Adopted Rules Title 31

DIVISION 1. LICENSE, PERMIT, AND BOAT AND MOTOR FEES

The Texas Parks and Wildlife Commission in a duly noticed meeting on January 23, 2025, adopted an amendment to §53.10, concerning Public Hunting and Fishing Permits and Fees, without change to the proposed text as published in the December 20, 2024, issue of the Texas Register (49 TexReg 10292) and will not be republished.

The amendment is a result of the department's review of its regulations under the provisions of Government Code, §2001.039, which requires each 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.

The amendment implements a conforming change to terminology with respect to references to pronghorn antelope. In 2022, the department amended 31 TAC §65.3, concerning Definitions, to define "pronghorn" as "pronghorn antelope ( Antilocarpa americana )." Although Parks and Wildlife Code, Chapter 63, designates the "pronghorn antelope" as a game species, the animal is not in fact a true antelope. Additionally, it is less cumbersome to simply refer to the animal as a pronghorn.

The department received one comment opposing adoption of the rule as proposed. The commenter did not provide a reason or rationale for opposing adoption. No changes were made as a result of the comment.

The department received four comments supporting adoption of the rule as proposed.

The amendment is adopted under the authority of Parks and Wildlife Code, §81.403, which authorizes the commission to establish a fee for a permit for the hunting of wildlife or for any other use in wildlife management areas.

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 March 4, 2025.

TRD-202500780

James Murphy

General Counsel

Texas Parks and Wildlife Department

Effective date: March 24, 2025

Proposal publication date: December 20, 2024

For further information, please call: (512) 389-4775

SUBCHAPTER E. PERMITS TO POSSESS OR SELL NONGAME AND EXOTIC FISH TAKEN FROM PUBLIC FRESH WATER

The Texas Parks and Wildlife Commission in a duly noticed meeting on January 23, 2025, adopted amendments to 31 TAC §§57.377 - 379, 57.381, 57.382, and 57.384, concerning Permits to Possess or Sell Nongame and Exotic Fish Taken from Public Fresh Water. Section 57.377, concerning Definitions, and §57.378, concerning Applicability: Affected Species, are adopted with changes to the proposed text as published in the December 20, 2024, issue of the Texas Register (49 TexReg 10293) and will be republished. Sections 57.379, 57.381, 57.382, and 57.384 are adopted without change and will not be republished.

The change to §57.377 adds a closing parentheses mark to paragraph (1). The change to §57.378 moves common carp from the list of nongame species in subsection (a) to the list of exotic species in subsection (b), corrects capitalization errors in taxonomic names in subsections (a)(8) and (b)(2), and a misspelling of Pterygoplichthys in subsection (c). The changes are nonsubstantive.

The amendments add selected exotic species of fish to the list of species for which the department may issue permits authorizing take from public waters for commercial purposes, remove several species from that list, and make clarifying and housekeeping-type changes to improve accuracy and readability.

The amendment to §57.377, concerning Definitions, adds language to clarify that the rules include and are applicable to exotic species in addition to indigenous species. Under Parks and Wildlife Code, Chapter 61, the commission is authorized to regulate the take and possession of aquatic animal life from public fresh water. Parks and Wildlife Code, Chapter 66, delegates to the commission the authority to designate nonindigenous (exotic) species of fish as harmful or potentially harmful exotic aquatic species and regulate their importation, possession, and sale. Under Parks and Wildlife Code, Chapter 67, the department is delegated the authority to manage all indigenous species of fish not designated by rule as game fish (i.e., nongame fish) if necessary to properly manage the species. The amendment is intended to eliminate possible confusion, and is made throughout this rulemaking.

The amendment to §57.378, concerning Applicability: Nongame Fishes, retitles the section to be generic with respect to the effect of the subchapter, adds silver carp and suckermouth armored catfish to the list of species for which a permit may be issued for commercial take, removes freshwater drum, Rio Grande cichlid, and minnows from the list, and adds a clarifying statement that no permit under Chapter 57, Subchapter A (Harmful or Potentially Harmful Fish, Shellfish, and Aquatic Plants) is required for an activity authorized under a permit issued under Subchapter E. The amendment also replaces the current graphic list of affected species with a list that conforms to the conventional rule format.

