November 6-7, 2018, Commission Meeting Agenda

Work Session

Commission Agenda Items

August 22-23, 2018, Transcripts

 

Commission Agenda Item No. 3
Presenter: Ken Kurzawski

Action
Shad Rules
Recommended Adoption of Proposed Changes
November 7, 2018

I.     Executive Summary: With this item, the staff seeks permission to publish proposed amendments to rules governing the collection, possession, and sale of shad. The proposed rules would:

II.     Discussion:  Under Texas Parks and Wildlife Code, section 67.0041, the Texas Parks and Wildlife Department may issue permits for the taking, possession, propagation, transportation, sale, importation, or export of a nongame species of fish if necessary to properly manage that species. Gizzard and threadfin shad are nongame species.

In March 2017, the Texas Parks and Wildlife Commission adopted new rules for possession and sale of gizzard and threadfin shad collected from public fresh waters. The rules require persons to obtain a permit if shad are collected for personal use (as bait or for stocking in private ponds) in containers constituting an aggregate volume of 82 quarts or more.

As the result of a petition for rulemaking, the staff proposes to increase aggregate container volume from 82 quarts to 30 gallons. An increase in container size to 30 gallons will allow recreational anglers to use larger containers, which will be particularly beneficial when using gizzard shad as bait, and which will have minimal biological impact on shad populations.

At the Commission Work Session meeting held on August 22, 2018, staff was authorized to publish the proposed rules in the Texas Register for public comment.  The proposed rules appeared in the September 28, 2018 issue of the Texas Register (43 TexReg 6439).  A summary of public comment on the proposed rules will be presented at the time of the hearing.

III.   Recommendation:  The staff recommends the Commission adopt the proposed motion:

 “The Texas Parks and Wildlife Commission adopts an amendment to §57.385, concerning Special Provisions for the Collection, Possession, and Sale of Shad, with changes as necessary to the proposed text as published in the September 28, 2018, issue of the Texas Register (43 TexReg 6439).”

Attachments – 1

  1. Exhibit A – Proposed Rules

Commission Agenda Item No. 3
Exhibit A

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

1. Introduction.

        The Texas Parks and Wildlife Department proposes an amendment to §57.385, concerning Permits to Collect or Sell Nongame Fish Taken from Public Water. The proposed amendment would increase the volumetric threshold value beyond which persons possessing or transporting shad must obtain a permit and clarify that the exceptions provided for the permit requirement apply only on the waterbody where the shad were collected.

        Under current rule (§57.385(b)), the collection of shad from public fresh water without a permit is prohibited if the shad are possessed in container(s) exceeding 82 quarts in volume, with exceptions. The proposed amendment would increase the minimum volume from 82 quarts to 30 gallons and clarify that the possession and transport of shad from the waterbody where collected is prohibited unless a permit has been obtained.

        The current threshold value of 82 quarts was selected because the department determined that such a volume represented a biologically insignificant impact to the resource. As a result of further evaluation, the department believes that increasing that value to 30 gallons will not result in negative population impacts.

        The proposed amendment also would retitle the section and the subchapter to more accurately reflect the activities governed by the rules. The new title of Chapter 57, Subchapter E, would become “Permits to Possess or Sell Nongame Fish Taken from Public Fresh Water,” and the new title for §57.385 would become “Special Provisions for the Collection, Possession, and Sale of Shad.”

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. The department estimates that fewer than 10 persons currently required to obtain the $60 permit would no longer be required to obtain the permit, resulting in annual revenue loss to the department of $600 or less.

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 the management and protection of nongame fisheries resources.

        (B) There will be no economic impact on persons required to comply with the rule.

        (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 rules will not affect small businesses, micro-businesses, or rural communities, since the proposed rule will relax the current threshold for permit possession and therefore subject fewer small businesses and micro-businesses to permit requirements. The department has determined that because of the very small number of persons engaged in commercial activities involving shad, the very small volume of shad being subjected to commercial exploitation, and the abundance of shad resources, the proposed rule will not affect rural communities. Therefore, the department has not prepared the economic impact statement or regulatory flexibility analysis described in 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 Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed amendment.

        (F) 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 amendment.

        (G) The department has determined that because the rules as proposed do not impose a cost on regulated persons, it is not necessary to repeal or amend any existing rule.

        (H) In compliance with the requirements of Government Code, §2001.024, the department has prepared the following Government Growth Impact Statement (GGIS).  The rule as proposed, if adopted, will:

                 (1) neither create nor eliminate a government program;

                 (2) not result in an increase or decrease in the number of full-time equivalent employee needs;

                 (3) not result in a need for additional General Revenue funding;

                 (4) not affect the amount of any fee;

                 (5) not create a new regulation;

                 (6) liberalize an existing regulation (by increasing the minimum aggregate volume of shad that may be possessed without a permit);

                 (7) decrease the number of individuals subject to regulation; and

                 (8) not positively or adversely affect the state’s economy.

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 (email: ken.kurzawski@tpwd.texas.gov) or via the department website at https://tpwd.texas.gov/business/feedback/public_comment/.

5. Statutory Authority.

        The amendment is proposed under Parks and Wildlife Code, Chapter 67, which gives 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 amendment affects Parks and Wildlife Code, Chapter 67.

6. Rule Text.

        §57.385. Special Provisions for the Collection, Possession, and Sale of [–] Shad.

                 (a) 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:

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

                           (2) 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.

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

                         (1) [are] not sold or exchanged for anything of value; and

                         (2) [are] possessed in a container or containers that in the aggregate constitute 30 gallons or less in volume. The volume limit does not apply when shad are possessed:

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

                                  (A)[B] on the waterbody from which the shad were taken [and are used as bait]; or

                                  (B)[C] 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