PART 2. TEXAS PARKS AND WILDLIFE DEPARTMENT
The Texas Parks and Wildlife Commission in a duly noticed meeting on November 7, 2024, adopted an amendment to 31 TAC §56.7, concerning Permits and Licenses Affected, without change to the proposed text as published in the October 4, 2024, issue of the Texas Register (49 TexReg 8056). The rule will not be republished.
The amendment adds cultured oyster mariculture permits (COM) issued by the department under 31 TAC Chapter 58, Subchapter E, to the list of permits and licenses to which the provisions of Chapter 56 apply.
In 2022, the department promulgated Chapter 56 to comply with recommendations of the Texas Sunset Advisory Commission to establish a uniform process to govern department decisions to refuse issuance or renewal of non-recreational licenses and permits for which such processes are not prescribed by statute. The Sunset Commission also recommended a similar process for agency decisions to suspend or revoke such licenses and permits.
In another rulemaking published elsewhere in this issue regarding COM rules, the department adopts the repeal of §58.359, concerning Agency Decision to Refuse to Issue or Renew Permit; Review of Agency Decision. The department has determined that the COM permits are a type of permit to which the Texas Sunset Advisory Commission recommendation applies, and the rule as adopted adds COM permits to the list of permits to which the chapter applies.
The department received no comments opposing adoption of the rule as proposed.
The amendment is adopted under Parks and Wildlife Code, §12.001, which authorizes the department to collect and enforce the payment of all taxes, licenses, fines, and forfeitures due to the department; §12.508, which authorizes the department to refuse to issue or transfer an original or renewal license, permit, or tag if the applicant or transferee has been finally convicted of a violation under the Parks and Wildlife Code or rule adopted or a proclamation issued under the Parks and Wildlife Code; and Chapter 75, which requires the commission to adopt rules to establish a program governing cultivated ouster mariculture, which may establish requirements for the taking, possession, transport, movement, and sale of cultivated oysters; the taking, possession, transport, and movement of broodstock oysters; fees and conditions for use of public resources, including broodstock oysters and public water, and any other matter necessary implement and administer Parks and Wildlife Code, Chapter 75; and Parks and Wildlife Code, §75.0101, which requires the commission to adopt rules to establish requirements for permit applications and application fees; criteria for the approval, transfer, revocation, and suspension of permits; and procedures for hearings related to a permit.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January 10, 2025.
TRD-202500067
James Murphy
General Counsel
Texas Parks and Wildlife Department
Effective date: January 30, 2025
Proposal publication date: October 4, 2024
For further information, please call: (512) 389-4775
SUBCHAPTER A. STATEWIDE OYSTER FISHERY PROCLAMATION
The Texas Parks and Wildlife Commission in a duly noticed meeting on November 7, 2024, adopted an amendment to 31 TAC §58.21, concerning Taking or Attempting to Take Oysters from Public Oyster Beds: General Rules, without changes to the proposed text as published in the October 4, 2024, issue of the Texas Register (49 TexReg 8057). The rule will not be republished.
Under Parks and Wildlife Code, §76.115, the department may close an area to the taking of oysters when the commission finds that the area is being overworked or damaged or the area is to be reseeded or restocked. Oyster reefs in Texas have been impacted due to drought, flooding, and hurricanes (Hurricane Ike, September 2008 and Hurricane Harvey, August 2017), as well as high harvest pressure. To date, the department has restored approximately 800 acres of oyster habitat with cultch placement techniques similar to those that will be employed in the areas closed by this rulemaking.
The amendment temporarily prohibits the harvest of oysters for two years within the boundary of the restoration area on two reefs in Conditionally Approved Area TX-6 in Galveston Bay (approximately 529 acres on Dollar Reef and approximately 14 acres on Desperation Reef). The Texas Department of State Health Services (DSHS) regulates shellfish sanitation and designates specific areas where oysters may be harvested for human consumption. The designation of "Conditionally Approved" or "Approved" is determined by DSHS.
The temporary closures are intended to provide sufficient time, following the planting of oyster cultch in the affected areas, for oysters to reach legal size for harvest. Oyster cultch is the material to which oyster spat (juvenile oysters) attach in order to create an oyster bed. The restoration activities also will establish stable substrate and provide suitable conditions for spat settlement and oyster bed development.
