Commission Agenda Item No. 9
Presenter: Monica McGarrity
Action
Implementation of Legislation during the 87th Texas Legislative Session
Senate Bill 703 – Recommended Adoption of the Continuation and Functions of the Department of Agriculture
August 26, 2021
I. Executive Summary: The Texas Parks and Wildlife Department (TPWD) staff is seeking adoption of proposed amendments to §§57.122, 57.125, and 57.126 concerning exotic harmful or potentially harmful fish, shellfish, and aquatic plants, and §§57.395 and 57.398 concerning collection of broodfish from public water. The proposed amendments would function collectively to address the elimination of the requirement for Texas aquaculturists to obtain an aquaculture license from the Texas Department of Agriculture as enacted by the 87th Legislature (2021) in Senate Bill (S.B.) 703.
II. Discussion: Texas Parks and Wildlife Code chapter 66 delegates the authority to publish a list of harmful or potentially harmful exotic fish, shellfish, and aquatic plants to the Texas Parks and Wildlife Commission (Commission) and to regulate the importation, possession, sale, and introduction of such species into public waters. Texas Parks and Wildlife Code chapter 43 delegates the authority to regulate collection of broodstock from Texas waters to the Commission. Recent statutory amendments to chapter 134, Agriculture Code, under S.B. 703 eliminated the requirement for commercial aquaculture facilities to obtain an aquaculture license from the Texas Department of Agriculture (TDA). The proposed amendments would eliminate requirements to possess a TDA aquaculture license as a prerequisite for an exotic species aquaculture permit or broodstock collection permit. The proposed amendments also clarify that applicants for limited special purpose exotic species permits for pond stocking, which are not commercial aquaculturists, are not exempt from the requirements for dealer licenses under Texas Parks and Wildlife Code chapter 47, relating to commercial fishing licenses.
III. Recommendation: The staff recommends that the Texas Parks and Wildlife Commission adopt the following motion:
“The Texas Parks and Wildlife Commission adopts the proposed changes to §§57.122, 57.125, and 57.126 concerning exotic harmful or potentially harmful fish, shellfish, and aquatic plants, and §§57.395 and 57.398, concerning collection of broodfish from public water, with changes as necessary to the proposed text as published in the July 23, 2021 issue of the Texas Register (46 TexReg 4441-4444).”
Attachments – 2
Commission Agenda Item No. 9
Exhibit A
HARMFUL OR POTENTIALLY HARMFUL FISH, SHELLFISH AND AQUATIC PLANTS
PROPOSAL PREAMBLE
1. Introduction.
The Texas Parks and Wildlife Department (the department) proposes amendments to 31 TAC §§57.122, 57.125 and 57.126, concerning Harmful or Potentially Harmful Fish, Shellfish and Aquatic Plants. The proposed amendments comport agency rules with the actions of the 87th Texas Legislature, which enacted Senate Bill 703, amending the Agriculture Code to eliminate the aquaculture license currently issued by the Texas Department of Agriculture.
The proposed amendment to §57.122, concerning Permit Application, Issuance, and Period of Validity, would eliminate references to licenses issued by the Texas Department of Agriculture and instead require applicants for limited special purpose permits for private pond stocking to demonstrate possession of a retail or wholesale fish dealer license issued under Parks and Wildlife Code, Chapter 47. The department has determined that persons purchasing fish for stocking ponds without holding these fish in a facility for more than 72 hours are not aquaculturists, and thus are not exempt from the licensing requirements of Parks and Wildlife Code, Chapter 47, which requires a retail or wholesale fish dealer’s license to be obtained by any person who operates a place of business or vehicle for selling or offering for sale aquatic products.
The proposed amendment to §57.125, concerning Reporting, Recordkeeping, and Notification Requirements, would eliminate the requirement to include the number of the aquaculture licenses issued by the Texas Department of Agriculture on notifications provided to the department by commercial aquaculturists prior to any instance of the import or export of triploid grass carp.
The proposed amendment to §57.126, concerning Discontinuation of Permitted Activities; Sale or Transfer of Permitted Facility, would eliminate references to revocation or suspension of an aquaculture license issued by the Texas Department of Agriculture as a basis for the department to cease possession, importation, exportation, sale, purchase, transportation, propagation, or culture of controlled exotic species, and would eliminate the requirement for a transitional operation following a change in aquaculture facility ownership to submit an aquaculture license issued by the Texas Department of Agriculture.
2. Fiscal Note.
Monica McGarrity, Senior Scientist for Aquatic Invasive Species in the Inland Fisheries Division, 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 or local governments as a result of administering or enforcing the rules.
3. Public Benefit/Cost Note.
Ms. McGarrity also has determined that for each of the first five years that the rules as proposed are in effect:
(A) The public benefit anticipated as a result of enforcing or administering the proposed rules will be accurate and effective rules governing the possession of harmful or potentially harmful species.
(B) Under 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. 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 rules will not result in any direct economic costs to any small businesses, micro-businesses, or rural communities; therefore, the department has a determined that neither the economic impact statement nor the regulatory flexibility analysis described in Government Code, Chapter 2006, is required.
(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.
(F) In compliance with the requirements of Government Code, §2001.0221, the department has prepared the following Government Growth Impact Statement (GGIS). The rules 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) not expand an existing regulation;
(7) neither increase nor 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 Monica McGarrity, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 552-3465; email: monica.mcgarrity@tpwd.texas.gov or via the department website at www.tpwd.texas.gov.
5. Statutory Authority.
The amendments are 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 amendments affect Parks and Wildlife Code, Chapter 66.
6. Rule Text.
§57.122. Permit Application, Issuance, and Period of Validity.
