Commission Agenda Item No. 6
Exhibit A

PERMITS TO SELL NONGAME FISH TAKEN FROM PUBLIC WATER
PROPOSAL PREAMBLE

1. Introduction.

         The Texas Parks and Wildlife Department proposes an amendment to §57.379, concerning Prohibited Acts.

         Under the provisions of Parks and Wildlife Code, §47.001(16), an aquatic product is defined as “any live or dead, uncooked, fresh or frozen aquatic animal life.” Under Parks and Wildlife Code, Chapter 67, any vertebrate or invertebrate wildlife not classified as game fish is a nongame species.  Therefore, all nongame fishes are aquatic product under the provisions of Parks and Wildlife Code, Chapter 47, and the licensing requirements contained in Chapter 47 therefore also apply to nongame fish. Specifically, under Parks and Wildlife Code, §47.002, a commercial fisherman’s license is required to engage in business as a commercial fisherman (defined by §47.001(1) as “a person who for the purpose of sale, barter, or exchange or any other commercial purpose catches aquatic products from the water of this state, except finfish”). Similarly, Parks and Wildlife Code, §47.014, provides that a bait dealer’s license is required to engage in business as a bait dealer (defined by §47.001(5) as “a person who catches and sells, minnows, fish, shrimp, or other aquatic products for bait or a place of business where minnows, fish, shrimp, or other aquatic products are sold, offer for sale, handled, or transported for sale for bait”).  Other licenses (wholesale dealer, retail dealer) allow the purchase and sale of aquatic products, but do not authorize the permittee to catch aquatic products.

         Parks and Wildlife Code, Chapter 67 also authorizes the commission to establish any limits on the taking, possession, propagation, transportation, importation, exportation, sale, or offering for sale of nongame fish or wildlife that the department considers necessary to manage the species.  In 1991, the department promulgated regulations, including §57.379, under the authority of Chapter 67 to protect 26 species of nongame fishes. The regulations, which are still in effect, require a person who wishes to sell a listed species of nongame fish taken from public fresh water to obtain a permit for that purpose from the department. Therefore, any person who wishes to harvest and sell a species of nongame fish listed in §57.378, concerning Applicability: Nongame Fishes, must have both a permit issued under Chapter 67 (authorizing the sale of the listed nongame species) and an appropriate license issued under Chapter 47 (authorizing the catch of aquatic products).

         Confusion has arisen over the current wording of §57.379, which is being interpreted by some to mean that the species of nongame fish listed in §57.378 may not be sold by anyone unless the person possesses a permit under Chapter 57, Subchapter E. This interpretation is inconsistent; the holder of a wholesale or retail fish dealer’s permit may lawfully purchase and sell lawfully harvested aquatic products from anyone without having acquired any additional permit or license. Therefore, the proposed amendment would clearly separate those licenses that authorize harvest and sale from those licenses that authorize purchase and sale and make clear that the requirement for a permit under Chapter 57, Subchapter E is in addition to the statutory requirement to possess either a commercial fisherman’s license or a bait dealer’s license.

2. Fiscal Note.

         Brandi Reeder, Fisheries Law Administrator, has determined that for each of the first five years that the proposed rule is in effect, there will be no fiscal implications to state or local governments as a result of administering or enforcing the proposed rule.

3. Public Benefit/Cost Note.

         Ms. Reeder also has determined that for each of the first five years the rule as proposed is in effect:

         (A) The public benefit anticipated as a result of enforcing or administering the rules as proposed will be rules that facilitate compliance and enforcement.

         (B) 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 proposed rules will not result in adverse economic effects on persons required to comply.

         (C) 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.

         (D) 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.

4. Request for Public Comment

         Comments on the proposal may be submitted to Brandi Reeder, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4853; email: brandi.reeder@tpwd.texas.gov.

5. Statutory Authority

         The amendment is proposed under the authority of Parks and Wildlife Code, §67.004, which authorizes the commission to establish any limits on the taking, possession, propagation, transportation, importation, exportation, sale, or offering for sale of nongame fish or wildlife that the department considers necessary to manage the species; and §67.0041, which authorizes the department to issue permits for the taking, possession, propagation, transportation, sale, importation, or exportation of a nongame species of fish or wildlife if necessary to properly manage that species.

         The proposed rule affects Parks and Wildlife Code, Chapter 67.

6. Rule text.

         §57.379. Prohibited Acts. Except as exempted by this subchapter[these rules] it is unlawful for any person to:

                 (1) sell or offer for sale a nongame fish of the species listed in §57.378 of this title (relating to Applicability: Nongame Fishes) taken from the public fresh water of the state, unless the person:

                         (A) holds a valid general commercial fisherman’s license and/or individual bait dealer license (as applicable) and harvested the fish under a permit issued under this subchapter; or

                         (B) holds a valid license issued under the authority of Parks and Wildlife Code, Chapter 47, that authorizes the person to purchase and sell (but not catch) aquatic products[catch for sale, sell or offer for sale nongame fish taken from the public fresh water of the state without a valid permit issued by the department authorizing that activity];

                 (2) engage in activities authorized by the permit and fail to show on demand to a game warden or other authorized department employee a valid permit authorizing that activity;

                 (3) to retain or possess any game fish or nongame fish not listed in a valid permit while engaged in activities authorized by the permit;

                 (4) to fail to immediately return to the water any fish not listed in the permit caught while engaged in activities authorized by the permit; or

                 (5) violate any provision of the permit.

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

         Issued in Austin, Texas on