The amendment closes 14 acres on Desperation Reef in Galveston Bay for cultch placement through funding generated through H.B. 51 (85th Legislature, 2017), which included a requirement that certified oyster dealers re-deposit department-approved cultch materials in an amount equal to thirty percent of the total volume of oysters purchased in the previous license year. Additionally, construction associated with the Houston Ship Channel (HSC) Expansion Improvement Project resulted in unavoidable adverse impacts to oyster reefs. As a result of the Final Interagency Feasibility Report-Environmental Impact Statement, mitigation efforts to restore oyster reef in Galveston Bay were initiated to compensate for the loss of habitat. In coordination with resources agencies, the United States Corps of Engineers selected areas on Dollar Reef and San Leon Reef for restoration. Both sites were impacted by Hurricane Ike and this area has been the focus of recent department efforts to restore oyster reef. This mitigation project includes restoration on seven separate areas ranging in size from 13 acres to 20 acres. The closure of 529 acres includes this network of seven restoration areas. The closure area is a perimeter surrounding the totality of the restoration areas because the individual areas are close to one another and the department seeks to eliminate potential confusion that could result from closing restoration areas individually. Parts of this area were closed in 2022 and that closure would have expired in 2024 under the terms of current rule; however, due to the additional restoration efforts, the proposed amendment expands the closure area and extends the period of closure for another two years.
The department received no comments opposing adoption of the rule as proposed.
The department received seven comments supporting adoption of the rule as proposed.
The amendment is adopted under Parks and Wildlife Code, §76.301, which authorizes the commission to regulate the taking, possession, purchase and sale of oysters, including prescribing the times, places, conditions, and means and manner of taking oysters.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January 7, 2025.
TRD-202500017
James Murphy
General Counsel
Texas Parks and Wildlife Department
Effective date: January 27, 2025
Proposal publication date: October 4, 2024
For further information, please call: (512) 389-4775
SUBCHAPTER E. CULTIVATED OYSTER MARICULTURE
The Texas Parks and Wildlife Commission in a duly noticed meeting on November 7, 2024, adopted the repeal of §§58.354, 58.359, and 58.360, and amendments to §§58.352, 58.353, 58.355, and 58.356, concerning Cultivated Oyster Mariculture. The amendment to §58.353, concerning General Provisions, is adopted with changes to the proposed text as published in the October 4, 2024, issue of the Texas Register (49 TexReg 8059) and will be republished. The repeals and amendments to §§58.352, 58.355, and 58.356 are adopted without change and will not be republished.
The change to §58.353, concerning General Provisions, alters subsection (n)(4) to specify re-submergence is required for oysters intended to head directly to market, retail establishments, or restaurants for raw consumption. As proposed, the rule required all oysters that have been out of the water for a time period exceeding the parameters specified by the Department of State Health Services (DSHS) to be re-submerged for a minimum of 14 days prior to harvest. However, both DSHS rules and national shellfish sanitation program standards provide a qualified exception under certain circumstances for oysters for restricted use (such as freezing or other post-harvest processing to ensure they are safe for human consumption). The change acknowledges that exception in order to make such conduct legal.
The 86th Texas Legislature in 2019 enacted House Bill 1300, which added new Chapter 75 to the Texas Parks and Wildlife Code and delegated to the Parks and Wildlife Commission the authority to regulate the process of growing oysters in captivity. In turn, the Texas Parks and Wildlife Commission in 2020 adopted the current regulations governing oyster mariculture (45 TexReg 5916). In brief, those rules established various types of COM permit(s) and the general provisions governing permit privileges and obligations, as well as provisions governing administrative processes such as permit application, issuance, renewal, amendment, and denial, and reporting and recordkeeping requirements. The department was aware at that time that there would be a need to refine and modify the rules, as cultivated oyster mariculture did not exist in Texas prior to that time. In the time since the rules have been in effect, the department and the regulated community have communicated extensively to identify and develop improvements, which form the substantive basis for much of the rulemaking.
One goal of the rulemaking is to more explicitly denote compliance with applicable requirements of the National Shellfish Sanitation Plan (NSSP), a program administered by United States Food and Drug Administration (FDA) to ensure that molluscan shellfish (oysters, clams, mussels and scallops) moving in interstate commerce are safe for human consumption. Compliance with the NSSP is required for all oysters grown and harvested in Texas to enter interstate commerce.
