Proposed Rules Title 31

TITLE 31. NATURAL RESOURCES AND CONSERVATION

PART 2. TEXAS PARKS AND WILDLIFE DEPARTMENT

CHAPTER 51. EXECUTIVE

SUBCHAPTER B. AUTHORITY TO CONTRACT

The Texas Parks and Wildlife Department (TPWD) proposes an amendment to 31 TAC §51.61, concerning Enhanced Contract Monitoring. The proposed amendment would add a comprehensive provision to the list of factors in subsection (b) that the department considers when making a determination to implement enhanced contract monitoring measures.

Under Government Code, §2261.253(c), a state agency is required to establish by rule a procedure to identify each contract that requires enhanced contract or performance monitoring. The current rule lists multiple factors that TPWD will consider when determining whether a contract requires enhanced monitoring. The proposed amendment would add new paragraph (17) to provide for the consideration of any factors in addition to those enumerated in subsection (b) and is intended to provide the department with additional flexibility to consider other important factors, especially those recommended by the Comptroller of Public Accounts Statewide Procurement Division.

The proposed 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.

Tammy Dunham, Director of Contracting, has determined that for each of the first five years that the rule as proposed is in effect, there will be no fiscal implications to state or local governments as a result of administering or enforcing the rule.

Ms. Dunham also has determined that for each of the first five years that the rule as proposed is in effect, the public benefit anticipated as a result of enforcing or administering the proposed rule will be enhancement of the department's ability to ensure that contracts and contractors are effectively monitored, which will ensure that the public trust is preserved.

There will be no adverse economic effect on persons required to comply with the rule, as the rule applies only to internal department administrative processes.

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 on small businesses, micro-businesses, or rural communities. 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 and microbusinesses and rural communities. Those guidelines state that an agency need only consider a proposed rule's direct adverse economic impacts to determine if any further analysis is required. 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.

The department has determined that proposed rule would result in no direct economic effect on any small businesses, micro-businesses, or rural community, as the rule applies only to internal department administrative processes and not to any business or person. Therefore, neither the economic impact statement nor the regulatory flexibility analysis described in Government Code, Chapter 2006, is required.

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

The department has determined that Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rule.

The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rule.

In compliance with the requirements of Government Code, §2001.0221, the department has prepared the following Government Growth Impact Statement (GGIS). The rule as proposed, if adopted, will neither create nor eliminate a government program; not result in an increase or decrease in the number of full-time equivalent employee needs; not result in a need for additional General Revenue funding; not affect the amount of an existing fee; not create, expand, or repeal an existing regulation; not increase or decrease the number of individuals subject to regulation; and not positively or adversely affect the state's economy.

Comments on the proposal may be submitted to Tammy Dunham at (512) 389-4752, e-mail: tammy.dunham@tpwd.texas.gov. Comments also may be submitted via the department's website at http://www.tpwd.texas.gov/business/feedback/public_comment/.

The amendment is proposed under the authority of Government Code, §2261.253(c), which requires state agencies to establish by rule a procedure to identify each contract that requires enhanced contract or performance monitoring.

The proposed amendment affects Government Code, §2261.253.

§51.61.Enhanced Contract Monitoring.

(a) (No change.)

(b) In determining if a contract requires enhanced contract monitoring, the department will consider the following factors, to the extent applicable:

(1) - (16) (No change.)

(17) Additional Factors. The department will consider additional factors that it determines appropriate, in accordance with Government Code, §2261.253(c).

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on September 23, 2024.

TRD-202404559

James Murphy

General Counsel

Texas Parks and Wildlife Department

Earliest possible date of adoption: November 3, 2024

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

SUBCHAPTER G. NONPROFIT ORGANIZATIONS

31 TAC §51.168

The Texas Parks and Wildlife Department proposes an amendment to 31 TAC §51.168, concerning Nonprofit Partnerships to Promote Hunting and Fishing by Resident Veterans. The proposed amendment would replace an inaccurate acronym where necessary throughout the section. Under the provisions of §51.161, concerning Definitions, the acronym for "nonprofit partner" in Subchapter G is "NP." However, in §51.168, the acronym "NPP" is employed, which could cause confusion. The proposed amendment would rectify the inaccuracy.

Robert Macdonald, Regulations Coordinator, has determined that for each of the first five years that the rule as proposed is in effect, there will be no fiscal implications to state or local governments as a result of administering or enforcing the rule.

Mr. Macdonald also has determined that for each of the first five years that the rule as proposed is in effect, the public benefit anticipated as a result of enforcing or administering the proposed rule will be accurate department regulations.

There will be no adverse economic effect on persons required to comply with the rule, as the rule applies only to internal department administrative processes.

The department has determined that the proposed rule would result in no direct economic effect on any small businesses, micro-businesses, or rural community, as the rule applies only to internal department administrative processes and not to any business or person. Therefore, neither the economic impact statement nor the regulatory flexibility analysis described in Government Code, Chapter 2006, is required.

The department has determined that Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rule.

The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rule.

Comments on the proposal may be submitted to Robert Macdonald at (512) 389-4775, e-mail: robert.macdonald@tpwd.texas.gov. Comments also may be submitted via the department's website at http://www.tpwd.texas.gov/business/feedback/public_comment/.

The amendment is proposed under the authority of Parks and Wildlife Code, §11.208, which allows the commission to establish by rule the criteria under which the department may select a nonprofit partner and the guidelines under which a representative of or a veteran served by a nonprofit partner may engage in hunting or fishing activities provided by the nonprofit partner.

The proposed amendment affects Parks and Wildlife Code, Chapter 11.

