Commission Meeting Agenda Item No. 4
Presenter: Monica McGarrity

Action
Proposed Amendments to the Exotic Harmful or Potentially Harmful Fish,
Shellfish, and Aquatic Plants Rules
Recommended Adoption of Proposed Changes
November 4, 2021

I.      Executive Summary: The Texas Parks and Wildlife Department (TPWD) staff is seeking adoption of amendments to rules governing exotic harmful or potentially harmful fish, shellfish, and aquatic plants as published in the Texas Register. The proposed amendments clarify the period of validity of permits for stocking triploid grass carp in private ponds, lawful transfer of these fish with any change in ownership of a property, and harvest of stocked triploid grass carp from public waters.

II.     Discussion: Texas Parks and Wildlife Code chapter 66 delegates to the Texas Parks and Wildlife Commission (Commission) the authority to publish a list of harmful or potentially harmful exotic fish, shellfish, and aquatic plants and to regulate the importation, possession, sale, and introduction of such species into public waters. The proposed rules would amend the regulations pertaining to exotic species to clarify that triploid grass carp permits remain valid for a period of 18 months following permit issuance, providing for flexibility for adaptive management yet providing clarity for permit archiving and records retention purposes. The proposed amendments also provide associated clarifications related to harvest of stocked triploid grass carp from public waters and transfer of live triploid grass carp with any change in ownership of a property.

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

“The Texas Parks and Wildlife Commission adopts amendments to 31 Texas Administrative Code §57.113, concerning General Provisions and Exceptions, and §57.116, concerning Special Provisions — Triploid Grass Carp, with changes as necessary to the proposed text as published in the September 24, 2021 issue of the Texas Register (46 TexReg 6368).”

Commission Agenda Item No. 4
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 §57.113 and §57.116, concerning Harmful or Potentially Harmful Fish, Shellfish and Aquatic Plants. The proposed amendments clarify the period of validity for the permit for stocking of triploid grass carp in private or public waters, lawful transfer of these fish with any change in ownership of a property, and harvest of stocked triploid grass carp from public waters.

        The proposed amendment to §57.113(b)(2), concerning General Provisions and Exceptions, would alter subsection (b)(2) to clarify the process by which the department designates public water bodies where triploid grass carp have been stocked for aquatic vegetation management purposes and may not be taken. This language is more consistent with current procedure whereby the department designates these water bodies by listing on the department website.

        The proposed amendment to §57.116, concerning Special Provisions – Triploid Grass Carp, would alter subsection (g)(3) to clarify that the stocking authority under a permit issued under the subsection is specific to the pond for which it issued (i.e., cannot be used on any other pond) and is valid for 18 months from the date of issuance. Current §57.116(g)(3) unintentionally mixes provisions regarding the transfer of property with provisions regarding the applicability and period of validity of a permit. Therefore, provisions regarding transfer of property would be relocated to proposed new paragraph (8) and the remaining provisions reworded for the sake of clarity. Additionally, the department has determined there is a need for a defined permit expiration date to accommodate administrative document archiving schedules and prevent potential permit reuse. A period of 18 months provides for adequate flexibility for adaptive management practices, if needed. The amendment would also relocate the provision pertaining to modification of ponds in such a way that could result in increased risk of escape, release, or discharge of controlled exotic species to new paragraph (10) as it relates to conditions for possession rather than permit period of validity.

        The proposed amendment also would add new paragraph (8) to relocate provisions governing the transfer of properties where triploid grass carp are present. Proposed new §57.116(g)(8) provides that documentation required to be retained by persons in possession of triploid grass carp (i.e., transport invoice and proof of triploid status certification) shall be transferred with the change of ownership of a property to the new property owner as proof of lawful possession of transferred triploid grass carp. This amendment clarifies that this documentation authorizes lawful possession by the new owner to facilitate such transfers.

        The proposed  amendment would also relocate the provision from paragraph (3) pertaining to modification of ponds in such a way that could result in increased risk of escape, release, or discharge of controlled exotic species to new paragraph (10) as it relates to conditions for possession rather than permit period of validity.

        The proposed amendment of §57.116(g)(9), concerning transfer of triploid grass carp, clarifies that live triploid grass carp stocked in a pond may be transferred to the new owner of a property.

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 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. 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.

5. Rule Text.

        §57.113. General Provisions and Exceptions.

                 (a) (No change.)

                 (b) Except as provided by Parks and Wildlife Code or this subchapter, no person shall:

                         (1) (No change.)

                         (2) take or possess a [live] grass carp from public waters designated by the department where grass carp have been introduced by the department or under a permit issued by the department[, unless the department has specifically authorized removal or the permit is no longer in effect].

                 (c) – (p) (No change.)

        §57.116. Special Provisions — Triploid Grass Carp.

                 (a) – (f) (No change.)

                 (g) Stocking in private ponds.

                          (1) – (2) (No change.)

                          (3) A permit[Permits] for stocking of triploid grass carp into private ponds is[are] specific to the pond or [] ponds for which it is issued [on a property, transferrable with the sale of the property, and shall not expire or require renewal] and shall remain valid for a period of 18 months from the date of issuance [provided that the ponds are not modified in any way that could result in increased risk of escape, release, or discharge of controlled exotic species into public water]. All stocking must take place within the period of permit validity established by this paragraph.

                         (4) — (7) (No change.)

                          (8) A person in possession of live triploid grass carp shall provide the documentation required by paragraph (7) of this subsection to the new property owner upon change of ownership of the property as proof of lawful possession of triploid grass carp. Possession of the documentation described in paragraph (7) of this subsection shall be maintained so long as a person possesses any live triploid grass carp. 

                          (9)[8] Except as provided in paragraph (8) of this subsection, triploid [Triploid] grass carp stocked in a private pond must be killed in accordance with the provisions of §57.113 of this title (relating to General Provisions and Exceptions) prior to being transported or transferred to another person.

                         (10) A person in possession of live triploid grass carp may not modify the pond or ponds for which stocking was permitted in any way that could result in increased risk of escape, release, or discharge of controlled exotic species into public water.

        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