed amendment to §58.30, concerning Private Oyster Leases, would alter subsection (b)(3) to update the name of the state agency program responsible for shellfish sanitation, update subsection (d)(2) to reflect the fact that Parks and Wildlife Code, §76.036, allows "other permanent markers" to be used in lieu of buoys for purposes of marking the boundaries of a private oyster lease, and remove subsection (d)(6)(C) because all fee values are contained in §53.15(h)(6).

         The proposed amendment to §58.40, concerning Oyster Transplant Permits, would insert language in subsection (b)(2) and (3) to clarify that the time span established for submitting transplant application is to be measured in business days.

         The proposed amendment to §58.50, concerning Oyster Harvest Permits, would insert language in subsection (b)(1) to clarify that the time span established for submitting oyster harvest applications is to be measured in business days and alter subsection (b)(3) to update the name of a state agency.

         The proposed amendment to §58.60, concerning Transplant or Harvest Permit Cancellation, would alter subsection (a)(2) to update the name of a state agency.

Subchapter B. Statewide Shrimp Fishery Proclamation

         The proposed amendment to §58.160, concerning Taking or Attempting to Take Shrimp (Shrimping) — General Rules, would remove the word "of" from subsection (e)(4)(B)(ii)(III) for purposes of grammatical correctness.

Subchapter C. Statewide Crab Fishery Proclamation

         The proposed amendment to §58.202, concerning Definitions, would update the scientific names of crab families in paragraph (2) to reflect changes in the scientific taxonomy.

Subchapter D. Finfish Fishery Proclamation

         The proposed amendment to §58.301, concerning Finfish License Management Program, would retitle the section to make a more intuitive correlation to the contents of the section.

2. Fiscal Note.

         Paul Hammerschmidt, Special Projects Director, has determined that for each year of the first five years that the rules as proposed are in effect, there will be no fiscal implications to state and local governments as a result of enforcing or administering the rules.

3. Public Benefit/Cost Note.

         Mr. Hammerschmidt also has determined that for each year 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 clearer, more easily understood rules that enhance compliance and enforcement.

         (B) There will be no adverse economic effect on persons required to comply with the rules as proposed.

         Under the provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect affect on small businesses and micro-businesses. As required by Government Code, §2006.002(g), the Office of the Attorney General has prepared guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small businesses. Those guidelines state that an agency need only consider a proposed rule’s "direct adverse economic impacts" to small businesses and micro-businesses to determine if any further analysis is required. For that purpose, the department considers "direct economic impact" to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services. Since the proposed rules make nonsubstantive changes, the department has determined that the proposed amendments will not impose any direct adverse economic effects on small businesses or micro-businesses. Accordingly, the department has not prepared a regulatory flexibility analysis under Government Code, Chapter 2006.

         (C) The department has not drafted a local employment impact statement under the Administrative Procedure Act, 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 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 rule may be submitted to Paul Hammerschmidt, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4650 (e-mail: paul.hammerschidt@tpwd.state.tx.us).

5. Statutory Authority.

         The amendments are proposed under the authority of Parks and Wildlife Code, §76.301, which authorizes the commission to regulate the time, places, conditions, and means and manners of taking oysters.

         The proposed amendments affect Parks and Wildlife Code, Chapter 76.

6. Text.

         §58.10. Application.

                 (a) This subchapter applies to the taking, attempting to take, possession, purchase, and sale of oyster resources in the salt waters of Texas. It carries out the commission’s [Commmission’s] rulemaking authority granted by the legislature in Parks and Wildlife Code, Chapter 76. The law covering the taking, attempting to take, possession, purchase, and sale of oyster resources in the salt waters of Texas is set forth in both Parks and Wildlife Code, Chapter 76 and this subchapter whereby the provisions of this subchapter prevail over any conflicting provision of Parks and Wildlife Code, Chapter 76 to the extent of the conflict as set forth in Parks and Wildlife Code, §76.301.

                 (b) (No change.)

         §58.22.Commercial Fishing.

                 (a) — (b) (No change.)

                 (c) Seasons and Times.

                         (1) The open season extends from November 1 of one year through April 30 of the following year.

                         (2) Legal oystering hours — sunrise to 3:30 p.m.

                 (d)[(c)] Possession Limits. It is unlawful to take in one day, for pay or the purpose of sale, barter, or exchange, or any other commercial purpose, or to have on board any licensed commercial oyster boat more than:

                         (1) 50 sacks of culled oysters of legal size; or

                         (2) 6 sacks of unculled oysters while on the reef.

