Commission Agenda Item No. 4
Exhibit A

PERMITS TO POSSESS OR SELL
NONGAME FISH TAKEN FROM PUBLIC WATER
PROPOSAL PREAMBLE

1. Introduction.

        The Texas Parks and Wildlife Department proposes amendments to §§57.377, 57.379, 57.380, 57.381, and 57.384, and new §57.385, concerning Permits to Sell Nongame Fish Taken from Public Water. Under the current provisions of Chapter 57, Subchapter K, a permit is required for any person who wishes to sell certain nongame fishes, including shad, taken from public waters. Proposed new §57.385, concerning Special Provisions – Shad , would establish a volumetric value for the collection of shad, at or above which a permit would be required, irrespective of whether the harvested shad were sold. Therefore, the department also proposes to change the title of Subchapter K to Permits to Collect or Sell Nongame Fish Taken from Public Water. The department has determined that because shad are a public resource managed by the department, the large-scale harvest of that resource should be monitored and managed by the department. By requiring persons who harvest large numbers of shad to obtain a permit and file annual reports, the department will be able to monitor any impacts to the resource. In addition, the proposed amendments alter provisions regarding the department’s actions regarding issuance and renewal of permits.

        The proposed amendment to §57.377, concerning Definitions, would define “shad” as “gizzard and threadfin shad (Dorosoma spp.),” which is necessary to definitively establish the taxonomic identity of the species to which the rules apply.

        The proposed amendment to §57.379, concerning Prohibited Acts, would replace the word “exempted” with the word “provided” in the initial sentence of the section. In a technical sense, the rules do not exempt anyone from anything, but provide for the various circumstance under which the provisions of the subchapter apply.

        The proposed amendment to §57.380, concerning Permit Application, would streamline language, add a cross-reference to department regulations concerning fees, and provide for up to eight persons to be named on a permit as assistants to the permittee in the conduct of permitted activities. Current subsection (a) refers to “a permit to sell nongame fish taken from public fresh waters of this state.” The department has determined that since Subchapter K consists of the rules governing permits to sell nongame fish taken from public fresh waters of the state, it is redundant to repeat it everywhere. Instead, the department believes it is simpler and easier to simply refer to “permits issued under this subchapter.” Similar changes are made in the proposed amendments to §57.381. The proposed amendment also would alter subsection (a) to include a cross-reference to Chapter 53 of the department’s regulations, which establish permit fees, for ease of reference. Finally, the proposed amendment would allow a permittee to designate up to eight individuals to assist the permittee in the conduct of permitted activities. Under current rule, a permittee is authorized to name up to two additional persons to assist in the conduct of permitted activities; however, a permit amendment is required if a permittee wishes to eliminate or replace assistants. For purposes of enforcement, it is necessary for assistants to be named on a permit; however, the department has determined that it is inefficient for the department and the regulated community to go through the process of permit amendment each time an assistant is added or removed and that increasing the number of assistants that may be named on a permit is necessary to streamline the process for both the department and the regulated community.

        The proposed amendment to §57.381, concerning Permit Specifications and Requirements, would require designated assistants be either on board the same vessel with the permit holder or within line-of-sight of the permit holder (if the assistant is not on the same vessel) at all time that the assistant is engaged in permitted activities. The line-of-sight requirement is necessary because the permit holder should be directly supervising all permit activities in order to ensure that permit requirements are met. Additionally, having a line-of-sight requirement will enhance enforcement. The proposed amendment also makes nonsubstantive changes as previously described in the discussion of the proposed amendment to §57.380.

        The proposed amendment to §57.384, concerning Refusal to Issue; Review of Agency Decision to Refuse Issuance, would allow the department to refuse permit issuance on the basis of the likelihood that prospective permit activities could increase the risk of the transfer or spread of harmful or potentially harmful exotic fish or shellfish. The negative environmental and recreational impacts of invasive species such as zebra mussels are well documented. The department is aggressively engaged in efforts to stop the spread of such species and had determined that because the transport of aquatic species represents the potential to also transport harmful and potentially harmful species, it might be necessary to refuse permit issuance in instances in which a prospective activity presents unacceptable risk. The proposed amendment also would allow for the refusal of permit issuance to persons whom the department has evidence to believe is attempting to obtain a permit on behalf of or as a surrogate for another person not eligible to obtain a permit. Under the current rule, the department may decide not to issue a permit on the basis of an applicant’s criminal history with respect to violations of fish and wildlife law. The department does not believe that a person who has by their own conduct and behavior become ineligible for permit privileges should be able to use a surrogate to avoid the intent of the department in denying permit issuance; therefore, the proposed amendment would authorize the department to refuse permit issuance to persons attempting to obtain a permit on behalf of someone who is prevented from obtaining the permit on the basis of previous criminal activity.

        Proposed new §57.385, concerning Special Provisions – Shad, would establish the conditions under which a permit is required for the possession and/or sale of shad taken from public waters.

        Proposed new §57.385(1) would prohibit the sale, offer for sale, possession for purpose of sale, or exchange for anything of value of shad taken from public fresh water without a valid fishing license and appropriate nongame fish permit. Under current rule, it is unlawful to sell any nongame fish taken from public water without an appropriate fishing license and permit for that activity; thus the proposed new provision is not substantive.