(a) (No change.)
(b) Permit application.
(1) – (2) (No change.)
(3) Additional documentation requirements.
(A) Required licenses. Applicants for [commercial aquaculture facility permits or] limited special purpose permits for private pond stocking shall submit a copy of a retail or wholesale dealer’s license, as applicable, in accordance with Parks and Wildlife Code, Chapter 47[the appropriate, valid aquaculture license or fish farm vehicle license issued by the Texas Department of Agriculture under Agriculture Code, Chapter 134]
(B) – (G) (No change.)
(c) – (d) (No change.)
§57.125. Reporting, Recordkeeping, and Notification Requirements.
(a) – (c) (No change.)
(d) Notification requirements for permits.
(1) – (4) (No change.)
(5) The holder of a commercial aquaculture facility permit must notify the department not less than 72 hours prior to any instance of the import or export of triploid grass carp. The notification must include:
(A) – (E) (No change.)
(F) name, address, and exotic species permit number [and aquaculture license number (as applicable) ] of both the transporter and the receiver.
§57.126. Discontinuation of Permitted Activities; Sale or Transfer of Permitted Facility.
(a) The department may order a permit holder in writing to cease possession, importation, exportation, sale, purchase, transportation, propagation, or culture of controlled exotic species until such time as clearly stated conditions are met and prescribe a disposition protocol in accordance with §57.113(m) of this title (relating to General Provisions and Exceptions), if:
(1) (No change.)
(2) the permit holder’s permit, [license,] authorization, or exemption is revoked or suspended by[:]
[(A)] the Texas Commission on Environmental Quality (TCEQ); or
[(B) the Texas Department of Agriculture (TDA); or]
(3) the permit holder fails to renew a permit, [license,] authorization, or exemption issued by[:]
[(A)] the TCEQ.[; or]
[(B) the TDA.]
(b) — (c) (No change.)
(d) Transitional Operation. A permitted facility may continue to operate under the permit in effect for the facility following a change in ownership provided:
(1) – (2) (No change.)
(3) the new owner provides proof to the department that the necessary permits from the TCEQ [and TDA] as identified in §57.122 of this title have been obtained or applications submitted in compliance [and complies] with all applicable regulations [from those agencies]; and
(4) (No change.)
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. 9
Exhibit B
COLLECTION OF BROODSTOCK FROM TEXAS WATERS
PROPOSAL PREAMBLE
1. Introduction.
The Texas Parks and Wildlife Department (the department) proposes amendments to 31 TAC §57.395, concerning Broodstock Permits; Fees, Terms of Issuance and §57.398, concerning Permit Denial. The proposed amendments would eliminate a provision requiring an applicant for a broodstock permit to provide a copy of an aquaculture license as part of the application process and delete a reference to the license. The proposed amendments comport agency rules with the actions of the 87th Texas Legislature, which enacted Senate Bill 703, amending the Agriculture Code to eliminate the aquaculture license currently issued by the Texas Department of Agriculture.
2. Fiscal Note.
Monica McGarrity, Senior Scientist for Aquatic Invasive Species in the Inland Fisheries Division, has determined that for each of the first five years that the rule as proposed 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. McGarrity also has determined that for each of the first five years that the rule as proposed is in effect:
(A) The public benefit anticipated as a result of enforcing or administering the proposed rule will be accurate, up-to-date regulations.
(B) There will be no adverse economic effect on persons required to comply with the rule 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), in April 2008, the Office of the Attorney General issued guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small businesses. These guidelines state that “[g]enerally, there is no need to examine the indirect effects of a proposed rule on entities outside of an agency’s regulatory jurisdiction.” The guidelines state that an agency need only consider a proposed rule’s “direct adverse economic effects” to small businesses and micro-businesses to determine if any further analysis is required. The guidelines also list examples of the types of costs that may result in a “direct economic impact.” Such costs may include costs associated with additional recordkeeping or reporting requirements; new taxes or fees; lost sales or profits; changes in market competition; or the need to purchase or modify equipment or services.
The department has determined that the rule as proposed will not affect small businesses, micro-businesses, or rural communities, since the rule does not impose any direct economic impacts on any regulated community. 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 rule 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 rule.
(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 rule.
(G) In compliance with the requirements of Government Code, §2001.0221, 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) not expand, limit, or repeal an existing regulation;
(7) not increase the number of individuals subject to regulation; and
(8) neither positively nor adversely affect the state’s economy.
4. Request for Public Comment.
Comments on the proposed rule may be submitted to Monica McGarrity, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 552-3465; email: monica.mcgarrity@tpwd.texas.gov or via the department website at www.tpwd.texas.gov.
5. Statutory Authority.
The amendment is proposed under the authority of Parks and Wildlife Code, §43.552, which requires the commission to prescribe by rule the requirements and conditions for the issuance of a permit under Parks and Wildlife Code, Chapter 43, Subchapter P.
The proposed amendment affects Parks and Wildlife Code, Chapter 43.
6. Rule Text.
§57.395. Broodstock Permits; Fees, Terms of Issuance.
(a) – (d) (No change.)
(e) To be considered for a broodstock permit, the applicant shall[:]
[(1)]complete and submit a broodstock permit application on a form provided by the department[;]
[(2) provide a copy of the applicant’s aquaculture license issued by the Texas Department of Agriculture with the application].
(f) – (g) (No change.)
§57.398. Permit Denial. A broodstock permit may be denied if:
(1) — (4) (No change.)
(5) the species and numbers requested in the permit application are reasonably available from commercial aquaculturists [licensed to operate aquaculture facilities] within the state; or
(6) (No change.)
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