                  (e)[(d)] Harvester/Shell Recovery Tag. A person who harvests oysters from Texas waters for commercial purposes shall, immediately upon harvest, attach a properly executed harvester/shell recovery tag to the outside of the sack in which the oysters are placed.

                          (1) A Harvester/Shell Recovery Tag is properly executed when all required information has been entered on the tag.

                         (2) The tag must be placed on the outside of the sack immediately upon filling, prior to unloading, and remain until the sack is empty or retagged and thereafter kept on file for 90 days.

                         (3) The appropriate harvester/shell recovery tag (green or white) must be affixed to the sack regardless of the season or whether the requirements of 25 TAC §241.57 (relating to Molluscan Shellfish Harvesting and Handling) apply.

                  (f)[(e)] Reporting Requirements. A dealer who purchases or receives oysters directly from any person other than a licensed dealer must file a report with the department each month as prescribed under Parks and Wildlife Code, §66.019(c).

         §58.23. Non-commercial (Recreational) Fishing.

                 (a) — (b) (No change.)

                  (c) Seasons and Times.

                         (1) The open season extends from November 1 of one year through April 30 of the following year.

                         (2) Legal oystering hours — sunrise to 3:30 p.m.

                 (d)  [(c)] Possession Limit. It is unlawful for a person to take in one day or possess, more than two sacks of legal sized oysters.

                  (e)  [(d)] Prohibition of Sale. It is unlawful to sell oysters taken without a valid commercial oyster fishing license.

         §58.30.Private Oyster Leases.

                 (a) (No change.)

                 (b) Application For Oyster Lease.

                         (1) — (2) (No change.)

                         (3) Each application shall contain:

                                  (A) — (C) (No change.)

                                  (D) signed letters each from the U.S. Army Corps of Engineers, General Land Office, and the Seafood and Aquatic Life Group [Safety Division ] of the Texas Department of State Health Services indicating approval for the proposed lease site.

                         (4) (No change.)

                 (c) (No change.)

                 (d) Approved Lease Procedures for Applicant.

                         (1) (No change.)

                         (2) The applicant shall mark the boundaries of the lease with buoys or other permanent markers at the time of the final survey and maintain buoys or other permanent markers until lease termination. Supplemental markers may be required along the lease boundaries if one corner marker is not clearly visible from another corner marker.

                                  (A) All marker buoys or other permanent markers must be:

                                          (i) — (iii) (No change.)

                                          (iv) marked with the lease number (Buoys or other permanent markers common to two or more leases must be marked with all lease numbers);

                                          (v) — (vi) (No change.)

                                  (B) (No change.)

                                  (C) If replacement of buoys or other permanent markers is necessary, original latitude and longitude coordinates of the final survey must be used to relocate markers.

                         (3) — (5) (No change.)

                         (6) Lease Renewal.

                                  (A) — (B) (No change.)

                                  [(C) A payment of $200 will be due upon renewal of the lease as prescribed in Parks and Wildlife Code, §76.018.]

                                   (C)[(D)] The holder of a renewed certificate of location shall be responsible for having the lease resurveyed by a registered surveyor who will provide the department with survey notes and a plat of the lease showing:

                                          (i) the location of the lease in relation to state land tract boundaries; and

                                          (ii) latitude and longitude coordinates for all lease markers.

                          (D)[(E)] The survey will be conducted and provided to the department within one year of the lease renewal;

                         (7) — (8) (No change.)

         §58.40. Oyster Transplant Permits.

                 (a) (No change.)

                 (b) Oyster Transplant Application.

                         (1) (No change.)

                         (2) Written applications for transplant permits must be received by the department two business days prior to the beginning of transplanting operations.

                         (3) Written applications for transplant permit amendments must be received by the department at least two business days prior to the desired effective date of the amendment.

                         (4) — (9) (No change.)

                 (c) (No change.)

                 (d) Transplant Restrictions.

                         (1) — (2) (No change.)

                         (3) Oysters may not normally be taken for the purpose of transplanting from the following areas:

                                  (A) — (C) (No change.)

                                  (D) areas declared to be unsuitable for transplanting by the Texas Department of State Health Services because of the presence of persistent chemicals or diseases that might be dangerous to public health.

                         (4) — (9) (No change.)

                 (e) (No change.)

         §58.50. Oyster Harvest Permits.

                 (a) (No change.)

                 (b) Oyster Harvest Application.

                         (1) Written application for a harvest permit must be received two business days prior to the requested harvest dates and include the following:

                                  (A) — (D) (No change.)

                         (2) (No change.)

                         (3) A harvest permit will not be valid until 15 days after expiration of a transplant permit for the same lease or leases adjacent thereto and with approval of the Texas Department of State Health Services.

                         (4) (No change.)

                 (c) — (e) (No change.)

