(a) No person may engage in cultivated oyster mariculture in this state unless 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 Permit (COMP) authorizes a person to purchase, receive, grow, and sell cultivated oysters.     
      (c) 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.     
      (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) The period of validity for a permit issued under this subchapter is 10 years, subject to the limitations of this subchapter.     
      (f) Unless otherwise specifically authorized in writing be the department, one year from the date of issuance of a 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.     
      (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 in Texas waters and propagated in a hatchery located in Texas.      
        (1) The department may authorize a person permitted under this subchapter to, on or before December 31, 2027, import:                  (A) triploid, tetraploid seed, larvae, and or semen/eggs (germplasm) produced in permitted out-of-state hatcheries located along the Gulf of Mexico for use in cultivated oyster mariculture in this state; and/or                   (B) seed, larvae semen/eggs (germplasm) produced from Texas broodstock at 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.       
      (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.       
      (i) The holder of a 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).        
      (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).       
      (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.     
      (l) Size limit.      
        (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.       
      (m) Harvest of oysters under this subchapter is unlawful between sunset and 30 minutes after sunrise.     
      (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 subpermittee named on the permit.      
        (1) A permittee may designate subpermittees to perform permitted activities in the absence of the permittee.       
        (2) At all times that a subpermittee is conducting permitted activities, the subpermittee shall possess on their person:                  (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.       
      (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 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.       
      (p) Permits shall not be transferred or sold.     
      (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.     
      (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 address of the permittee and the permit identifier of the permitted area. The information on a gear tag must be legible.     
      (s) It is unlawful for any person to remove or cause the removal of oysters from a COMP area for purposes of delivery and sale 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. 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.     
      (t) Except as provided by subsection (s) of this section for oysters transported for delivery and sale, it is unlawful for any person to possess oyster seed or larvae outside of a permitted area unless the person also possesses a completed Oyster Seed Transport Document.      
        (1) An Oyster Seed Transport Document must:                  (A) be on a form provided or approved by the department;                   (B) contain the name, address and, if applicable, permit identifier of each person from whom the oyster seed or larvae was obtained;                   (C) contain the name, address, and permit identifier of each permittee to whom the oyster seed or larvae is to be delivered; and                   (D) precisely account for and describe all containers in possession.         
        (2) 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.       
      (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.     
     Source Note:        The provisions of this §58.353 adopted to be effective August 24, 2020, 45 TexReg 5916