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Commission Agenda Item No. 9
Presenter: Monica McGarrity

Action Implementation of Legislation (Senate Bill 1204) Passed During the 84th Texas Legislative Session – Waiver of Exotic Species Permit Fees for Educational Programs Involving Aquaculture and Hydroponics
August 20, 2015

I.          Executive Summary: Staff will seek adoption of proposed amendments to rules requiring permit fees for possession of harmful or potentially harmful exotic fish. The proposed amendments would implement the provisions of Senate Bill 1204, enacted by the most recent session of the Texas Legislature, which amended Parks and Wildlife Code, Chapter 66, by adding new §66.007(c-1). The legislation requires the Texas Parks and Wildlife (TPW) Commission to waive by rule the initial and renewal fees for an exotic species permit if the permit or permit renewal is requested by a public school meeting conditions established in Parks and Wildlife Code §66.007(c-1).

II.        Discussion: Under Parks and Wildlife Code, Chapter 66, the TPW Commission is required to promulgate rules regarding the possession and sale of exotic harmful or potentially harmful fish or shellfish. The proposed amendments to §57.117 and §57.118, concerning Harmful or Potentially Harmful Fish, Shellfish, and Aquatic Plants, would waive permit fees for public schools that wish to establish and maintain an educational program that will give students experience with a sustainable system of agriculture that mixes aquaculture and hydroponics. All other conditions for holding exotic fishes, including procedures to prevent escapement and no transfer of live fishes, would continue to be in effect. Only tilapia are anticipated to be used in these facilities. Currently, Mozambique tilapia obtained lawfully from a permit holder can be possessed without a permit although a permit would be required if any fish raised are offered for sale as an aquatic product. Two other tilapia species, Blue and Nile, and hybrids among the three species can also be cultured under permit.

III. Recommendation: The staff recommends the TPW Commission adopt the following motion:

"The Texas Parks and Wildlife Commission adopts an amendment to §57.117 and §57.118, concerning Harmful or Potentially Harmful Fish, Shellfish, and Aquatic Plants, with changes as necessary to the proposed text as published in the July 17, 2015, issue of the Texas Register (40 TexReg. 4532)."

Attachments – 1

  1. Exhibit A – Proposed Rules

Commission Agenda Item No. 9
Exhibit A

REGULATIONS REQUIRED OR AUTHORIZED BY LEGISLATION

EXOTIC SPECIES PERMIT FEE WAIVERS FOR SCHOOL AQUACULTURE PROGRAMS

SENATE BILL 1204

PROPOSAL PREAMBLE

1. Introduction.
         The Texas Parks and Wildlife Department (the department) proposes amendments to §57.117 and §57.118, concerning Harmful or Potentially Harmful Fish, Shellfish, and Aquatic Plants. The proposed amendments would implement the provisions of Senate Bill (S.B.) 1204, enacted by the 84th Texas Legislature, which amended Parks and Wildlife Code, Chapter 66, by adding new §66.007(c-1), requiring the Parks and Wildlife Commission to waive by rule the initial and renewal fees for a permit to possess harmful or potentially harmful fish, shellfish, and aquatic plants (“exotic species permit”) if the permit or permit renewal “is requested by a public school to establish and maintain an educational program that will give students experience with a sustainable system of agriculture that mixes aquaculture and hydroponics.”  S.B. 1204 also provides that to “qualify for the fee waiver, the school must submit an application to the department showing that the school’s program meets the department’s requirements, including requirements for supervision, handling of the fish species, and control of wastes.” Thus, the department will require applicants for a permit fee waiver to demonstrate that the school’s program meets the department’s requirements for supervision, handling of fish species, and control of wastes.

         The department also notes that its rules (31 TAC §57.113(f)) governing permits to possess harmful or potentially harmful fish, shellfish, and aquatic plants authorize permit holders to possess, propagate, transport and sell only triploid grass carp, bighead carp, blue tilapia (Oreochromis aureus), Mozambique tilapia (O. mossambicus), Nile tilapia (O. niloticus), or hybrids between the three tilapia species, unless otherwise provided by the conditions of the permit. Therefore, the proposed amendment would authorize permit issuance to schools only for the possession, propagation, transport, and sale of the species listed in §57.113(f).

2. Fiscal Note.

         Monica McGarrity, Aquatic Invasive Species Biologist, has determined that for each of the first five years that the rules as proposed are effect, there will be no fiscal implications to state government as a result of enforcing or administering the proposed rules separate from the fiscal impacts of the legislation.

         There will be no fiscal implications for other units of state or local governments as a result of enforcing or administering the proposed rules.

3. Public Benefit/Cost Note.

         Ms. McGarrity also has determined that for each of the first five years the rules as proposed rule are effect:
         (A) The public benefit anticipated as a result of enforcing or administering the rules as proposed will be the ability of public school students to gain experience with a sustainable system of agriculture that mixes aquaculture and hydroponics.

