Presenter: Joedy Gray

Commission Agenda Item No. 9
Action
Health Certification of Native Shellfish and Harmful or Potentially Harmful
Exotic Fish and Shellfish Regulations
April 1998

I. Discussion: Staff is proposing amendments concerning Harmful or Potentially Harmful Exotic Fish, Shellfish nd Aquatic Plants rules, and proposed new rules concerning the Health Certification of Native Shellfish

Proposed new §69.75 will add the definitions for the terms "certified inspector," "manifestations of disease," "disease," "disease-free," "private facility," "waste" and "water in the state." Proposed new §69.77 will require individuals in possession of native penaeid shrimp for aquaculture or scientific research purposes to quarantine their facilities if they observe manifestations of disease. It will also allow such individuals the option to choose between requesting an inspection from a "certified inspector" and submitting samples of shrimp for disease analysis.

Proposed amendments to §57.111 will add definitions for the terms "certified inspector" and "manifestations of disease" and clarify the definition of "disease-free."

Proposed amendments to §57.112 will make it an offense to harvest grass carp from public water for which a valid Triploid Grass Carp Permit is currently in effect.

Proposed amendments to §57.113 will allow individuals to possess grass carp from public waters that have not been permitted for triploid grass carp without a permit, if the intestines of the fish have been removed. Additional amendments will delete the Japanese eel Anguilla japonicus from the list of harmful or potentially harmful exotic fish that may be possessed, propagated, transported or sold with a permit, and would exempt from the prohibition any person who, as of the effective date of these rules, holds a valid permit authorizing these authorities.

Proposed amendments to §57.114 will allow permit holders the choice between an inspection by a "certified inspector" and laboratory testing prior to commencing any discharge.

The proposed new rules were published in the Texas Register. Staff will address public comments concerning the proposed changes prior to the April Commission Meeting.

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

"The Texas Parks and Wildlife Commission adopts proposed amendments and new rules concerning Health Certification of Native Shellfish and Harmful or Potentially Harmful Exotic Fish, Shellfish and Aquatic Plants as shown in Exhibit A."

Attachments - 2

1. Exhibit A - Proposed New Rules and Amendments Concerning Native Shellfish and Exotic Fish and Shellfish
2. Exhibit B - Fiscal Note

(Exhibit B available upon request.)

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Commission Agenda Item No. 9
Exhibit A

Proposed Preamble

1. Introduction.

The Texas Parks and Wildlife Department proposes amendments to §§57.111-57.114 concerning harmful or potentially harmful exotic fish, shellfish and aquatic plants. Section 57.111 is amended to add definitions for the terms "certified inspector" and "manifestations of disease," and to clarify the definition of "disease-free."

Proposed amendments to §57.112 will make it an offense to harvest grass carp from public water for which a valid Triploid Grass Carp Permit is currently in effect. Amendments to §57.113 stipulate that individuals may possess exotic harmful or potentially harmful fish or shellfish, other than grass carp, if the intestines have been removed and further propose amendment that stipulates grass carp may be harvested from public waters that have not been permitted for triploid grass carp, if the intestines have been removed. Further proposed amendment of §57.113 would delete Anguilla japonicus from the list of harmful or potentially harmful exotic fish that may be possessed, propagated, transported or sold with a permit and would exempt from the prohibition any person who, as of the effective date of these rules, holds a valid permit authorizing the above activities.

Proposed amendment of §57.114 would allow permit holders who must institute quarantine conditions as a result of observing manifestations of disease to choose between requesting an inspection from a "certified inspector" or submitting samples of shellfish to a laboratory for disease analysis. The amended section also allows permit holders who wish to discharge waste into or adjacent to water in the state to make the same choice between inspection by a "certified inspector" and laboratory testing prior to commencing any discharge. The intent of §57.114(f) is that inspection of exotic shellfish for disease shall occur prior to discharge of any water which has been in contact with the exotic shellfish at any time. Thus, even if water is not discharged directly into or adjacent to water in the state, for example, if it is routed from grow out structures through ditches, retention ponds or other structures prior to discharge, the animals which occupied that water must still be tested.

2. Fiscal Note.

Robin Riechers, staff economist, has determined that during the first five years these sections as proposed are in effect there will be fiscal implications to state government as a result of administering and enforcing the sections. However, the extent of this effect is not determinable at this time. There will be no fiscal implications for units of local government.