        Proposed new §57.385(2) would prohibit, with exceptions, the collection of shad from public fresh water without a permit if the shad are possessed in container(s) exceeding 82 quarts in volume. A permit would not be required if the shad were not sold or exchanged for anything of value, if the shad were used only as bait on the waterbody where they were collected, or the shad are possessed by a licensed fishing guide who furnishes the shad as bait to customers as part of the guide’s services. The department selected a volumetric value for a possession standard because shad are small fish that are sensitive to handling. A specific numerical bag limit of individual fish would be problematic in the context of compliance and enforcement and in any event significant capture mortality could be expected as a result of the counting process. The department selected the 82-quart value because it is not believed that the collection of smaller volumes of shad for purposes of sale is biologically significant.

2. Fiscal Note.

        Ken Kurzawski, Regulations and Information Programs Director, Inland Fisheries Division, has determined that for each of the first five years that the rules as proposed are in effect, there will be fiscal implications to state government as a result of enforcing or administering the rules, consisting of increased revenue to the department resulting from permit fees from persons who would be required to obtain a permit under the proposed rules. The department estimates that there are 10 or less persons who would be required to obtain a permit as a result of the proposed rules. Therefore, the revenue increase to the department as a result of the proposed rules is estimated to be $600 or less per year (the current permit cost is $60 per year). Existing personnel will administer and enforce the rules as part of existing job duties; thus, there will be no costs associated with administering and enforcing the proposed 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 the management and protection of nongame fisheries resources.

        (B) There will be an adverse economic effect on persons required to comply with the rule as proposed, namely, the $60 fee for a permit.

        (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 most if not all businesses affected by the proposed rules will be small businesses or microbusinesses. The proposed rules would require persons who possess shad taken from public fresh water in containers whose aggregate volume exceeds of 82 quarts to obtain a permit to possess or sell nongame fish. The permit is an annual permit and the permit fee is $60.

        The department considered alternative regulatory approaches to achieve the goal of the proposed rules. The department considered status quo. This alternative was rejected because the impacts of large-scale collection activities on shad populations cannot be monitored unless the department is able to quantify harvest impacts, which is impossible without requiring harvest reporting from persons conducting such activities. The department also considered implementing a no-cost permit. This alternative was rejected because the regulatory complexity created by the existence of two permits to regulate the same activity could lead to problematic compliance and enforcement issues.

        (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.texas.gov) or via the department website at http://tpwd.texas.gov/business/feedback/public_comment/.

5. Statutory Authority.

        The amendments and new section are proposed under Parks and Wildlife Code, Chapter 67, which give the commission the authority to establish any limitations on the take, possession, propagation, transportation, importation, exportation, sale, and offering for sale of nongame fish and wildlife necessary to manage those species.

        The proposed amendments and new rule affect Parks and Wildlife Code, Chapter 67.

6. Text 

        §57.377. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.

                 (1) – (4) (No change.)

                 (5) Shad—Gizzard and threadfin shad (Dorosoma spp.).

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

                 (1) – (5) (No change.)

        §57.380. Permit Application.

                 (a) An applicant for a permit under this subchapter [to sell nongame fish taken from public fresh waters of this state] shall submit a completed application to the department on a form supplied by the department, accompanied by the nonrefundable fee specified in Chapter 53 of this title (relating to Finance).

                 (b) The application must be received by the department at least 30 days before the proposed activity.

                 (c) An application may designate no more than eight persons, in addition to the applicant, to assist in conducting permitted activities.

        §57.381. Permit Specifications and Requirements.

                 (a) A permit issued under this subchapter [by the department to sell nongame fish taken from public fresh water] shall specify:

                         (1) The name, telephone number and physical address of the permittee;

                         (2) The water body where the activity is permitted;

                         (3) The nongame fish species for which take and/or sale is allowed; and

                         (4) The types and number of devices which may be used to take nongame fish.

                 (b) A permit issued under this subchapter [these rules] is not transferable or assignable.

                 (c) At all times that a person designated as an assistant is engaged in a permitted activity, that person must be:

                         (1) on board the same vessel with the permit holder; or

                         (2) within line-of-sight of the permit holder if not on a vessel. [A permit may list no more than two persons, in addition to the permittee, who may assist in conducting the permitted activity.]

                 (d) – (g) (No change.)

                 (h) All permits issued under this subchapter [these rules] expire on December 31 of the year issued.

        §57.384. Refusal to Issue; Review of Agency Decision to Refuse Issuance.