The amendment to §58.352, concerning Definitions, adds definitions for "Approved area" and "Conditionally Approved area" to clearly articulate that those terms have the meaning assigned by the Texas Health and Safety Code. The amendment also creates new definitions for "Cultivated Oyster Mariculture Harvest Authorization" and "Hatchery." The amendment defines a "Cultivated Oyster Mariculture Harvest Authorization (harvest authorization)" as "a yearly authorization to allow the harvest of mariculture oysters." The stipulation of an annual authorization more clearly aligns with NSSP guidelines that require harvest authorizations be valid only for a one-year period. The authorization will be issued annually to each permit holder and will not result in any additional fees. The amendment defines "hatchery" as "a facility that spawns oyster broodstock," which is intended to explicitly acknowledge that such activities are authorized under a permit issued under this subchapter. The amendment also defines "oyster seed" as "any oyster 1 inch or less in size," which identifies a particular stage of oyster development rather than the broader terminology ("less than legal size") in the current rule.
The amendment to §58.353, concerning General Provisions, consists of several components. The amendment alters subsection (a) to allow a permittee to possess their permit either physically or electronically, which is intended to increase convenience for the regulated community.
The amendment to §58.353 also alters subsections (b) and (c) to more clearly delineate the differences between the two permits issued under the subchapter. The Cultivated Oyster Mariculture Permit is renamed the Cultivated Oyster Mariculture Grow-Out Permit, and the Cultivated Oyster Mariculture - Nursery Only Permit is renamed the Cultivated Oyster Mariculture Nursery-Hatchery Permit. The changes are intended to more clearly and explicitly delineate the activities authorized under a Nursery-Hatchery Permit. As many oyster hatcheries also function as nurseries, staff determined it would be more efficient to group nurseries and hatcheries under a single permit type. The alterations to the permit titles are made throughout the rules as adopted.
The amendment adds new subsection (e), which is current §58.360(1), concerning Prohibited Acts. Current §58.360 is repealed by this rulemaking and its contents have been relocated elsewhere in the rules as necessary. The modification is nonsubstantive.
The amendment alters current subsection (g) to include line-bred descendants of oysters originally from Texas waters as allowable broodstock. Current rules limit broodstock to oysters collected from Texas waters; however, this would allow the descendants of those oysters to be used, which would relieve a permittee from having to perform direct collection of broodstock from the wild each time broodstock is needed. The regulated community requested the change, as oyster hatcheries often retain offspring of broodstock to propagate additional broodstock in order to reduce the impact of continuous collection on wild populations. The department has determined that so long as the offspring have Texas-origin genetics there is little danger to the native genetics of Texas oyster populations.
The amendment to paragraph (1) of current subsection (g) extends the time period during which the department may authorize the importation of oysters under certain conditions from other states for use in oyster mariculture operations. The deadline in the current rule was intended to allow permittees for a limited period of time to utilize genetically acceptable stock produced outside of Texas, after which the department expected all stock to be propagated in Texas facilities using Texas broodstock lineage. Most oysters in the wild are diploid (having two sets of chromosomes); however, triploid (having three sets of chromosomes) oysters are mostly sterile, which makes them desirable for mariculture because they grow significantly faster than diploids and maintain high meat quality year-round (since no energy goes into reproduction). Triploid oysters rarely occur in the wild but can be produced reliably in a hatchery by crossing a diploid female with a tetraploid (four sets of chromosomes) male. However, the development of a Texas lineage tetraploid line has not occurred as quickly as anticipated, which necessitates an extension of the timeline. The amendment also more explicitly delineates the acceptable types of genetic provenance allowed for triploid oysters that can be lawfully imported to Texas for use in oyster mariculture operations. The rule as adopted specifies that the diploid parent must be of Texas origin broodstock, which protects the genetic identities of Texas oysters.
The amendment also adds new subsection (i), which is relocated from current §58.360(2), reorganized and reworded for clarity. As noted previously in this preamble, §58.360 is repealed in this rulemaking. The provision as adopted clarifies that the offense of commingling wild-caught oysters with oysters possessed under the provisions of this subchapter includes possession of wild-caught oysters within COM Grow-Out sites, within COM Nursery-Hatchery sites (except for legally obtained broodstock), or on a vessel operating under a permit issued under the subchapter.