Silver carp are native to eastern Asia and were introduced to private fish farms and wastewater treatment facilities in the United States during the 1970s and 1980s as a biological control agent to reduce algae growth and improve water-quality conditions in ponds. By 1980, they had escaped into the Mississippi River system during high-water flooding events and subsequently spread rapidly throughout the Mississippi River drainage. They have become established and potentially problematic in more than ten states, where they compete with native species and pose hazards to boaters because they can weigh up to 60 pounds and are capable of leaping out of the water when startled (such as by boat noise), sometimes striking boaters. Silver carp are now well-documented in the Red River and all its Texas tributaries below Lake Texoma but are not yet highly abundant. There are U.S. and international markets for wild-caught silver carp, regional efforts are underway to incentivize harvest, and the amendment allows their commercial sale. The amendment is intended to encourage removal of this species from Texas fresh waters with the additional benefit of commercial incentive.

Suckermouth armored catfish are native to Central and South America and were imported to the U.S. via the aquarium trade to control algae. Aquarists have been known to dump the contents of fish tanks for various reasons, which is believed to have resulted in the introduction of this species to Texas waters, where high abundance has been documented in some locations. This species competes with indigenous fishes, inadvertently consumes the eggs of other fishes through its feeding behavior, and may cause serious disruptions in food webs and native ecosystems. They are especially problematic in spring-influenced river systems such as those found in the Edwards Plateau of Texas but are also widespread in the Houston and South Texas regions. Additionally, their burrowing behavior causes destabilization and erosion in riverbanks, earthen retention structures, and under concrete retention structures, with resulting potential for economic damage. There has been commercial interest in this species from pet food producers. The amendment is intended to encourage removal of this species from Texas fresh waters with the additional benefit of a commercial incentive.

Freshwater drum are indigenous to Texas and are recreationally and ecologically important. The species serves as a reproductive host for numerous species of native freshwater mussels, many of which are threatened, endangered, or recognized as species in need of conservation intervention. The department has determined that continued commercial harvest of freshwater drum is inconsistent with conservation and recovery goals for imperiled freshwater mussels; therefore, the amendment removes the species from the list of species for which a permit under the subchapter could be issued.

Similarly, the amendment removes minnows from the list of species for which a permit under the subchapter is authorized. The department has determined that 64 percent of the minnow genera currently authorized for commercial harvest in Texas include species that are threatened, endangered, or species of greatest conservation need--37 imperiled species in total. Because of their small size and similarity of appearance, the department believes it is prudent to prohibit all commercial harvest in order to ensure the ability of all minnow species to perpetuate themselves, as well as to forestall or prevent additional state or federal listings as threatened or endangered species.

Finally, the amendment removes the Rio Grande cichlid from the list of species authorized for commercial harvest. The Rio Grande cichlid is native to Texas and is the only indigenous cichlid native to the U.S. Known to be a vigorous fighter, it has become increasingly popular as a sport fish, particularly among fly fishers. Commercial take has become almost non-existent and the department believes that removing it from the list aligns with recreational fisheries management goals, especially for Central Texas creeks and rivers, where sport fishing guides offer trips targeting the species.

The amendment to §57.382, concerning Harvest and Sales Reports, eliminates the current contents of the section other than the requirement to retain sales receipts and inserts a reference to the requirements of §57.993, concerning Commercial Harvest Report. Under the provisions of §57.993, all persons who engage in commercial harvest activities are required to report those activities to the department; therefore, the requirements of current paragraphs (1) and (2) of §57.382 are unnecessary, since that data is already captured. Therefore, the contents of current paragraph (1) and (2) can be replaced with a simple reference to the reports required under §57.993.

The amendment to §57.384, concerning Refusal to Issue, eliminates current paragraph (4), which is no longer necessary. 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. The permit established by this subchapter is subject to the provisions of Chapter 56; thus, paragraph (4) is no longer necessary. The amendment retitles the section accordingly to reflect the content of the section.