§51.168.Nonprofit Partnerships to Promote Hunting and Fishing by Resident Veterans.

(a) The department shall select one or more NP [~~nonprofit partners (NPP)~~] to promote hunting and fishing by residents of this state who are veterans of the United States Armed Forces. A prospective NP [~~NPP~~] under this section must exist exclusively to serve veterans of the United States Armed Forces. The selection process shall be conducted according to the applicable provisions of this subchapter, and shall occur at three-year intervals by means of a request for proposals published by the department.

(b) The following guidelines shall govern hunting and fishing activities under this section.

(1) An NP [~~NPP~~] must provide angling and hunting opportunities on private lands and/or public waters in Texas.

(2) (No change.)

(3) Hunting and fishing opportunity provided by an NP [~~NPP~~] under this section:

(A) (No change.)

(B) must be advertised by the NP [~~NPP~~] by providing public notice.

(4) Hunting and fishing opportunity provided by an NP [~~NPP~~] shall be at no cost to participants, not to include travel, lodging, meals, and other expenses ancillary to hunting and fishing activities unless those costs are provided by the NP [~~NPP~~] at the discretion of the NP [~~NPP~~].

(5) Not less than 30 days before any hunting or fishing activity may be provided or engaged in, an NP [~~NPP~~] shall complete and provide to the department on a form provided or approved by the department, the specific hunting and/or angling opportunities to be provided, to include the following, at a minimum:

(A) - (C) (No change.)

(D) the name and address of each representative of the NP [~~NPP~~] who will be participating in the activity.

(6) (No change.)

(7) The representative of an NP [~~NPP~~] who accompanies a participant who engages in hunting activities shall immediately tag any animal or bird killed by a participant for which a tag is required under Parks and Wildlife Code, Chapter 42 with a tag issued by the department to the NP [~~NPP~~] for the hunting opportunity.

(8) The representative of an NP [~~NPP~~] who accompanies a participant who engages in fishing activities shall immediately tag any fish caught by a participant for which a tag is required under Parks and Wildlife Code, Chapter 46 with a tag issued by the department to the NP [~~NPP~~] for the fishing opportunity.

(9) A wildlife resource document provided by the department to the NP [~~NPP~~] and completed by the representative of an NP [~~NPP~~] who accompanies a participant who engages in hunting or fishing activities shall accompany any harvested wildlife resource or portion thereof not accompanied by a tag until the wildlife resource reaches:

(A) - (C) (No change.)

(10) An NP [~~NPP~~] shall maintain a daily harvest log of hunting or fishing activity conducted.

(A) (No change.)

(B) The representative of an NP [~~NPP~~] who accompanies a participant who engages in hunting or fishing activities shall, on the same day that a wildlife resource is killed or caught, legibly enter the following information in the daily harvest log:

(i) the name of the NP [~~NPP~~] representative;

(ii) - (v) (No change.)

(D) The daily harvest log shall be retained by an NP [~~NPP~~] for a period of two years following the latest entry of hunting or fishing activity required to be recorded in the log.

(11) An NP [~~NPP~~] shall complete and submit an annual report to the department on a form prescribed or approved by the department.

(c) A person acting as a representative of an NP [~~NPP~~] under this section is not exempt from any licensing, stamp, documentation, or other rule of the department while engaging in hunting or fishing activities under this section.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on September 23, 2024.

TRD-202404556

James Murphy

General Counsel

Texas Parks and Wildlife Department

Earliest possible date of adoption: November 3, 2024

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

SUBCHAPTER K. DISCLOSURE OF CUSTOMER INFORMATION

31 TAC §51.301

The Texas Parks and Wildlife Department proposes an amendment to 31 TAC §51.301, concerning Duties of the Department. The proposed amendment would eliminate subsection (a), which is no longer necessary.

There will be no adverse economic effect on persons required to comply with the rule, as the rule applies only to internal department administrative processes.

The department has determined that Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rule.

The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rule.

The amendment is proposed under Parks and Wildlife Code, §11.030, which requires the commission to adopt policies relating to the release and use of customer information by rule.

The proposed amendment affects Parks and Wildlife Code, Chapter 11.

§51.301.Duties of the Department.

[(a) The executive director shall prepare and make available a list of the types of information maintained by the department that are included in each of the applicable categories listed in §51.300 of this title (relating to Definitions).]

(a) [~~(b)~~] The department will collect only that customer information and personal customer information required to carry out department functions.

(b) [~~(c)~~] The department will use customer information and personal customer information only as required to carry out department functions.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on September 23, 2024.

TRD-202404558

James Murphy

General Counsel

Texas Parks and Wildlife Department

Earliest possible date of adoption: November 3, 2024

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

CHAPTER 56. AGENCY DECISION TO REFUSE LICENSE OR PERMIT ISSUANCE OR RENEWAL AND AGENCY DECISION TO SUSPEND OR REVOKE AFFECTED LICENSE OR PERMIT

31 TAC §56.7

The Texas Parks and Wildlife Department proposes an amendment to 31 TAC §56.7, concerning Permits and Licenses Affected. The proposed amendment would add all cultivated 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 proposed rulemaking published elsewhere in this issue regarding COM rules, the department proposes 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 this proposed rule would therefore apply the standards established in Chapter 56 to all COM permits.

There will be no adverse economic effect on persons required to comply with the rule, as the provisions of Chapter 56 are substantively similar to the provisions of §58.359 currently in effect.

The department has determined that proposed rule would result in no direct economic effect on any small businesses, micro-businesses, or rural community, as the rule does not substantively affect internal department administrative processes currently in effect under existing rule. Therefore, neither the economic impact statement nor the regulatory flexibility analysis described in Government Code, Chapter 2006, is required.