3. Public Benefit - Cost Note.

Mr. Riechers also has determined that for the first five years these sections as proposed are in effect:

(A) The public benefit anticipated as a result of enforcement of and compliance with the sections will be increased protection of aquatic animal life from depletion due to disease.

(B) Entities, such as river authorities, water districts, private property owners, etc., which bear the cost of aquatic vegetation control may experience financial savings as a result of grass carp used versus other, more expensive forms of vegetation control. Additional costs may be incurred by entities or individuals who must comply with these rules. The Texas Parks and Wildlife Department has determined that the prohibition in §57.113 of the proposed rules will not have any adverse impact on small businesses since it includes an exemption from the rules for any businesses currently operating. Additionally, the testing requirements imposed by §57.114 will not have an adverse impact on small business since in most cases the decision whether or not to submit laboratory samples is up to the permit holder. In the case of a probable disease outbreak where the rule requires laboratory testing, the cost of the testing will be negligible in most cases. It is not possible to accurately determine whether the quarantine provisions of §57.114 as proposed will have an adverse economic impact on any particular small business or to accurately estimate what the extent of any impact might be. The effect, if any, is totally dependent on individual circumstances. If no disease occurs on a facility, there will be no impact. If a disease occurs, the effect will vary depending on which disease occurs, the location of the facility, the design and management methods of the facility, what time of year the outbreak occurs, the species potentially affected by the disease, the current state of knowledge and technology related to disease containment and control and other factors.

(C) The Texas Parks and Wildlife Department has not filed a local impact statement with the Texas Employment Commission as this agency has determined that the sections as proposed will not impact local economies.

(D) TPWD has not prepared a Takings Impact Assessment for these rules because Government Code, §2007.003 provides an exception to the requirement for rules or proclamations adopted for the purpose of regulating or controlling nonindigenous or exotic aquatic species.

4. Request for Public Comments.

Comments on the proposed rules may be submitted to Mr. Joedy Gray, Inland Fisheries Division, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744. Comments may be faxed to Mr. Gray at (512) 389-4388. Written or faxed comments must be received no later than 5:00 p.m., Monday, April 13, 1998 in order to be considered.

5. Statutory Authority.

These amendments are proposed under Chapter 66, §66.007 of the Texas Parks and Wildlife Code which prohibits possession of exotic harmful or potentially harmful fish, shellfish or aquatic plants except as authorized by rule or permit, requires permittees to provide proof to the department of the disease free status of animals possessed under such permits and authorizes the department to make rules to carry out these provisions.

The proposed amendments affect Texas Parks and Wildlife Code §66.007.

§57.111. Definitions.

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

Certified Inspector - An employee of the Texas Parks and Wildlife Department or the Texas A&M Sea Grant College Program who has satisfactorily completed a department approved course in clinical analysis of shellfish.

Disease-Free - A status based on the result of an examination conducted by a department approved shellfish disease specialist which certifies a group of aquatic organisms as being free of disease.

Manifestations of disease - manifestations of disease include, but are not limited to, one or more of the following: heavy or unusual predator activity, empty guts, emaciation, rostral deformity, digestive gland atrophy or necrosis, gross pathology of shell or underlying skin typical of viral infection, fragile or atypically soft shell, gill fouling, or gill discoloration.

Waste - waste shall have the same meaning as in Chapter 26, §26.001(6) of the Texas Water Code.

Water in the state - water in the state shall have the same meaning as in Chapter 26.001(5) of the Texas Water Code.

§57.112. General Rules.

(a)-(b) No change.

(c) It is an offense to possess grass carp taken from public waters for which a valid Triploid Grass Carp Permit is currently in effect.

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

§57.113. Exceptions.

(a) (No change.)

(b) A person may possess exotic harmful or potentially harmful fish or shellfish, exclusive of grass carp, without a permit, if the intestines of the fish or shellfish have been removed.

(c) A person may possess grass carp harvested from public waters that have not been permitted for triploid grass carp, without a permit, if the intestines have been removed.