                 (a) The department may refuse to authorize any prospective activity on any water body or impose restrictions on permitted species, water bodies, devices, or live transfer if the department determines that: [The department may refuse permit issuance or renewal if:]

                         (1) The prospective take of nongame fish is [determined by the department to be] detrimental to the target species, species listed as endangered or threatened, or any other aquatic species;

                         (2) The prospective take of nongame fish is likely to increase the risk of transfer or spread of harmful or potentially harmful exotic fish or shellfish; 

                         (3)[(2)] the prospective take of nongame fish cannot be accomplished in a manner consistent with the management goals and objectives of the department;

                         (4)[(3)] the applicant or assistant(s) seeking renewal is not in compliance with provisions of this subchapter; or

                         (5)[(4)] the applicant or assistant(s) have been:

                                  (A) Convicted of, pleaded guilty or nolo contendere to, or received deferred adjudication for a violation of Parks and Wildlife Code or a regulation of the commission; or

                                  (B) convicted, pleaded guilty or nolo contendere, received deferred adjudication or pre-trial diversion, or assessed a civil penalty for a violation of 16 U.S.C. §§3371 — 3378 (the Lacey Act); or

                                  (C) The department has evidence that the applicant is acting on behalf of or as a surrogate for another person not eligible for a permit under this subsection.

                 (b) (No change.)

        §57.385. Special Provisions – Shad.

                 (1) No person may sell, offer for sale, possess for purposes of sale, or exchange for anything of value shad taken from public fresh water unless the person possesses:

                             (A) a valid permit issued by the department under this subchapter specifically authorizing that activity; or

                            (B) a valid fishing guide license issued by the department and the shad are being provided to persons engaged in fishing as part of the guide’s services.

                 (2) No person may collect and possess shad taken from public fresh water without a permit issued under this section unless person possesses a valid recreational fishing license issued by the department and the shad:

                         (A) are not sold or exchanged for anything of value; and

                         (B) are possessed:

                                  (i) in a container or containers that in the aggregate constitute 82 quarts or less in volume;

                                  (ii) on the waterbody from which the shad were taken and are used as bait; or

                                  (iii) by a licensed fishing guide to be provided to persons engaged in fishing as part of the guide’s services regardless of the container volume.

        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

Commission Agenda Item No. 4
Exhibit B

FEES FOR PERMITS TO POSSESS OR SELL NONGAME FISH TAKEN FROM PUBLIC WATER
PROPOSAL PREAMBLE

1. Introduction.

        The Texas Parks and Wildlife Department proposes an amendment to §53.12, concerning Commercial Fishing Licenses and Tags. The proposed amendment would alter the name of a permit, adding the word “possess” to the permit to sell nongame fish in order to reflect the effect of proposed new §57.385, published elsewhere in this issue of the Texas Register, which if adopted would require persons who collect or possess shad in excess of certain limits to obtain a permit.

2. Fiscal Note.

        Ken Kurzawski, Regulations and Information Programs Director, Inland Fisheries Division, has determined that for each of the first five years that the rule as proposed is in effect, there will be fiscal implications to state government as a result of enforcing or administering the rule, consisting of increased revenue to the department resulting from permit fees from persons who would be required to obtain a permit, if proposed new §57.385 is adopted. The department estimates that there are 10 or less persons who would be required to obtain a permit if proposed new §57.385 is adopted. Therefore, the revenue increase to the department as a result of proposed new §57.385 is estimated to be $600 or less per year (the current permit cost is $60 per year). Existing personnel will administer and enforce the rules as part of existing job duties; thus, there will be no costs associated with administering and enforcing the proposed rule.

3. Public Benefit/Cost Note.

        Mr. Kurzawski 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 rule as proposed will be accurate fee regulations.

        (B) The proposed rule itself does not require anyone to obtain a permit; that requirement is contained in proposed new §57.385; however, there will be an adverse economic effect on persons required to obtain a permit, namely, the $60 fee for the permit.

        (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 proposed rule itself does not require anyone to obtain a permit; that requirement is contained in proposed new §57.385. Although the required analysis is contained in the preamble to that rulemaking, the department includes it here as a convenience. The department has determined that most if not all businesses affected by the proposed rule will be small businesses or microbusinesses. The permit fee is $60.

        The department considered alternative regulatory approaches to achieve the goal of the proposed rule. The department considered status quo. This alternative was rejected because the impacts of large-scale collection activities on shad populations cannot be monitored unless the department is able to quantify harvest impacts, which is impossible without requiring harvest reporting from persons conducting such activities. The department also considered implementing a no-cost permit. This alternative was rejected because the regulatory complexity created by the existence of two permits to regulate the same activity could lead to problematic compliance and enforcement issues.

        (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 rule 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 rule.

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.texas.gov) or via the department website at http://tpwd.texas.gov/business/feedback/public_comment/.

5. Statutory Authority.

        The amendment is proposed under Parks and Wildlife Code, Chapter 67, which give the commission the authority to establish any limitations on the take, possession, propagation, transportation, importation, exportation, sale, and offering for sale of nongame fish and wildlife necessary to manage those species.

        The proposed amendments and new rule affect Parks and Wildlife Code, Chapter 67.

6. Text

        §53.12. Commercial Fishing Licenses and Tags.

                 (a) – (b) (No change.)

                 (c) General, finfish, menhaden, mussel, clam, and miscellaneous licenses.

                         (1) Licenses and permits.

                                  (A) – (J) (No change.)

                                  (K) mussel dredge fee — $36; and

                                  (L) permit to possess or sell non-game fish — $60;

                                    (d) – (e) (No change.)