Commission Agenda Item No. 6
Presenter: Ken Kurzawski

Action
Exotic Species Rule Amendments regarding Transport of Tilapia
and Triploid Grass Carp
August 22, 2013

  1. Executive Summary: Staff seeks adoption of proposed amendments to rules governing the transport of harmful or potentially harmful exotic fishes, specifically Mozambique tilapia and triploid grass carp. The proposed amendments would:
    • allow the transport of live Mozambique tilapia without a permit for purposes of stocking private ponds or facilities or live triploid grass carp by a person who has a triploid grass carp permit, provided the person transporting the tilapia or triploid grass carp has acquired an exotic species transport invoice from a person who possesses an exotic species permit;
    • reinforce the prohibition against removing live tilapia and triploid grass carp from these private locations; and
    • add the requirement that the destination address for the tilapia and triploid grass carp be added to the exotic species transport invoice.
  2. Discussion: The department has received requests to allow the transport of Mozambique tilapia and triploid grass carp from a permitted seller to a private pond or facility by the person who is acquiring the tilapia or grass carp. Under current rule, only a person who holds an exotic species permit may transport live Mozambique tilapia or triploid grass carp. The department has determined that since the rules already allow the possession of tilapia without a permit, there is no reason not to allow their transport under documented circumstances. Possession of triploid grass carp is covered under a permit. Therefore, the amendment would allow the transport of live triploid grass carp or Mozambique tilapia without a permit for purposes of stocking private ponds or facilities, provided the person transporting the grass carp or tilapia has acquired an exotic species transport invoice from a person who possesses an exotic species permit.
  3. Recommendation: Staff recommends that the Commission adopt the following motion:
    “The Texas Parks and Wildlife Commission adopts amendments to §§57.113, 57.115, and 57.116 concerning Harmful or Potentially Harmful Fish, Shellfish, and Aquatic Plants, with changes as necessary to the proposed text as published in the July 12, 2013, issue of the Texas Register (38 TexReg 4499-4501).”

Attachments – 1

  1. Exhibit A—Proposed Rule

Commission Agenda Item No. 6
Exhibit A

HARMFUL OR POTENTIALLY HARMFUL

FISH, SHELLFISH, AND AQUATIC PLANT RULES

PROPOSAL PREAMBLE

1. Introduction.

         The Texas Parks and Wildlife Department proposes amendments to §§57.113, 57.115, and 57.116, concerning Harmful or Potentially Harmful Fish, Shellfish, and Aquatic Plants. The proposed amendments would, collectively, allow the transport of live Mozambique tilapia and triploid grass carp without a permit for purposes of stocking private ponds or facilities, provided the person transporting the tilapia or triploid grass carp has acquired an exotic species transport invoice from a person who possesses an exotic species permit.

         Under current §57.112, concerning General Rules, it is an offense for any person to release into the water of this state, import, sell, purchase, transport, propagate, or possess any species, hybrid of a species, subspecies, eggs, seeds, or any part of any species defined as a harmful or potentially harmful exotic fish, shellfish, or aquatic plant. Under §57.111, concerning Definitions, all species of genera Tilapia, Oreochromis, and Sarotherodon (which includes Mozambique tilapia) and grass carp (Ctenopharyngodon idella)  are designated as harmful or potentially harmful exotic fish. Under current §57.113, concerning Exceptions, Mozambique tilapia and triploid grass carp may be possessed by anyone in a private pond or facility, provided a copy of the exotic species transport invoice under which the fish were transported to the private pond or facility is retained.  However, under current §57.115, only a person who holds a valid exotic species permit or a commercial shipper acting for a permit holder may transport live Mozambique tilapia or triploid grass carp.  Current §57.116 sets out the requirements of the transport invoice.

         Mozambique tilapia are popular as forage fish in private ponds and for use in private, non-commercial fish-growing facilities. Triploid grass carp commonly are used as an alternative to chemical control of unwanted aquatic vegetation in ponds. The department has received requests to allow the transport of live Mozambique tilapia and triploid grass carp from a permitted seller to a private pond or facility by the person who is acquiring the fish. Under current rule, only a person who holds an exotic species permit or a commercial shipper acting on behalf of a permit holder may transport live Mozambique tilapia or triploid grass carp. The department has determined that since the rules already allow the possession of live Mozambique tilapia and triploid grass carp without a permit, there is no reason not to allow their transport under documented circumstances. Therefore, the amendment would allow the transport of live Mozambique tilapia or triploid grass carp without a permit for purposes of stocking private ponds or facilities, provided the person transporting the fish has acquired an exotic species transport invoice issued by the permittee.