The department has determined that Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rule.

The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rule.

Comments on the proposed rule may be submitted to Michaela Cowan, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-8575; email: cfish@tpwd.texas.gov or via the department website at www.tpwd.texas.gov.

The amendment is proposed 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 proposed amendment affects Parks and Wildlife Code, Chapters 12 and 75.

§56.7.Permits and Licenses Affected.

The provisions of this chapter apply to the following types of permits and licenses.

(1) - (10) (No change.)

(11) Cultivated Oyster Mariculture - all;

(12) [~~(11)~~] Depredation;

(13) [~~(12)~~] Educational Display;

(14) [~~(13)~~] Falconry - all;

(15) [~~(14)~~] Finfish Import;

(16) [~~(15~~] Fish Dealer - all;

(17) [~~(16)~~] Fishing Guide - all;

(18) [~~(17)~~] Furbearing Animal - all;

(19) [~~(18)~~] Game Animal Breeder;

(20) [~~(19)~~] Game Bird Breeder - all;

(21) [~~(20)~~] Hunting Cooperative - all;

(22) [~~(21)~~] Marine Dealer, Distributor, or Manufacturer;

(23) [~~(22)~~] Menhaden Boat - all;

(24) [~~(23)~~] Nongame Fish;

(25) [~~(24)~~] Party Boat Operator;

(26) [~~(25)~~] Private Bird Hunting Area;

(27) [~~(26)~~] Scientific Plant Research;

(28) [~~(27)~~] Scientific Research;

(29) [~~(28)~~] Shell Buyer - all;

(30) [~~(29)~~] Shrimp Boat Captain - all;

(31) [~~(30)~~] Shrimp Offloading;

(32) [~~(31)~~] Wildlife Management Association Area Hunting Lease - all;

(33) [~~(32)~~] Wildlife Rehabilitation; and

(34) [~~(33)~~] Zoological.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on September 23, 2024.

TRD-202404552

James Murphy

General Counsel

Texas Parks and Wildlife Department

Earliest possible date of adoption: November 3, 2024

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

CHAPTER 58. OYSTERS, SHRIMP, AND FINFISH

SUBCHAPTER A. STATEWIDE OYSTER FISHERY PROCLAMATION

31 TAC §58.21

The Texas Parks and Wildlife Department proposes an amendment to 31 TAC §58.21, concerning Taking or Attempting to Take Oysters from Public Oyster Beds: General Rules.

The proposed amendment would temporarily prohibit 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 proposed amendment would temporarily close a total of 543 acres to oyster harvest for two years. 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 will allow for repopulation in those areas after planting of oyster cultch, and enough time for those 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.

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. TPWD has restored approximately 800 acres of oyster habitat with cultch placement techniques such as those used here.

The proposed amendment would close 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. During the Final Interagency Feasibility Report-Environmental Impact Statement, mitigation efforts were proposed, consisting of the restoration of oyster reef in Galveston Bay 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 TPWD efforts to restore oyster reef. This mitigation project includes restoration on seven separate areas ranging in size from 13 acres to 20 acres. The proposed 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 closed 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; however, due to the additional restoration efforts, the proposed amendment would expand the closure area and extend the period of closure for another two years.

Dakus Geeslin, Deputy Director, Coastal Fisheries Division, has determined that for each of the first five years that the rule as proposed is in effect, there will be no fiscal implications to state or local governments as a result of administering or enforcing the rule.

Mr. Geeslin also has determined that for each of the first five years that the rule as proposed is in effect, the public benefit anticipated as a result of enforcing or administering the proposed rule will be the dispensation of the agency's statutory duty to protect and conserve the fisheries resources of this state; the duty to equitably distribute opportunity for the enjoyment of those resources among the citizens; the execution of the commission's policy to maximize recreational opportunity within the precepts of sound biological management practices; the potential for increased oyster production by repopulating damaged public oyster reefs and allowing these oysters to reach legal size and subsequent recreational and commercial harvest; and providing protection from harvest to a reef complex thus establishing a continual supply of oyster larvae to colonize oyster habitat within the bay system.

Under 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 on small businesses and micro-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. The department has determined that because the areas designated for closure have been degraded to the extent that they no longer support any commercial exploitation, the closures effected by the proposed rules will not result in direct adverse economic impacts to any small business, microbusiness, or rural community. Therefore, neither the economic impact statement nor the regulatory flexibility analysis described in Government Code, Chapter 2006, is required.

There will be no adverse economic effect on persons required to comply with the rule as proposed.

The department has determined that Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rule.

The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rule.

In compliance with the requirements of Government Code, §2001.0221, the department has prepared the following Government Growth Impact Statement (GGIS). The rule as proposed, if adopted, will: neither create nor eliminate a government program; not result in an increase or decrease in the number of full-time equivalent employee needs; not result in a need for additional General Revenue funding; not affect the amount of any fee; not create a new regulation; will expand an existing regulation (by creating new area closures); neither increase nor decrease the number of individuals subject to regulation; and not positively or adversely affect the state's economy.

The department has determined that the proposed rules is in compliance with Government Code §505.11 (Actions and Rule Amendments Subject to the Coastal Management Program).

Comments on the proposed rule may be submitted to Hanna Bauer, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-8255; email: cfish@tpwd.texas.gov, or via the department website at www.tpwd.texas.gov.

The amendment is proposed 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 proposed amendment affects Parks and Wildlife Code, Chapter 76.

§58.21.Taking or Attempting to Take Oysters from Public Oyster Beds: General Rules.