(d) [(c)] A fish farmer who holds a valid exotic species permit issued by the department may possess, propagate, transport or sell silver carp (Hypophthalmicthys molitrix), black carp (Mylophryngogon piceus, also commonly known as snail carp), bighead carp (Aristichthys/Hypophthalmicthys nobilis), [Japanese eel (Anguilla japonicus)], blue tilapia (Tilapia aurea), Mozambique tilapia (Tilapia mossambica), Nile tilapia (Tilapia nilotica), or hybrids between the three tilapia species, as provided by conditions of the permit and these rules.

(e)[(d)] A fish farmer who holds a valid exotic species permit issued by the department may possess, propagate, transport, or sell Pacific white shrimp (Penaeus vannamei) provided the exotic shellfish meet disease free certification requirements listed in §57.114 of this title (relating to Health Certification of Exotic Shellfish) and as provided by conditions of the permit and these rules.

(f)[(e)] An operator of a wastewater treatment facility in possession of a valid exotic species permit issued by the department may possess and transport water hyacinth (Eichornia crassipes) to their facility only for the purpose of wastewater treatment.

(g)[(f)] A person may possess Mozambique tilapia in a private pond subject to compliance with §57.116(d) of this title (relating to Exotic Species Transport Invoice).

(h)[(g)] The holder of a valid triploid grass carp permit issued by the department may possess triploid grass carp as provided by conditions of the permit and these rules.

(i)[(h)] A licensed retail or wholesale fish dealer is not required to have an exotic species permit to purchase or possess:

(1)-(2) (No change.)

(j)[(i)] The department is authorized to stock planktivorous fish including silver carp (Hypophthalmichthys molitrix) and bighead carp (Aristichthys/Hypophthalmichthys nobilis) if necessary in Lake Rita Blanca, Hartley County, in order to investigate their utility as biological agents to improve water quality and enhance fishery management.

(k)[(j)] The department is authorized to stock triploid grass carp into public waters in situations where the department has determined that there is a legitimate need, and when stocking will not affect threatened or endangered species, coastal wetlands, or specific management objectives for other important species.

(l)[(k)] A fish farmer who holds a valid exotic species permit issued by the department may possess, propagate, transport and sell Pacific blue shrimp (Penaeus sylirostris) provided the exotic shellfish are cultured under quarantine conditions in private facilities located outside the harmful or potentially harmful exotic species exclusion zone, and meet disease free certification requirements listed in §57.114 of this title (relating to Health Certification of Exotic Shellfish) and as provided by conditions of the permit and these rules

(m) Any person who, as of the effective date of these rules, holds a valid exotic species permit issued by the department to possess, propagate, transport or sell Anguilla japonicus may continue to conduct such activities as authorized by the conditions of the permit. The permit may not be transferred to any other person, site or entity.

§57.114. Health Certification of Exotic Shellfish.

(a)-(c) (No change.)

(d) Any person in possession of exotic shellfish stocks who observes one or more manifestations of disease shall:

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

(2) immediately quarantine the private facility, notify the department and submit samples of the affected shellfish to a department approved disease specialist for analysis. Results of the required analyses shall be forwarded to the department immediately upon receipt.

(e) Upon receiving a request from a permit holder under subsection (d), the department certified inspector shall inspect the private facility, complete an inspection report provided by the department and notify the department and the permit holder of the results.

(f) Before discharging any waste which at any time has been in contact with exotic shellfish into or adjacent to water in the state, the permittee shall have the private facility and a sample of the shellfish which are or were in contact with the waste inspected by a department certified inspector no more than 72 hours prior to discharge. The results of the inspection must be immediately submitted to the department on the department approved inspection form. If the results indicate the absence of any manifestations of disease, the permittee may discharge from the particular structure(s) which was inspected. If the results indicate the presence of one or more manifestations of disease, the permittee shall immediately place the private facility under quarantine and immediately submit samples of the shellfish from the affected portions of the facility to a department approved shellfish disease specialist for analysis. Results of the required analyses shall be forwarded to the department immediately upon receipt.

(g) A private facility quarantined under subsections (d) or (f) shall remain under quarantine condition until the department removes the quarantine in writing or authorizes an appropriate disposal method based on the required analyses.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be a valid exercise of the agencies legal authority.

Issued in Austin, Texas on

William D. Harvey, Ph.D.
Regulatory Coordinator
Texas Parks and Wildlife Department
1-800-792-1112, extension 4642 or
512-389-4642

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