         §58.60. Transplant or Harvest Permit Cancellation.

                 (a) Violations of the transplanting or harvesting procedures include, but are not limited to, the following:

                         (1) (No change.)

                         (2) harvesting oysters from restricted or prohibited areas as designated by the Texas Department of State Health Services;

                         (3) — (10) (No change.)

                 (b) — (e) (No change.)

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

         Issued in Austin, Texas, on

Subchapter B. Statewide Shrimp Fishery Proclamation

         The amendments are proposed under the authority of Parks and Wildlife Code, §77.007, which authorizes the commission to regulate the time, places, conditions, and means and manners of catching shrimp.

         The proposed amendments affect Parks and Wildlife Code, Chapter 77.

         §58.160. Taking or Attempting to Take Shrimp (Shrimping) — General Rules.

                 (a) — (d) (No change.)

                 (e) Bycatch Reduction Device (BRD) requirements.

                         (1) — (3) (No change.)

                         (4) Approved BRDs:

                                  (A) (No change.)

                                  (B) In inside waters:

                                          (i) (No change.)

                                          (ii) An extended funnel device similar to "Jones/Davis", "large mesh" constructed and installed as follows:

                                                   (I) — (II) (No change.)

                                                   (III) Funnel. The funnel is constructed [of] with a mesh size of 6-7/8 inches over 5 stretched meshes, No. 18 depth-stretched and heat-set polyethylene webbing. The circumference of the leading edge is 120 meshes and the back edge is 78 meshes. The short side of the funnel is 30 to 32 inches long and the opposite side of the funnel extends an additional 20 to 22 inches. The circumference of the leading edge of the funnel is attached to the forward small-mesh section three meshes forward of the large-mesh escape section and is evenly sewn, mesh for mesh, to the small-mesh section. The after edge of the funnel is attached to the after small-mesh section at its top and bottom eight meshes back from the large-mesh escape panel. Seven meshes of the top and seven meshes of the bottom of the funnel are attached to eight meshes at the top and bottom of the small-mesh section, such eight meshes being located immediately adjacent to the top and bottom centers of the small-mesh section on the side of the funnel’s extended side. The extended side of the funnel is sewn at its top and bottom to the top and bottom of the small-mesh section, extending at an angle toward the top and bottom centers of the small-mesh section.

                                                   (IV) — (V) (No change.)

                                          (iii) (No change.)

                 (f) — (g) (No change.)

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

         Issued in Austin, Texas, on

Subchapter C. Statewide Crab Fishery Proclamation

         The amendments are proposed under the authority of Parks and Wildlife Code, §78.006, which authorizes the commission to regulate the time, places, conditions, and means and manners of taking clams.

         The proposed amendments affect Parks and Wildlife Code, Chapter 78.

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

                 (1) (No change.)

                 (2) Crab — All species in the families Portunidae and Menippidae [Xanthidae].

                 (3) — (4) (No change.)

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

Subchapter D. Finfish Fishery Proclamation

         The amendment is proposed under the authority of Parks and Wildlife Code, §47.071, which requires department to implement a finfish license management program.

         The proposed amendment affects Parks and Wildlife Code, Chapter 47.

         Issued in Austin, Texas, on

         §58.301. Finfish License Management Program [Delegation of Authority].

Delegation of Authority.  To the fullest extent allowed by law, the commission delegates power and authority to the executive director to administer the Finfish License Management Program.

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

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

         Issued in Austin, Texas, on


Commission Agenda Item No. 2
Exhibit C

LEGISLATIVE RULES REVIEW

CHAPTER 65. WILDLIFE

1. Introduction.

         The Texas Parks and Wildlife Department proposes amendments to §§65.107, 65.131, and 65.375, concerning Chapter 65, Wildlife. The proposed amendments are a result of the department’s review of its regulations under the provisions of Government Code, §2001.039, which requires a state agency to review each of its regulations no less frequently than every four years and to re-adopt, adopt with changes, or repeal each rule as a result of the review.

Subchapter C. Permits for Trapping, Transporting, and Transplanting Game Animals and Game Birds

         The proposed amendment to §§65.107, concerning Permit Application and Processing, would alter subsection (b)(3)(A) to update the title of an agency manager.

Subchapter D. Deer Management Permit (DMP)

         The proposed amendment to §§65.131, concerning Deer Management Permit (DMP), would alter subsection (d)(3)(A) to update the title of an agency manager.

Subchapter Q. Statewide Fur-bearing Animal Proclamation

         The proposed amendment to §65.375, concerning Open Seasons; Means and Methods, would remove the phrase “conibear-style” and replace it with the phrase “body grip.” The term “conibear” is trademarked and must be replaced with a generic descriptor.