(a) - (b) (No change.)

(1) (No change.)

(2) No person may take or attempt to take oysters within an area described in this paragraph. The provisions of subparagraphs (A)(i)-(ii) cease effect on November 1, 2025. The provisions of subparagraph (A)(iii)-(iv) cease effect on November 1, 2026. The provisions of subparagraph [~~(A)(iii) and~~] (B) of this paragraph cease on November 1, 2024.

(A) Galveston Bay.

(i) - (ii) (No change.)

(iii) Dollar Reef HSE Mitigation Site. The area within the boundaries of a line beginning at 29° 27' 32.85"N, 94° 53' 45.62"W (29.459125°N, 94.896006°W, corner marker buoy A); thence to 29° 27' 04.95"N, 94° 52' 39.17"W (29.451376°N, 94.877548°W, corner marker buoy B); thence to 29° 26' 27.69"N, 94° 53' 02.34"W (29.441026°N, 94.883984°W, corner marker buoy C); thence to 29° 26' 42.34"N, 94° 53' 37.31"W (29.445094°N, 94.893697°W, corner marker buoy D); thence to 29° 27' 25.61"N, 94° 53' 52.37"W (29.457114°N. 94.897881°W, corner marker buoy E); and thence back to buoy A. [29° 27' 22.92"N, 94° 53' 46.44"W (29.456367°N, -94.896233°W, corner marker buoy A); thence to, 29° 27' 13.62"N, 94° 53' 23.80"W (29.453784°N, -94.889944°W, corner marker buoy B); thence to, 29° 26' 51.77"N, 94° 53' 40.51"W (29.447713°N, -94.894587°W, corner marker buoy C); thence to, 29° 27' 18.96"N, 94° 53' 49.96"W (29.455265°N, -94.897211°W, corner marker buoy D); and thence back to corner marker buoy A.]

(iv) Desperation Reef. The area within the boundaries of a line beginning at 29° 29' 34.40"N, 94° 52' 53.08"W (29.49289°N, 94.88141°W, corner marker buoy A); thence to 29° 29' 35.69"N, 94° 52' 46.70"W (29.49325°N, 94.87964°W, corner marker buoy B); thence to 29° 29' 28.14"N, 94° 52' 41.56"W (29.49115°N, 94.87821°W, corner marker buoy C); thence to 29° 29' 26.56"N, 94° 52' 51.56"W (29.49071°N, 94.88098°W, corner marker buoy D); thence back to buoy A.

(B) - (L) (No change.)

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on September 23, 2024.

TRD-202404562

James Murphy

General Counsel

Texas Parks and Wildlife Department

Earliest possible date of adoption: November 3, 2024

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

CHAPTER 58. OYSTERS, SHRIMP, AND FINFISH

The Texas Parks and Wildlife Department proposes amendments to §§58.352, 58.353, 58.355, and 58.356 and the repeal of §§58.354, 58.359, and 58.360 concerning Cultivated Oyster Mariculture. The amendments and repeals are necessary to improve and enhance the regulation of cultivated oyster mariculture (COM) operations in the state.

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 first and 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 had never existed 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 proposed rulemaking.

One goal of the proposed 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 proposed amendment to §58.352, concerning Definitions, would add 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 proposed amendment also would create new definitions for "Cultivated Oyster Mariculture Harvest Authorization" and "Hatchery." The proposed amendment would define Cultivated Oyster Mariculture Harvest Authorization (harvest authorization) as "a yearly authorization to allow the harvest of mariculture oysters." This annual authorization more clearly meets NSSP guidelines for harvest authorizations to only be valid for a one-year period. This authorization will be issued annually to each permit holder and will not result in any additional fees. The proposed amendment defines hatchery as "facility that spawns oyster broodstock" so that these activities can be included in what is covered by a permit issued by this subchapter. The proposed amendment would also modify the definition of "oyster seed" to refine the definition to any oyster 1 inch or less in size; this helps distinguish this particular stage of oysters rather than the broader terminology less than legal size.

The proposed amendment to §58.353, concerning General Provisions, also consists of several components. The proposed amendment would alter 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 proposed amendment to §58.353 also would alter subsections (b) and (c) to more clearly delineate the differences between the two permits issued under this subchapter. The Cultivated Oyster Mariculture Permit would be renamed the Cultivated Oyster Mariculture Grow-Out Permit, and the Cultivated Oyster Mariculture - Nursery Only Permit would be 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 into a single permit type. The alterations to the permit titles are made throughout the proposed rules.

The proposed amendment would add new subsection (e), which is current §58.360(1), concerning Prohibited Acts. Section 58.360 is proposed for repeal in this rulemaking as the majority of the text is redundant to General Provisions, and the two nonredundant contents of that section would be distributed to other locations within the rules as noted. The proposed modification is nonsubstantive.

The proposed amendment would alter current subsection (g) to include using 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, not requiring a direct collection of broodstock from the wild each time. The regulated community requested this change as oyster hatcheries often keep offspring of broodstock to grow into broodstock themselves to reduce the impact on wild populations from continuous collections to facilitate production. 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 proposed 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 to utilize genetically acceptable stock produced outside of Texas within a limited amount of time, 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 proposed amendment also would more explicitly delineate the acceptable types of genetic provenance allowed for triploid oysters that can be lawfully imported to Texas for use in oyster mariculture operations. We specify that the diploid parent must be of Texas origin broodstock to add further insurance to protect genetic identity of Texas oysters.