         The proposed amendment to §57.113(i) would provide that a person may transport Mozambique tilapia or triploid grass carp to a private pond or facility, provide the person complies with the transport invoice requirements in §57.116.   The proposed amendment to §57.113(i) would also clarify that a Mozambique tilapia or triploid grass carp possessed in a private pond or facility may be removed from those premises only if gutted or beheaded.

         The proposed amendment to §57.115(a) would establish an additional exception to the prohibition on the transport of live harmful or potentially harmful exotic species for persons transporting Mozambique tilapia or triploid grass carp to a private pond or facility in compliance with the transport invoice requirements of §57.116(d).

         The proposed amendment to §57.116(a) would require that transport invoice also include add the address of the destination of the exotic species.  The proposed amendment to §57.116(d) would clarify that owners of private ponds “or facilities” may be covered by the provisions of §57.116(d).

2. Fiscal Note.

         Ken Kurzawski, Inland Fisheries Division Program Director, has determined that for each of the first five years that the rules as proposed are in effect, there will be no fiscal implications to state and local governments as a result of enforcing or administering the rules.

3. Public Benefit/Cost Note.

         Mr. Kurzawski also has determined that for each of the first five years the rules as proposed are in effect:

         (A) The public benefit anticipated as a result of enforcing or administering the rules as proposed will be rules that are user-friendly.

         (B) There will be no adverse economic effect on persons required to comply with the rules as proposed.

         (C) 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), 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 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 the proposed amendments will not impose any adverse economic effects on small businesses or microbusinesses. Accordingly, the department has not prepared a regulatory flexibility analysis under Government Code, Chapter 2006.

         (D) 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 impact local economies.

         (E) 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.

4. Request for Public Comment.

         Comments on the proposed rule may be submitted to Ken Kurzawski, Texas Parks and Wildlife Department 4200 Smith School Road, Austin, Texas, 78744; (512) 389-4591 (e-mail: ken.kurzawski@tpwd.state.tx.us).

5. Statutory Authority.

         The amendment is proposed under the authority of Parks and Wildlife Code, §66.007, which authorizes the department to make rules necessary to authorize the import, possession, sale, or introduction of harmful or potentially harmful exotic fish.

         The proposed amendment affects Parks and Wildlife Code, Chapter 66.

6. Rule Text.

         §57.113. Exceptions.

                 (a) – (h) (No change.)

                 (i) A person may transport Mozambique tilapia or triploid grass carp to a private pond or facility or possess Mozambique tilapia in a private pond or [private] facility subject to compliance with §57.116(d) of this title (relating to Exotic Species Transport Invoice). Mozambique tilapia and triploid grass carp possessed in a private pond or facility may be removed from those premises only if gutted or beheaded.

         §57.115. Transportation of Harmful or Potentially Harmful Exotic Species.

                 (a) Transport of live harmful or potentially harmful exotic species is prohibited except by:

                         (1) An aquaculturist in possession of a valid exotic species permit and an exotic species transport invoice;

                         (2) a commercial shipper acting for the permit holder in possession of an exotic species transport invoice; [or]

                         (3) persons holding harmful or potentially harmful exotic species pursuant to limitations of §57.113 of this title (relating to Exceptions); or

                         (4) persons transporting Mozambique tilapia or triploid grass carp to a private pond or facility subject to compliance with §57.116(d) of this title (relating to Exotic Species Transport Invoice).

                 (b) (No change.)

         §57.116. Exotic Species Transport Invoice.

                 (a) An exotic species transport invoice shall contain all the following information correctly stated and legibly written: invoice number; date of shipment; name, address, and phone number of the shipper; name, address, and phone number of the receiver and address of the destination of the exotic species, if different; aquaculture license number and exotic species permit number, if applicable; number and total weight of each harmful or potentially harmful exotic species; a check mark indicating interstate import, interstate export, or intrastate type of shipment. A completed invoice shall accompany each shipment of harmful or potentially harmful exotic species sold or transferred, and shall be sequentially numbered during the permit period; no invoice number shall be used more than once during any one permit period by the permittee.

                 (b) – (c) (No change.)

                 (d) Owners, or their agents, of private ponds or facilities stocked with Mozambique tilapia or triploid grass carp by an Exotic Species Permit holder shall retain a copy of the exotic species transport invoice for a period of one year after the stocking date or as long as the tilapia or triploid grass carp are in the water, whichever is longer.

         This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.

         Issued in Austin, Texas, on