         (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, commission 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 there will be no adverse economic effects on small businesses, microbusinesses, or persons required to comply with the rules as proposed. Accordingly, the department has not prepared a regulatory flexibility analysis under Government Code, Chapter 2006.

         (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 Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rules.

         (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 rules may be submitted to http://www.tpwd.state.tx.us/business/feedback/public_comment/ or Monica McGarrity, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-8292; email: monica.mcgarrity@tpwd.texas.gov.

5. Statutory Authority.

         The amendments are proposed under the authority Senate Bill 1204, 84th Texas Legislature (Regular Session), which requires the commission to waive by rule the initial and renewal fees for an exotic species permit if the permit or permit renewal is requested by a public school to establish and maintain an educational program that will give students experience with a sustainable system of agriculture that mixes aquaculture and hydroponics.

         The proposed amendments affect Parks and Wildlife Code, Chapter 66.

6. Text.

         §57.117 Exotic Species Permit: Application Requirements

                 (a) To be considered for an exotic species permit, the applicant shall:

                         (1) meet one or more of the following criteria:

                                  (A) possess a valid aquaculture license;

                                  (B) possess a valid permit from the Texas Commission on Environmental Quality authorizing operation of a wastewater treatment facility;

                                  (C) possess a department-approved research proposal involving use of harmful or potentially harmful exotic fish, shellfish or aquatic plants;

                                  (D) operate a public aquarium approved for display of harmful or potentially harmful exotic fish, shellfish or aquatic plants; or

                                  (E) operate a facility approved by the department for the possession and propagation of harmful or potentially harmful exotic aquatic plants;

                         (2) complete and submit an initial exotic species permit application on a form provided by the department;

                         (3) submit an accurate-to-scale plat of the aquaculture facility specifically including, but not limited to, location of:

                                  (A) all private facilities and owner’s name and physical address including a designation on the plat of all private facilities which will be used for possession of harmful or potentially harmful exotic species;

                                  (B) all structures which drain private facilities;

                                  (C) all points at which private facility effluent is discharged from the private facilities or the aquaculture facility;

                                  (D) all structures designed to prevent escapement of harmful or potentially harmful exotic species from the aquaculture facility;

                                  (E) any vats, raceways, or other structures to be used in holding harmful or potentially harmful exotic species;

                         (4) demonstrate to the department that an existing aquaculture facility, private facility or wastewater treatment facility meets requirements of §57.129 of this title (relating to Exotic Species Permit: Private Facility Criteria);

                         (5) remit to the department all applicable fees except that fees shall be waived for a public school meeting the conditions established in Parks and Wildlife Code, §66.007(c-1).

                 (b) Applicants for an exotic species permit for culture of harmful or potentially harmful exotic shellfish must meet all exotic species permit application requirements and requirements for disease free certification as listed in §57.114 of this title (relating to Health Certification of Harmful or Potentially Harmful Exotic Shellfish).

                 (c) An applicant for an exotic species permit shall provide upon request from the department documentation necessary to identify any harmful or potentially harmful exotic species and confirm the source of origin for the species for which a permit is sought.

                 (d) An applicant for an exotic species permit whose facility is located within the harmful or potentially harmful exotic species exclusion zone as defined in §57.111 of this title (relating to Definitions) must submit an emergency plan to the department for review and approval. The plan shall include measures sufficient to prevent release or escapement of permitted harmful or potentially harmful exotic species into public water during a natural catastrophe (such as a hurricane or flood).

         §57.118 Exotic Species Permit Issuance

                 (a) The department may issue an exotic species permit only to:

                         (1) an aquaculturist and only for species listed in §57.113(f), (g), and (m) of this title (relating to Exceptions);

                         (2) a wastewater treatment facility operator;

                         (3) department-approved research programs; [or]

                         (4) a public aquarium for display purposes only; or

                         (5) a public school meeting the conditions established in Parks and Wildlife Code, §66.007(c-1) and only for species listed in §57.113(f) of this title (relating to Exceptions).

                 (b) The department may issue an exotic species permit upon a finding by the department that:

                         (1) all application requirements as set out in §57.117 of this title (relating to Exotic Species Permit: Application Requirements) have been met;

                         (2) the aquaculture facility operated by the applicant and named in the permit meets or will meet the design criteria listed in §57.129 of this title (relating to Exotic Species Permit: Private Facility Criteria);

                         (3) the applicant has complied with all provisions of the Parks and Wildlife Code, §§66.007, 66.0072, and 66.015, and this subchapter during the one-year period preceding the date of application.

                 (c) Permits issued for aquaculture facilities, private facilities or wastewater treatment facilities under construction shall not authorize possession of harmful or potentially harmful exotic fish, shellfish or aquatic plants until such time as the department has certified that the aquaculture facility, private facilities or wastewater treatment facility as-built meets the requirements in §57.129 of this title.

         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