The proposed amendment also would add new subsection (i), which is relocated from current §58.360(2) but has been reorganized and reworded for clarity. As noted previously in this preamble, §58.360 is proposed for repeal in this rulemaking, as the majority of the text is redundant to General Provisions. The rewording clarifies that the offense of commingling wild-caught oysters with oysters possessed under the provisions of this subchapter means that possession of wild-caught oysters is prohibited 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 proposed amendment would retitle current subsection (l) to reflect the fact that the rule language is being altered to address the harvest of cultivated oysters in general and does not apply solely to size requirements.

The proposed alterations to current paragraph (1) would reduce the minimum size requirements for harvest of cultivated oysters, from 2.5 inches to two inches. The current COM rules stipulate a minimum size limit of 2.5 inches 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 can be readily distinguished from wild oysters, the minimum size limit can be reduced, which not only allows cultivated oysters to be marketed more quickly, but also introduces additional market opportunities for the regulated community by creating the opportunity to sell smaller oysters that are popular in certain markets. The proposed 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 to ensure that all of them meet the minimum size limit.

The proposed amendment would revise 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 proposed amendment to paragraph (2) would also provide 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 proposed amendment would add new paragraph (5) to stipulate explicitly that oysters that are for whatever 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. Finally, proposed new paragraph (4) would clearly establish 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 proposed amendment to §58.353 also would alter 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 who would not be qualified for permit issuance. The proposed 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 proposed amendment to current subsection (p) would provide 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 often result in 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 issuing a new permit each time ownership changes. Therefore, the department is persuaded that a mechanism for transferring permits is reasonable and prudent. The proposed amendment would allow for the transfer of a permit upon completion of a transfer request and payment of a $200 transfer fee.

The proposed amendment also would alter 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 proposed amendment to current subsection (s) would consist 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 proposed amendment would alter 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. These authorizations allow for mechanisms to document permitted activities that transport oysters of various lengths outside of permitted sites, and to account for the possession of undersized oysters. The name change to Oyster Transport Authorization better encompasses what an authorization can cover, (i.e., not just oyster seed). The further proposed alterations better describe the process of requesting an authorization that is then reviewed and issued by the department. As with the current documentation, it would be required to accompany all non-harvest tagged oysters, oyster seed or oyster larvae that are being transported outside of a permitted area. The current documentation requirements (name, address, and if applicable, permit identifier of each permittee from whom the oysters were obtained; name, address, and permit identifier of each permittee to whom the oyster seed or larvae is to be delivered; precise accounting for and description of all containers in possession) would remain as is. The proposed amendment also would create a mechanism for oysters to be temporarily relocated outside of a permitted area for tumbling and sorting. A common oyster mariculture practice, tumbling and sorting 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 temporarily for tumbling and sorting, provided that 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 proposed 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 proposed amendment to §58.355, concerning Permit Application, would alter 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, the notices for which are by newspaper publication. Because the Texas coast is lengthy and for the most part consists of small communities, newspaper publication is not as efficient as electronic notification. The department believes it is more efficient to provide all notifications via the department's website and to have the option of conducting the required public meetings virtually or in person.

The proposed amendment to §58.356, concerning Renewal, would alter the current provisions to eliminate confusion 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 proposed 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.

Hanna Bauer, Policy and Education Team Lead, Coastal Fisheries Division, has determined that for each of the first five years that the rule as proposed is in effect, there will be minimal additional fiscal implications to state or local government as a result of administering the rule as proposed, as department personnel currently allocated to the administration and enforcement of the Cultivated Oyster Mariculture Program will continue to administer and enforce the rules as part of their current job duties. The additional implications consist of possible revenue resulting from imposition of the $200 fee imposed by the proposed rules for transfer of a permit. That fee is established at the same cost as the application fee because a transfer request would require an updated application. The fee is based on the administrative cost of implementing a transfer between two parties, which would include the issuance and oversight to determine that all previous provisions of the permit are in compliance at the time of transfer.

Ms. Bauer also has determined that for each of the first five years that the rules as proposed are in effect, the public benefit anticipated as a result of enforcing or administering the proposed rule will be enhancement and further development of a growing industry, the ecological benefits provided by oysters in public waters, and the production of oysters for public consumption.

To ensure that this analysis captures every small or micro-business affected by the proposed rules, the department assumes that most, if not all persons who hold a COM permit qualify as small or micro-businesses. Department data indicate that there are currently 17 fully permitted and nine conditionally approved cultivated oyster mariculture sites.

As noted earlier in this preamble, the rules as proposed would implement a $200 fee for transfer of a permit. The price of the fee is meant to recover the administrative costs to the department of recordkeeping, compliance, notifications, and processing.

Several alternatives were considered to achieve the goals of the proposed rules while reducing potential adverse impacts on small and micro-businesses and persons required to comply.

One alternative was to maintain status quo. This alternative was rejected because the regulated community has requested alteration of the current rules to allow for permit transfers and the department has determined that it is reasonable and practicable to allow permit transfers.

Another alternative was to allow permit transfers at no cost to the permittee. This alternative was rejected because implementing a transfer between two parties, which would include the issuance and oversight to determine that all previous provisions of the permit are in compliance at the time of transfer, will require very similar administrative costs as the original issuance.

The department has determined that the rules as proposed will not result in adverse impacts to rural communities, as the rules do not directly regulate any rural community.

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 directly impact local economies.

The department has determined that Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rules.

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.

In compliance with the requirements of Government Code, §2001.0221, the department has prepared the following Government Growth Impact Statement (GGIS). The rules as proposed, if adopted, will neither create nor eliminate a government program; not result in an increase or decrease in the number of full-time equivalent employee needs; not result in a need for additional General Revenue funding; affect the amount of a fee (by imposing a $200 fee for permit transfers); create a new regulation (by creating a process to transfer a permit); not expand an existing regulation; neither increase nor decrease the number of individuals subject to regulation; and not positively or adversely affect the state's economy.