The amendments to §57.379, concerning Prohibited Acts, §57.381, concerning Permit Specifications and Requirements, and §57.382, concerning Harvest and Sales Reports, make conforming changes as discussed earlier to reflect the applicability of the rules to all species of fish taken from public waters for commercial purposes.

The department received six comments supporting adoption of the rules as proposed.

The amendments are adopted under Parks and Wildlife Code, Chapter 61, which authorizes the commission to regulate take and possession of aquatic animal life and the means, methods, and places in which it is lawful to take or possess aquatic animal life (including public fresh water); Chapter 66, Subchapter A, which authorizes the department to make rules governing the importation, possession, and sale of exotic harmful or potentially harmful fish; and Chapter 67, which authorizes the commission to establish any limitation of the take, possession, propagation, transportation importation, exportation, sale, and offering for sale of nongame wish necessary to manage those species.

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

(1) Affected species--For purposes of this subchapter, all nongame fish and exotic fish listed in §57.378 of this title (relating to Applicability; Affected Species).

(2) Department--The Texas Parks and Wildlife Department or any authorized employee thereof.

(4) Game fish--As defined in §57.971(15)(A) of this title (relating to Definitions).

(5) Nongame fish--For the purposes of this subchapter, all indigenous or native species not defined as game fish, except endangered and threatened fish, which are defined and regulated under Chapter 65, Subchapter G of this title (relating to Threatened and Endangered Nongame Species).

(6) 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 of this title (relating to Definitions), where public access is available without discrimination.

(a) Nongame Species. A permit to sell the following species of fish taken from public fresh water may be issued if the department determines that it is necessary to properly manage the species.

(b) Exotic fish. A permit to sell the following species of fish taken from public fresh water may be issued if the department determines that it will encourage the removal of undesirable species.

(c) Hybrids among species listed in subsection (a) of this section may be sold under a permit issued under this subchapter authorizing the take of at least one of the species.

(d) No permit under Chapter 57, Subchapter A, of this chapter is required for an activity authorized under a permit issued under this subchapter; however, all controlled exotic species taken under this subchapter shall be subject to the provisions of §57.113(e) of this title (relating to General Provisions and Exceptions).

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

The Texas Parks and Wildlife Commission in a duly noticed meeting on January 23, 2025, adopted amendments to 31 TAC §69.4 and §69.8, concerning Endangered, Threatened, and Protected Native Plants, and §69.304 and §69.305, concerning Scientific, Educational, and Zoological Permits, without change to the proposed text as published in the December 20, 2024, issue of the Texas Register (49 TexReg 10320). The rules will not be republished. The amendments make corrections to internal citations and update scientific names and organizational titles and are nonsubstantive.

The amendments are a result of the department's review of its regulations under the provisions of Government Code, §2001.039, which requires each 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.

The amendment to §69.4, concerning Renewal, corrects an erroneous internal citation.

The amendment to §69.8, concerning Endangered and Threatened Plants, updates the scientific names for two species of plants. From time to time the consensus of the scientific community with respect to taxonomic differentiation changes, necessitating updates to department rules to reflect that fact.

The amendments to §69.304, concerning Qualifications, and §69.305, concerning Reports, update the name of an accrediting organization.

The department received one comment opposing adoption of the rules as proposed. The commenter did not provide a reason or rationale for opposing adoption. No changes were made as a result of the comment.

The department received six comments supporting adoption of the rules as proposed.

The amendment is adopted under the authority of Parks and Wildlife Code, §88.006, which requires the department to adopt regulations to administer the provisions of Chapter 88, including regulations to provide for procedures for identifying endangered, threatened, or protected plants.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

The amendments are adopted under Parks and Wildlife Code, §43.002, which requires the commission to adopt rules to govern the collecting, holding, possession, propagation, release, display, or transport of protected wildlife for scientific research, educational display, zoological collection, or rehabilitation.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.