The amendment retitles current subsection (l) to reflect the fact that the rule language addresses the harvest of cultivated oysters in general and does not apply solely to size requirements. The amendment alters current paragraph (1) to reduce the minimum size requirements for legal harvest of cultivated oysters, from 2.5 inches to two inches. The current COM rules stipulate a minimum size limit of 2.5 inches, which was intended primarily to facilitate field identification by department personnel of cultivated oysters (as opposed to cargos of wild oysters). Since the current rules have been in effect, the department has determined that because cultivated oysters are readily distinguishable from wild oysters, the minimum size limit can be reduced, which not only allows cultivated oysters to be marketed sooner, but also introduces additional market opportunities for the regulated community by enabling the sale of smaller oysters that are popular in certain markets. The amendment additionally creates a five percent allowance for undersized oysters (oysters between 1.5 inches and two inches in length) to acknowledge the inherent difficulty, when sorting and harvesting large quantities of oysters, of ensuring that all of them meet the minimum size limit.
The amendment revises paragraphs (2) and (3) of current subsection (l) to separate and more clearly state provisions applicable to oysters coming from Nursery-Hatchery sites in or using waters from Unclassified and Prohibited areas from provisions applicable to oysters coming from sites in or using waters from Restricted areas. The provisions give the size by which oysters in Nursery-Hatchery facilities located in or using certain waters (e.g., designated by DSHS as Unclassified, Prohibited, or Restricted) must be moved to waters designated by DSHS as Approved or Conditionally Approved, as well as the minimum length of time the oysters must remain in those waters before harvest. These standards are established by the NSSP. Further, the amendment to paragraph (2) also provides that oysters of over one inch in length in a Nursery-Hatchery facility located in or using waters from a Restricted area may be moved, but are subject to "relay regulation" requirements under the NSSP. The amendment adds new paragraph (4) to stipulate explicitly that oysters that are for certain reasons (e.g., tumbling and sorting) out of the water longer than the limits established by DSHS rule (Time-to-Temperature controls in the Vibrio vulnificus Management Plan for Oysters) must be re-submerged for at least 14 days prior to harvest, which is necessary to conform with NSSP standards intended to protect human health and safety. As noted earlier in this preamble, an exception for post-harvest processing has been added. Finally, new paragraph (5) clearly establishes that it is unlawful to harvest oysters unless both a valid Grow-Out permit and a valid Cultivated Oyster Mariculture Harvest Authorization are possessed, which is necessary to more explicitly align department rules with the NSSP.
The amendment to §58.353 also alters current subsection (n) to clearly establish that the department will review a permittee's request to add subpermittees to the permit, designate those persons approved for subpermittee status, and may refuse to authorize subpermittees determined to be unqualified for permit issuance. The provisions are necessary to ensure that persons authorized to conduct permitted activities in the absence or in lieu of the permittee are identified, qualified to do so, and not otherwise prohibited or ineligible from being a permittee.
The amendment to current subsection (p) provides for the transfer of permits. Under current rule, COM permits are not transferrable. At the request of the regulated community, the department considers that because the period of validity of a COM permit is ten years and COM activities are typically for-profit commercial ventures, there likely will be scenarios in which the nature of business transactions result in changes in ownership, which could result in disruptive or inconvenient situations resulting from the process of having to issue a new permit each time ownership changes. Therefore, the department is persuaded that a mechanism for transferring permits is reasonable and prudent. The amendment allows for the transfer of a permit upon completion of a transfer request and payment of a $200 transfer fee.
The amendment also alters the provisions of current subsection (r) to allow required infrastructure gear tags to bear the phone number of the permittee in lieu of the permittee's address.
The amendment to current subsection (s) consists primarily of clarifying changes to nomenclature. The word "harvest" would replace current language referencing the removal of oysters from permitted facilities, clarify that harvest tagging requirements apply to oysters being delivered and/or sold for human consumption, and that all tagging requirements of the subchapter must be met before oysters leave the permitted area.