The department has determined that the proposed rules are in compliance with Government Code §505.11 (Actions and Rule Amendments Subject to the Coastal Management Program).

Comments on the proposed rule may be submitted to Michaela Cowan, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-8575; email: cfish@tpwd.texas.gov; or via the department website at www.tpwd.texas.gov.

SUBCHAPTER E. CULTIVATED OYSTER MARICULTURE

31 TAC §§58.352, 58.353, 58.355, 58.356

The amendments are proposed 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.

The proposed amendments affect Parks and Wildlife Code, Chapter 75.

§58.352.Definitions.

When used in this subchapter, the following words and terms shall have the following meanings, except where the context clearly indicates otherwise. All other words and terms used in this subchapter shall have the meanings assigned by the Parks and Wildlife Code.

(1) Administratively complete--An application for a permit or permit renewal that contains all information requested by the department, as indicated on the application form, without omissions.

(2) Approved area--As defined by Texas Health and Safety Code, §436.002(1).

(3) Conditionally Approved area--As defined by Texas Health and Safety Code, §436.002(7).

(4) [~~(2)~~] Container--Any bag, sack, box, crate, tray, conveyance, or receptacle used to hold, store, or transport oysters possessed under a permit issued under this subchapter.

(5) Cultivated Oyster Mariculture Harvest Authorization (harvest authorization)--A yearly authorization to allow the harvest of mariculture oysters.

(6) [~~(3)~~] Cultured oyster mariculture facility (facility)--Any building, cage, or other infrastructure within a permitted area.

(7) [~~(4)~~] Gear tag--A tag composed of material as durable as the device to which it is attached.

(8) Hatchery--A facility that spawns oyster broodstock.

(9) [~~(5)~~] Infrastructure--A building, platform, dock, vessel, cage, nursery structure, or any other apparatus or equipment within a permitted area.

(10) [~~(6)~~] Larvae--The free-swimming, planktonic life stage of an oyster.

(11) [~~(7)~~] National Shellfish Sanitation Program (NSSP)--The cooperative program administered by the United States Food and Drug Administration (USFDA) for the sanitary control of shellfish produced and sold for human consumption in the United States and adopted by rule of the Department of State Health Services.

(12) [~~(8)~~] Nursery structure--A tank or chamber or system of tanks or chambers or other, similar devices in which a cultivated oyster is grown.

(13) [~~(9)~~] Oyster seed--Shellstock one inch or less in length [~~of less than legal size~~].

(14) [~~(11)~~] Permit Identifier (permit ID)--A unique alphanumeric identifier issued by the department to a permittee holding a Cultivated Oyster Mariculture permit.

(15) [~~(10)~~] Permitted area--The geophysical and/or geographical area identified in a permit where cultivated oyster mariculture activities are authorized.

(16) [~~(12)~~] Permittee--A person who holds a permit issued under this subchapter.

(17) [~~(13)~~] Prohibited Area--As defined by Texas Health and Safety Code, §436.002(27).

(18) [~~(14)~~] Restricted Area--As defined by Texas Health and Safety Code, §436.002(30).

(19) [~~(15)~~] Restricted visibility--Any condition in which visibility is restricted by fog, mist, falling snow, heavy rainstorm, sandstorms, or any other similar causes.

(20) [~~(16)~~] Shellstock (stock)--Live eastern oysters (Crassotrea virginica) in the shell.

(21) [~~(17)~~] Wild-caught oyster--An oyster harvested from natural oyster beds.

§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. [~~that person either:~~]

~~[(1) physically possesses a valid permit issued by the department authorizing the activity; or]~~

~~[(2) is acting as a subpermittee as provided in this subchapter.]~~

(b) A Cultivated Oyster Mariculture (COM) Grow-out Permit authorizes the permittee [~~Permit (COMP) authorizes a person~~] to purchase, receive, grow, and sell cultivated oysters.

(c) A Cultivated Oyster Mariculture (COM) Nursery-Hatchery Permit authorizes a permittee to: [~~A Cultivated Oyster Mariculture Permit--Nursery Only (nursery permit) authorizes a person to purchase, receive, and grow oyster seed and larvae, and sell oyster seed to a COMP permittee.~~]

(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) [~~(e)~~] The period of validity for a permit issued under this subchapter is 10 years, subject to the limitations of this subchapter.

(g) [~~(f)~~] Unless otherwise specifically authorized in writing by the department, one year from the date of issuance of a COM Grow-Out Permit [~~COMP~~] 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) [~~(g)~~] 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 [in] Texas waters and propagated in a permitted Nursery-Hatchery [~~hatchery~~] located in Texas.

(1) The department may authorize a person permitted under this subchapter to, on or before December 31, 2033 [~~December 31, 2027~~], import:

(A) [~~triploid,~~] tetraploid seed, larvae, and/or [~~and or~~] semen/eggs (germplasm) produced in department-approved [~~permitted~~] 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) [~~(B)~~] 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

(3) on a vessel operating under a permit issued under this subchapter.

(j) [~~(h)~~] 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) [~~(i)~~] The holder of a COM Permit (Grow-out or Nursery-Hatchery) [~~COMP or nursery permit~~] 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) [~~(j)~~] 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) [~~(k)~~] 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) [~~(l)~~]Harvest Requirements [~~Size limit~~].

(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. 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.

