Texas Register, Volume 45, Number 16, Pages 2459-2596, April 17, 2020 Page: 2,493
2461-2596 p. ; 28 cm.View a full description of this periodical.
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in a final conviction; the length of time between the most recent
final conviction or administrative violation and the application for
enrollment or renewal; whether the final conviction, administra-
tive violation, or other offenses or violations were the result of
negligence or intentional conduct; whether the final conviction
or administrative violations resulted from the conduct committed
or omitted by the applicant, an agent of the applicant, or both; the
accuracy of information provided by the applicant; for renewal,
whether the applicant agreed to any special provisions recom-
mended by the department as conditions; and other aggravating
or mitigating factors.
The amendment also provides for department review of a de-
cision to refuse permit issuance or renewal. The amendment
requires the department to notify an applicant not later than the
10th day following a decisionrto refuse permit issuance or denial
and to set a time and date for conducting a review of an agency
decisiongto refuse permit issuance or renewal within 10 days of
receiving a request for a review. The amendment stipulates that
a review panel consist of three department managers with ap-
propriate expertise in the activities conducted under the permit
in question. The new provision is intended to help ensure that
decisions affecting permit issuance and renewal are correct.
Proposed new 58.360, concerning Prohibited Acts, would iden-
tify specific acts that constitute violations of the proposed new
subchapter.
Proposed new paragraph (1) would make it a criminal act to pos-
sess a commercial oyster dredge or oyster tongs within a permit-
ted area or aboard a vessel transporting oysters under the pro-
visions of this subchapter. The provision is necessary because
the department wishes to employ measures to safeguard native
oyster populations from exploitation by unscrupulous persons.
Prohibiting the possession of common oystering gear on board
a vessel transporting farmed oysters would obviate the opportu-
nity for persons to engage in the harvest of native oysters while
transporting farmed oysters. For similar reasons proposed new
paragraph (2) would create an offense for commingling or allow-
ing the commingling of wild-caught and farmed oysters.
Proposed new paragraphs (3) and (4) clarify that it is an offense
for failing to notify the department within 24 hours upon the dis-
covery of a disease condition within a permitted facility and for
failing to notify the department within 24 hours upon discovery
of any condition that could result in the unintentional release of
shellstock or larvae. As discussed previously in this preamble
with respect to 58.353(i), the department wishes to prevent the
release of farmed oysters and oyster diseases to wild popula-
tions.
Proposed new paragraph (5) clarifies creates an offense for fail-
ing to maintain all corner markers of the permitted area of a fa-
cility within public water as prescribed by the proposed new sub-
chapter, which is necessary for the reasons described earlier in
this preamble with respect to proposed new 58.353(o).
Proposed new paragraph (6) would create an offense for failing
to remove all enclosures and infrastructure from public waters
within 60 calendar days of permit expiration or revocation. Under
the provisions of proposed new 58.353(q), permittees would be
required to remove, at the expense of the permittee, all contain-
ers, enclosures and associated infrastructure from public waters
within 60 calendar days of permit expiration or revocation. The
proposed new paragraph would make it a criminal offense not to
do so.Proposed new paragraph (7) would make it an offense to operate
a COMP or nursery facility except as specified by this subchap-
ter and the provisions of a permit. The provision is intended to
ensure that criminal liability is not limited to the specific offenses
identified throughout the proposed new subchapter, but to any
violation of the proposed new subchapter or the provisions of a
permit issued under the proposed new subchapter.
Finally, proposed new paragraph (8) would make it an offense to
operate a COMP or nursery facility without all authorizations and
permits required by any federal, state, or local governmental au-
thority. Possession of all necessary authorizations and permits
is a predicate for facility operation. The department believes that
continuing to operate a facility without one or more authorizations
or permits constitutes a criminal act.
Proposed new 58.361, concerning Violations and Penalties,
would provide that a person who violates a provision of this sub-
chapter ora provision of a permit issued under this subchapter
commits an offense punishable by the penalty prescribed by the
Parks and Wildlife Code, 75.0107. Violations and penalties are
prescribed by statute and the department believesdit is prudent to
reference the applicable statutory provisions for clarity. Finally,
the proposed new section provides that a permit issued under
this section is not a defense to prosecution for any conduct not
specifically authorized by the permit. The department believes
it is prudent to reinforce that a permit issued under this section
does not relieve a permittee or subpermittee of criminal respon-
sibility as the offenses prescribed by statute constitute a Class
B Parks and Wildlife Code Misdemeanor.
Robin Riechers, Coastal Fisheries Division Director, has deter-
mined that for each of the first five years that the new rules as
proposed are in effect, there will be no fiscal implications to state
or local governments as a result of administering or enforcing the
rules. The fees imposed by the proposed new rules will recover
the agency's cost of routine administration and enforcement.
Mr. Riechers also has determined that for each of the first five
years that the rules as proposed are in effect, the public bene-
fit anticipated as a result of enforcing or administering the rules
as proposed will be the discharge of the legislature's direction
under Parks and Wildlife Code, 75.0103(a) to establish a pro-
gram governing cultivated oyster mariculture and the discharge
of the agency's general duty to protect and conserve the aquatic
resources of the state and provide for water safety.
There will be adverse economic effects on persons required to
comply with the rules as proposed, consisting of the costs to pre-
pare the operational plan and natural resource survey required
by the rules; fees; costs for gear tags; and the cost of the public
notice required by the rules. The estimated maximum proba-
ble annual economic costs for persons operating a COMP are
$2,050 for the first year ($200 for the permit application, $450
per acre per year; approximately $200 for gear tags; $500 for
the Operation Plan; $500 for the natural resource survey; and
$200 for the public notice) and $450 each year thereafter ($450
per acre per year). This amount would be less for a COMP lo-
cated on private property, since the inspection fee would be $170
and the per-acre fee for use of public water would not apply. The
probable annual economic costs for a person operating a nurs-
ery facility are estimated to be $370 for the first year ($200 for
the initial application and $170 per year plus $0.023 per square
foot).
Under the provisions of Government Code, Chapter 2006, a
state agency must prepare an economic impact statementPROPOSED RULES April 17, 2020 45 TexReg 2493
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Texas. Secretary of State. Texas Register, Volume 45, Number 16, Pages 2459-2596, April 17, 2020, periodical, April 17, 2020; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth1289739/m1/35/: accessed July 17, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.