Finally, the amendment alters current subsection (v) to rename the Oyster Seed Transport Document as the Oyster Transport Authorization and allow for transport of oysters to a temporary location for purposes of tumbling and sorting. The authorization creates a mechanism to document permitted activities involving the transport of oysters of various lengths outside of permitted sites, and to account for the possession of undersized oysters. The name change better identifies what the authorization is applicable to (i.e., not just oyster seed), and additional language clarifies the process by which authorizations are requested, reviewed, and issued. The rule as adopted requires this documentation to accompany all non-harvest tagged oysters, oyster seed or oyster larvae that are being transported outside of a permitted area. The amendment also creates a mechanism for oysters to be temporarily relocated outside of a permitted area for tumbling and sorting. A common oyster mariculture practice, the tumbling and sorting of oysters is a mechanical process that separates oysters according to size. Many permittees perform tumbling and sorting aboard boats on open water in permitted areas; however, wind and wave energy in Texas bay systems often make tumbling and sorting activities unsafe or unfeasible. The regulated community has requested the creation of some sort of mechanism that would allow the transport of oysters to a nearby location (such as a dock or onshore) to tumble and sort oysters. The department has determined that it is reasonable to allow permittees to transport mariculture oysters to shore on a temporary basis for tumbling and sorting, provided the oysters are then returned to the original permitted site prior to harvest and such oysters are not aboard any boat at the same time that oysters tagged for harvest are aboard.
The repeal of §58.354, concerning Oyster Seed Hatchery, is necessary because the provisions of the section are no longer needed in light of other aspects of this rulemaking.
The amendment to §58.355, concerning Permit Application, alters the subsection to provide for public notice of an application for a permit under the subchapter to be effected via the department's website. The current rule stipulates that the department will "publish notice" of permit applications and hold public meetings. Under current rule, the notices are required to be published in a newspaper. Because the Texas coast is lengthy and for the most part consists of small communities, newspaper publication is not as convenient as it once was and is not as efficient as electronic notification. The department believes it is more efficient to provide all notifications to the public via the department's website and to have the option of conducting the required public meetings virtually or in person. The department notes that it prepares and disseminates weekly press releases on a variety of department activities to hundreds of daily and weekly newspapers, who can then publish whatever is of interest to their readership. The department as well operates an email subscription service to notify interested persons and organizations of agency actions and notices.
The amendment to §58.356, concerning Renewal, alters the current provisions to clearly stipulate that the application fee specified in §53.13(d), concerning Fees, is also the renewal fee, since a submission of a renewal is simply another form of an application.
The repeal of §58.359, concerning Agency Decision to Refuse to Issue or Renew Permit; Review of Agency Decision, is necessary because all department regulations governing such processes were consolidated in 31 TAC Chapter 56 in compliance with the directives of the Texas Sunset Advisory Commission to establish a uniform process to govern department decisions to refuse issuance or renewal of non-recreational licenses and permits for which such processes are not prescribed by statute and prescribe a similar process regarding agency decisions to suspend or revoke a license or permit affected by the new subchapter.
The department received six comments in favor of adoption of the rules as proposed.
The department received seven comments in favor of adoption of the rules except for specific issues:
Three commenters, including the Texas Aquaculture Association, requested a reduction in fees. The department disagrees with the comment and responds that while fees are referenced in the subchapter, actual fee values are stipulated in another chapter and are not germane to this rulemaking. No changes were made as a result of the comments.
Five commenters, including the Texas Aquaculture Association and the Texas Oyster Mariculture Association, requested that permittees be allowed to use triploid oysters that do not have a Texas origin diploid parent so that increased oyster seed supply would be available to permit holders. The department disagrees with the comments and responds that not all triploids produced by a diploid-tetraploid cross are sterile, therefore having a Texas origin diploid parent protects the genetic integrity of the oyster stocks in Texas waters. No changes were made as a result of the comments.
Three commenters requested the elimination of a harvest size limit. The department disagrees with the comments and responds that the rules as proposed reduce the size limit, opening up a wider range of market opportunities for permit holders. Size limits help reinforce the minimum time requirements of oyster seed growing in Approved or Conditionally Approved waters prior to harvest for consumption. No changes were made as a result of the comments.
The department received one comment opposing adoption of the rules as proposed. The Texas Press Association commented in opposition to the proposed changes to the public notice provisions that eliminated the requirement for newspaper publication of an application for a COM permit stating that removing the requirement would deprive the public of an effective way of being informed of pending governmental action. The department disagrees with the comment and responds that very few communities along the Texas Gulf Coast still have a daily or weekly newspaper and that advertising in the few daily or weekly newspapers that do exist is not the most effective method of reaching members of the public who live in remote locations. The department notes that internet access is now widespread, and the department prepares and disseminates weekly press releases on a variety of department activities to hundreds of daily and weekly newspapers, magazines, and other media, who can then publish whatever is deemed to be of interest to their readership. The department as well operates an email subscription service to notify interested persons and organizations of agency actions and notices.