~~[(1) No person may remove or cause the removal of any oyster less than 2.5 inches in length (measured along the greatest length of the shell) from a COMP permitted area.]~~

[(2) Oysters greater than one inch in length (as measured along the greatest length of the shell) produced under a nursery permit in waters classified as a Restricted Area must be transferred to a DSHS-approved depuration area and held in that depuration area for a minimum of 120 days before harvest.]

[(3) No person may remove or cause the removal of oysters obtained by a COMP from a nursery facility located in waters classified as a Prohibited or Restricted Area until a minimum of 120 days following the date of transfer to the COMP.]

(o) [~~(m)~~] Harvest of oysters under this subchapter is unlawful between sunset and [~~30 minutes after~~] sunrise.

(p) [~~(n)~~] 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 [~~subpermittee~~] 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[~~possess~~ ] on their person a valid permit and subpermittee list in physical or electronic format.[:]

~~[(A) a legible copy of the appropriate permit under which the activity is being performed; and]~~

[(B) a completed subpermittee authorization. The subpermittee authorization shall be on a form provided or approved by the department and shall be signed and dated by both the permittee and the subpermittee.]

(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) [~~(o)~~] 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.) [~~must be installed~~] 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) [~~(p)~~] Transfer of Permit. The department may approve the transfer of a permit. [~~Permits shall not be transferred or sold.~~]

(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) [~~(q)~~] 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) [~~(r)~~] 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) [~~(s)~~] It is unlawful for any person to harvest [~~remove or cause the removal of~~] oysters from a COM Grow-Out [~~COMP~~] area for purposes of delivery and/or [~~and~~] 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. [In addition to the tagging requirements imposed by the NSSP, the tag must clearly identify the destination, by permit identifier and/or business name and physical address, to which the shellstock is to be delivered.]

(v) [~~(t)~~] Except as provided by subsection (u) [~~(s)~~] of this section for harvested oysters transported for delivery and/or [~~and~~] 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: [~~completed Oyster Seed Transport Document.~~]

(1) [An] Oyster [~~Seed~~] Transport Authorization. [~~Document must:~~]

(A) An Oyster Transport Request must be submitted to the department prior to the proposed transport date and:

(i) be on a form provided or approved by the department;

(ii) [~~(B)~~] contain the name, address, and, if applicable, permit identifier [~~of each person~~] from whom the oysters, oyster seed, or oyster larvae were [~~was~~] obtained;

(iii) [~~(C)~~] contain the name, address, and permit identifier [~~of each permittee~~] to whom the oyster, oyster seed, or oyster larvae are [is] to be delivered; and

(iv) [~~(D)~~] precisely account for and describe all containers in possession.

(B) [~~(2)~~] 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. [Each Oyster Seed Transport Document shall bear a numeric or alphanumeric unique identifier supplied by the permittee. Identifiers under this subsection must be systematic and sequential and no identifier may be used more than once.]

(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.

(w) [~~(u)~~] 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.

§58.355.Permit Application.

(a) An applicant for a permit under this subchapter must submit an administratively complete application to the department. The department will not review an application that is not administratively complete.

(b) The department will place notification on the departmental website [~~publish notice~~] of the application for a permit under this subchapter and provide opportunity for public comment. The department will consider all public comment relevant to matters under the jurisdiction of the department.

(c) For proposed facilities that will be within or partially within public water, the department will hold a public meeting virtually or in person in the city or municipality closest to the proposed permitted area and provide an opportunity for [~~to take~~] public comment on the proposed project. The department will publish notice of the public meeting on the departmental website at least two weeks prior to the meeting[, in print or electronically, in the daily newspaper of general circulation closest to the proposed operational area. Costs of newspaper notice are the responsibility of the applicant and no permit will be issued until the department has received payment for the required notice].

(d) An application for a permit under this subchapter shall be accompanied by the applicable permit fee established in §53.13 of this title (relating to Business License and Permits (Fishing)).

(1) The department shall assess a nonrefundable annual fee based on the size of the permitted area for which a COM Grow-Out or Nursery-Hatchery [~~COMP or nursery~~] permit is issued. The fee is as specified under §53.13 of this title [~~for a COMP~~].

(2) For Nursery-Hatchery [~~nursery~~] structures located on public waters, a surcharge in addition to the fee imposed by paragraph (1) of this subsection shall be assessed as specified under §53.13 of this title.

(3) The fees established in this subsection may [~~shall~~] be recalculated at three-year intervals [~~beginning on the effective date of the permit~~] and proportionally adjusted to any change in the Consumer Price Index.

(4) The fees established by this subsection are due annually by the anniversary of the date of permit issuance.

§58.356.Renewal.

The department may renew a permit under this subchapter, provided the permittee has submitted an administratively complete application for permit renewal on a form provided or approved by the department, accompanied by the application [~~permit renewal~~] fee specified in §53.13 of this title (relating to Business License and Permits (Fishing)).

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on September 23, 2024.

TRD-202404553

James Murphy

General Counsel

Texas Parks and Wildlife Department

Earliest possible date of adoption: November 3, 2024

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

31 TAC §§58.354, 58.359, 58.360

The repeals are proposed 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.

The proposed repeals affect Parks and Wildlife Code, Chapter 75.

§58.354.Oyster Seed Hatchery.

§58.359.Agency Decision to Refuse to Issue or Renew Permit; Review of Agency Decision.

§58.360.Prohibited Acts.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on September 23, 2024.