2. Fiscal Note.

         Matt Wagner, Wildlife Division Deputy Director, 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 and local governments as a result of enforcing or administering the rules.

3. Public Benefit/Cost Note.

         Mr. Wagner 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 clearer, more accurate rules.

         (B) There will be no adverse economic effect on persons required to comply with the rules as proposed.

         (C) Under the provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect affect on small businesses and micro-businesses. As required by Government Code, §2006.002(g), the Office of the Attorney General has prepared guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small businesses. Those guidelines state that an agency need only consider a proposed rule’s “direct adverse economic impacts” to small businesses and micro-businesses to determine if any further analysis is required. For that purpose, the department considers “direct economic impact” to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services. Since the proposed rules make no nonsubstantive changes, the department has determined that the proposed amendments will not impose any direct adverse economic effects on small businesses or microbusinesses. Accordingly, the department has not prepared a regulatory flexibility analysis under Government Code, Chapter 2006.

         (D) 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.

         (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 proposed rule may be submitted to Matt Wagner, Texas Parks and Wildlife Department 4200 Smith School Road, Austin, Texas, 78744; (512) 389-4778 (e-mail: matt.wagner@tpwd.state.tx.us).

5. Statutory Authority.

         The amendment is proposed under the authority of Parks and Wildlife Code, §43.061(g) which requires the commission to adopt rules for the content of wildlife stocking plans, certification of wildlife trappers, and the trapping, transporting, and transplanting of game animals and game birds under this subchapter.

         The proposed amendment affects Parks and Wildlife Code, Chapter 43, Subchapter E.

6. Rule Text.

Subchapter C. Permits for Trapping, Transporting, and Transplanting Game Animals and Game Birds

         §65.107. Permit Application and Processing.

                 (a) (No change.)

                 (b) Review. An applicant for a permit under this subchapter may request a review of a decision of the department to deny issuance or delay processing of a permit.

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

                         (3) The request for review shall be presented to a review panel. The review panel shall consist of the following:

                                  (A) the Deputy Executive Director for Natural Resources[Operations], or his or her designee;

                                  (B) the Director of the Wildlife Division; and

                                  (C) the Big Game Program Director.

                         (4) – (5) (No change.)

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

         Issued in Austin, Texas, on

Subchapter D. Deer Management Permit (DMP)

         The amendment is proposed under the authority of Parks and Wildlife Code, §43.603, which stipulates that a permit issued under Parks and Wildlife Code, Chapter 43, Subchapter R, is subject to conditions established by the commission.

         The proposed amendment affects Parks and Wildlife Code, Chapter 43, Subchapter R.

         §65.131. Deer Management Permit (DMP).

                 (a) – (c) (No change.)

                 (d) An applicant for a permit under this subchapter may request that a decision by the department to deny issuance or delay processing of a permit or permit renewal be reviewed.                           (1) – (2) (No change.)

                         (3) The request for review shall be presented to a review panel. The review panel shall consist of the following:

                                  (A) the Deputy Executive Director for Natural Resources[Operations] (or his or her designee);

                                  (B) – (C) (No change.)

                         (4) – (5) (No change.)

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

         Issued in Austin, Texas, on

Subchapter Q. Statewide Fur-bearing Animal Proclamation

         The amendment is proposed under the authority of Parks and Wildlife Code, §71.002, which authorizes the commission to provide for the means, methods, and manner that are, and places in which it is, lawful to take or possess fur-bearing animals, pelts, or carcasses.

         The proposed amendment affects Parks and Wildlife Code, Chapter 71.

         §65.375. Open Seasons; Means and Methods.

                 (a) — (b) (No change.)

                 (c) Means and methods.

                         (1) Only the following means and methods are legal for taking fur-bearing animals:

                                  (A) (No change.)

                                  (B) steel foothold and body-gripping[conibear-style] traps;

                                  (C) – (I) (No change.)

                         (2) Exceptions. No person may:

                                  (A) take fur-bearing animals with foothold or body-gripping[conibear-style] traps, except during the open season for commercial harvest or as provided in §65.381 of this title (relating to Nuisance Fur-bearing Animals);

                                  (B) set foothold or body-gripping[conibear-style] traps within 400 yards of any school;

                                  (C) (No change.)

                                  (D) use a body-gripping[conibear-style] trap with a diagonal opening dimension greater than ten inches set on land or in less than six inches of water;

                                  (E) use snares, steel foothold traps, body-gripping[conibear-style] traps, and live or box traps unless each trap is examined at least every 36 hours; or

                                  (F) (No change.)

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

         Issued in Austin, Texas, on



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