31 TAC §§58.352, 58.353, 58.355, 58.356
The amendments adopted are under the authority of Parks and Wildlife Code, §75.0103, which requires the commission to adopt rules to establish a program governing cultivated oyster mariculture, which may establish requirements for the taking, possession, transport, movement, and sale of cultivated oysters; the taking, possession, transport, and movement of broodstock oysters; fees and conditions for use of public resources, including broodstock oysters and public water, and any other matter necessary to implement and administer Parks and Wildlife Code, Chapter 75; and Parks and Wildlife Code, §75.0101, which requires the commission to adopt rules to establish requirements for permit applications and application fees; criteria for the approval, transfer, revocation, and suspension of permits; and procedures for hearings related to a permit.
§58.353.General Provisions.
(a) No person may engage in cultivated oyster mariculture (COM) in this state unless they have on their person a valid permit issued by the department authorizing the activity. A valid permit may be possessed in physical or electronic format.
(b) A Cultivated Oyster Mariculture (COM) Grow-out Permit authorizes the permittee to purchase, receive, grow, and sell cultivated oysters.
(c) A Cultivated Oyster Mariculture (COM) Nursery-Hatchery Permit authorizes a permittee to:
(1) hold oyster broodstock and germplasm;
(2) spawn oyster broodstock;
(3) purchase, receive, and grow oyster seed and larvae; and
(4) sell oyster broodstock, germplasm, seed, and larvae; but
(5) does not authorize the sale of oysters in any form for human consumption.
(d) No person may conduct an activity authorized by a permit issued under this subchapter at any location other than the location specified by the permit.
(e) It is unlawful for a permittee or subpermittee to possess an oyster dredge or oyster tongs within a permitted area or aboard a vessel transporting oysters under the provisions of this subchapter.
(f) The period of validity for a permit issued under this subchapter is 10 years, subject to the limitations of this subchapter.
(g) Unless otherwise specifically authorized in writing by the department, one year from the date of issuance of a COM Grow-Out Permit and by the anniversary of the date of issuance for each year thereafter, the permittee must provide evidence to the department's satisfaction that at least 100,000 oyster seed per acre of permitted area has been planted.
(h) Unless otherwise specifically authorized by the department in writing, cultivated oyster mariculture is restricted to seed and larvae from native Eastern oyster (Crassostrea virginica) broodstock collected or originating from Texas waters and propagated in a permitted Nursery-Hatchery located in Texas.
(1) The department may authorize a person permitted under this subchapter to, on or before December 31, 2033, import:
(A) tetraploid seed, larvae, and/or semen/eggs (germplasm) produced in department-approved out-of-state hatcheries located along the Gulf of Mexico for use in cultivated oyster mariculture in this state; and/or
(B) triploid seed, larvae, and/or semen/eggs (germplasm) from a tetraploid line of oysters originating from the Gulf of Mexico crossed with broodstock originating from Texas waters produced in department-approved out-of-state hatcheries located along the Gulf of Mexico for use in cultivated oyster mariculture in this state; and/or
(C) diploid seed, larvae, and/or semen/eggs (germplasm) produced from Texas broodstock at department-approved out-of-state hatcheries located along the Gulf of Mexico for use in cultivated oyster mariculture in this state.
(2) A department authorization made under the provisions of this subsection must be in writing and provide for any permit conditions the department deems necessary.
(3) The department will not authorize the possession of any oyster, larvae, or oyster seed that the department has determined, in the context of the prospective activity, represents a threat to any native oyster population, including to genetic identity.
(i) It is unlawful to possess wild caught oysters:
(1) within a COM Grow-Out permitted area;
(2) within a COM Nursery-Hatchery permitted area unless:
(A) they are legally obtained;
(B) labeled as to their identity and use for broodstock; and
(C) held separately from cultivated oysters; or
(3) on a vessel operating under a permit issued under this subchapter.