TRD-202404554

James Murphy

General Counsel

Texas Parks and Wildlife Department

Earliest possible date of adoption: November 3, 2024

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

CHAPTER 61. DESIGN AND CONSTRUCTION

SUBCHAPTER A. CONTRACTS FOR PUBLIC WORKS

31 TAC §61.21

The Texas Parks and Wildlife Department (the department) proposes an amendment to 31 TAC §61.21, concerning Contracts for Public Works. The proposed amendment would delegate authority to the executive director of the department to award "job order contract" jobs, tasks, and purchase orders in excess of $1,000,000 or greater under the provisions of Government Code, Chapter 2269, to qualifying projects. The proposed amendment would also delegate authority to the department's Infrastructure Division director and deputy director for awards in excess of $500,000 but not more than $1,000,000.

Under Parks and Wildlife Code, §11.0171, the commission is required to adopt by rule policies and procedures consistent with applicable state procurement practices for soliciting and awarding contracts for project management, design, bid, and construction administration consistent with Subchapter A, Chapter 2254, Government Code.

Under Government Code, §2269.401, "job order contracting" is a procurement method used for maintenance, repair, alteration, renovation, remediation, or minor construction of a facility when the work is of a recurring nature but the delivery times, type, and quantities of work required are indefinite. Government Code, §2269.403, requires the governing body of a governmental entity to approve each job, task, or purchase order under a blanket job order contract that exceeds $500,000 in value. The legislature established the statutory threshold of $500,000 years ago. Since then, the planning, procurement, and construction costs for maintenance activities have increased to the extent that projects in excess of $500,000 in value are now numerous and commonplace. Government Code, §2269.053, provides that a governing body of a governmental entity may delegate its authority under Chapter 2269 regarding an action authorized or required by that chapter to a designated representative, committee, or other person. To reduce the amount of time for project delivery, staff seeks an alternative to the cumbersome and time-consuming process of presenting every minor construction/repair project to the commission for funding approval.

Proposed new §61.21(c) would delegate authority to the executive director of the department to award job order contract jobs, tasks, and purchase orders of $1,000,000 or greater under the provisions of Government Code, Chapter 2269, to qualifying projects.

Proposed new 61.21(d) would delegate authority to the division director and deputy division director to award job order contract jobs, tasks, and purchase orders in excess of $500,000 but no more than $1,000,000 under the provision of Government Code, Chapter 2269, Subchapter I to qualifying projects.

Mr. Macdonald also has determined that for each of the first five years that the rule as proposed is in effect the public benefit anticipated as a result of enforcing or administering the proposed rule will be more efficient administrative processes relating to construction and maintenance contracting, which in turn will result in faster completion of projects that benefit the public.

There will be no adverse economic effect on persons required to comply with the rule 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 on small businesses and micro-businesses. As required by Government Code, §2006.002(g), in April 2008, the Office of the Attorney General issued guidelines to assist state agencies in determining a proposed rule's potential adverse economic impact on small businesses. These guidelines state that "[g]enerally, there is no need to examine the indirect effects of a proposed rule on entities outside of an agency's regulatory jurisdiction." The guidelines state that an agency need only consider a proposed rule's "direct adverse economic effects" to small businesses and micro-businesses to determine if any further analysis is required. The guidelines also list examples of the types of costs that may result in a "direct economic impact." Such costs may include costs associated with additional recordkeeping or reporting requirements; new taxes or fees; lost sales or profits; changes in market competition; or the need to purchase or modify equipment or services.

The department has determined that the rule as proposed will not affect small businesses, micro-businesses, or rural communities, since the rule does not impose any direct economic impacts on any business or community. Therefore, the department has not prepared the economic impact statement or regulatory flexibility analysis described in Government Code, Chapter 2006.

The department has determined that Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rule.

The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rule.

In compliance with the requirements of Government Code, §2001.0221, the department has prepared the following Government Growth Impact Statement (GGIS). The rule as proposed, if adopted, will neither create nor eliminate a government program; not result in an increase or decrease in the number of full-time equivalent employee needs; not result in a need for additional General Revenue funding; not affect the amount of any fee; not create a new regulation; not expand, limit, or repeal an existing regulation; not increase the number of individuals subject to regulation; and neither positively nor adversely affect the state's economy.

Comments on the proposed rule may be submitted to Darrell Owens, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4660; email: darrell.owens@tpwd.texas.gov or via the department website at www.tpwd.texas.gov.

The amendment is proposed under the authority of Parks and Wildlife Code, §11.0171, which requires the commission to adopt by rule policies and procedures consistent with applicable state procurement practices for soliciting and awarding contracts, and Government Code §2269.053, which authorizes the governing body of a governmental entity to delegate by rule its authority to approve job order contract jobs, tasks, or purchase orders that exceed $500,000.

The proposed amendment affects Parks and Wildlife Code, Chapter 11.

§61.21.Authority to Contract.

(a) The department shall solicit, evaluate, negotiate, select, and award contracts for construction projects by means of a fair and impartial method as authorized by applicable law and department policy.

(b) The department shall ensure that any method used to solicit, evaluate, select, and award a contract for construction results in the best value for the department.

(c) The executive director of the department is authorized to award job order contract jobs, tasks, and purchase orders in excess of $1,000,000 under the provisions of Government Code, Chapter 2269, Subchapter I, for any qualifying project.

(d) The director and deputy director of the department's Infrastructure Division are authorized to award job order contract jobs, tasks, and purchase orders in excess of $500,000 but not more than $1,000,000 under the provisions of Government Code, Chapter 2269, Subchapter I, for any qualifying project.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on September 23, 2024.

TRD-202404557

James Murphy

General Counsel

Texas Parks and Wildlife Department

Earliest possible date of adoption: November 3, 2024

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