(j) The department may:
(1) inspect any permitted area, facility, infrastructure, container, vessel, or vehicle used to engage in cultivated oyster mariculture;
(2) sample any oyster in a permitted area, facility, container, vessel, or vehicle used to engage in cultivated oyster mariculture in order to determine genetic lineage; and
(3) specify any permit provisions deemed necessary.
(k) The holder of a COM Permit (Grow-out or Nursery-Hatchery) must notify the department within 24 hours of the:
(1) discovery of any disease condition within a permitted area; and
(2) discovery of any condition, manmade or natural, that creates a threat of the unintentional release of stock or larvae.
(3) The requirements of this subsection do not apply to the discovery of dermo (Perkinosis, Perkinsus marinus).
(l) The department may take any action it considers appropriate, including ordering the removal of all stock and larvae from a permitted area or facility and the cessation of permitted activities, upon:
(1) a determination that a disease condition other than dermo (Perkinsosis, Perkinsus marinus) exists; or
(2) the suspension or revocation by a federal or state entity of a permit or authorization required under §58.355 of this title (relating to Permit Application).
(m) The department may order the suspension of any or all permitted activities, including the removal of all stock and larvae from a permitted area or facility, upon determining that a permittee is not compliant with any provision of this subchapter, which suspension shall remain in effect until the deficiency is remedied and the department authorizes resumption of permitted activities in writing.
(n) Harvest Requirements.
(1) No person may harvest for the purpose of delivery and/or sale for human consumption any oyster less than 2.0 inches in length (measured along the greatest length of the shell) from a COM Grow-Out permitted area; however, a cargo of oysters may contain oysters between 1.5 inches and 2 inches (measured along the greatest length of the shell); provided such oysters constitute five percent or less of the cargo in question.
(2) Oysters produced under a Nursery-Hatchery permit in waters or using waters from an area classified as Prohibited or Unclassified must be transferred to a COM permitted Grow-Out location in waters classified as Approved or Conditionally Approved before they reach one inch in length (as measured along the greatest length of the shell) and held in that area for a minimum of 120 days before harvest.
(3) Oysters produced under a Nursery-Hatchery permit in waters or using waters from an area classified as Restricted must be transferred to a COM permitted Grow-Out location in waters classified as Approved or Conditionally Approved before they reach one inch in length (as measured along the greatest length of the shell) and held in that area for a minimum of 60 days before harvest. Oysters greater than one inch may be transferred from these facilities but are subject to relay regulation requirements under the NSSP.
(4) Oysters that are out of the water for a time period exceeding the parameters specified by the Time-to-Temperature controls established by DSHS in 25 TAC §241.68, relating to Vibrio vulnificus Management Plan for Oysters, must be re-submerged for a minimum of 14 days prior to harvest for market for raw consumption. Records regarding re-submergence must be maintained in accordance with permit provisions.
(5) It is unlawful for a permittee to harvest oysters under this subchapter unless they have a Grow-Out permit and a Cultivated Oyster Mariculture Harvest Authorization.
(o) Harvest of oysters under this subchapter is unlawful between sunset and sunrise.
(p) Except as may be specifically provided otherwise in this section, activities authorized by a permit issued under this subchapter shall be conducted only by the permittee or subpermittees named on the permit.
(1) A permittee may designate subpermittees to perform permitted activities in the absence of the permittee.
(A) The permittee shall submit a subpermittee request on a form provided by the department that is signed and dated by both the permittee and subpermittee.
(B) The department will review the request and issue a list of individuals authorized as subpermittees.
(C) The department may refuse to approve a subpermittee if that person would not be eligible to be a permittee under this subchapter.
(2) At all times that a subpermittee is conducting permitted activities, the subpermittee shall have on their person a valid permit and subpermittee list in physical or electronic format
(3) It is an offense for a permittee to allow any permitted activity to be performed by a person not listed with the department as a subpermittee as required under this subsection.
(4) A permittee and subpermittee are jointly liable for violations of this subchapter or the provisions of a permit issued under this subchapter.
(q) A permittee shall, prior to the placement of any infrastructure within a permitted area located in or on public water:
(1) mark the boundaries of the permitted area with buoys or other permanent markers and continuously maintain the markers until the termination of the permit. All marker, buoys, or other permanent markers must:
(A) be at least six inches in diameter;
(B) extend at least three feet above the water at mean high tide;
(C) be of a shape and color that is visible for at least one half-mile under conditions that do not constitute restricted visibility; and
(D) be marked with the permit identifier assigned by the department to the permitted area, in characters at least two inches high, in a location where it will not be obscured by water or marine growth; and
(2) install safety lights and signals required by applicable federal regulations, including regulations of the United States Coast Guard (U.S.C.G.) and must be functional. A permittee shall repair or otherwise restore to functionality any light or signal within 24 hours of notification by the U.S.C.G or the department.
(r) Transfer of Permit. The department may approve the transfer of a permit.
(1) A transfer request must be submitted to the department for approval on a form provided by the department, accompanied by the application fee specified in §53.13 of this title (relating to Business License and Permits (Fishing)).
(2) The department may refuse to approve a transfer if that person would not be eligible to be a permittee under this subchapter.
(3) A transfer does not change the terms, conditions, or provisions of a permit.
(s) Permittees must remove, at the expense of the permittee, all containers, enclosures and associated infrastructure from public waters within 60 calendar days of permit expiration or revocation.
(t) A valid gear tag must be attached to each piece of component infrastructure (e.g., containers, cages, bags, sacks, totes, trays, nursery structures) within a permitted area. The gear tag must bear the name and either address or phone number of the permittee and the permit identifier of the permitted area. The information on a gear tag must be legible.
(u) It is unlawful for any person to harvest oysters from a COM Grow-Out area for purposes of delivery and/or sale for human consumption unless the oysters are in a container that has been tagged in accordance with the applicable provisions of the NSSP concerning shellstock identification, and this subchapter. Tagging must occur prior to leaving the permitted area.
(v) Except as provided by subsection (u) of this section for harvested oysters transported for delivery and/or sale for human consumption, it is unlawful for any person to possess oysters, oyster seed, or oyster larvae outside of a permitted area unless the person also possesses a department-issued Oyster Transport Authorization or the department has authorized in a permit provision the transport of oysters for tumbling and sorting:
(1) Oyster Transport Authorization
(A) An Oyster Transport Request must be submitted to the department prior to the transport date and:
(i) be on a form provided or approved by the department;
(ii) contain the name, address, and, if applicable, permit identifier from whom the oysters, oyster seed, or oyster larvae were obtained;
(iii) contain the name, address, and permit identifier to whom the oyster, oyster seed, or oyster larvae are to be delivered; and
(iv) precisely account for and describe all containers in possession.
(B) The department will review the request and, if approved, will issue an Oyster Transport Authorization specific to the oysters, oyster seed, or oyster larvae being transported.
(2) Permit Provision Authorization for Tumbling and Sorting outside of permitted area
(A) The department may authorize, within a permit's provisions, a permittee to transport oysters to a specified location outside of their permitted area for tumbling and sorting oysters.
(B) Oysters must be returned to the permitted area after tumbling and sorting before harvest.
(C) It is unlawful to transport oysters for tumbling and sorting while in possession of oysters tagged for harvest.
(w) A vessel used to engage in activities regulated under this subchapter shall prominently display an identification plate supplied by the department at all times the vessel is being used in such activities.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January 10, 2025.
TRD-202500068
James Murphy
General Counsel
Texas Parks and Wildlife Department
Effective date: January 30, 2025
Proposal publication date: October 4, 2024
For further information, please call: (512) 389-4775
The repeals are adopted under the authority of Parks and Wildlife Code, §75.0103, which requires the commission to adopt rules to establish a program governing cultivated oyster mariculture, which may establish requirements for the taking, possession, transport, movement, and sale of cultivated oysters; the taking, possession, transport, and movement of broodstock oysters; fees and conditions for use of public resources, including broodstock oysters and public water, and any other matter necessary implement and administer Parks and Wildlife Code, Chapter 75; and Parks and Wildlife Code, §75.0101, which requires the commission to adopt rules to establish requirements for permit applications and application fees; criteria for the approval, transfer, revocation, and suspension of permits; and procedures for hearings related to a permit. The repeals affect Parks and Wildlife Code, Chapter 75.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January 10, 2025.
TRD-202500069
James Murphy
General Counsel
Texas Parks and Wildlife Department
Effective date: January 30, 2025
Proposal publication date: October 4, 2024
For further information, please call: (512) 389-4775