Commission Meeting Agenda Item No. 9
Presenter: Les Casterline
Action
Implementation of Legislation During the 88th Texas Legislative Session – Senate Bill 1839 – Relating to the Offense of Selling or Purchasing Shark Fins or Products Containing Shark Fins
Recommended Adoption of Proposed Rules
August 24, 2023
I. Executive Summary: Staff seeks adoption of a proposed new rule to implement Senate Bill (S.B.) 1839, adopted during the 88th Texas Legislative Session. S.B. 1839 enhanced Texas Parks and Wildlife Department’s ability to detect and prosecute persons who engage in the unlawful act of “shark finning.” The proposed new rule would:
- require shark fins to be immediately destroyed following removal from a lawfully possessed shark by immersion in a chemical solution for a period of time sufficient to render the shark fin inedible; and
- stipulate that destroyed shark fins and shark fin parts be lawfully disposed.
II. Discussion: “Shark finning” is the act of removing a shark’s fins and discarding the rest of the animal, often while it is still alive, leaving the animal to slowly die because it can no longer swim. The practice of shark finning is widely considered to be barbaric and wasteful, and it is illegal in Texas under Texas Parks and Wildlife Code section 66.2161. In light of documented evidence that the practice continues to be common in Texas, the Texas Legislature determined that current statutory provisions regarding shark finning are problematic with respect to prosecution and insufficient in terms of deterrence. S.B. 1839 is intended to address the situation by, among other things, increasing penalties for shark finning violations and requiring persons in a place of business or a restaurant to immediately destroy and discard shark fins while processing sharks for eventual sale. The bill delegates rulemaking authority to the Texas Parks and Wildlife Commission (Commission) to administer the bill and provided that TPWD would prescribe the manner by which shark fins are to be denatured (i.e., destroyed) and discarded. The proposed new rule would create such regulations.
At the Commission Work Session meeting on May 24, 2023, staff was authorized to publish proposed rules in the Texas Register as necessary to implement legislation from the most recent legislative session. The proposed amendment was published in the July 21, 2023, issue of the Texas Register (48 TexReg 3972). A summary of public comment on the proposed amendment will be presented at the meeting.
III. Recommendation: Staff recommends that the Texas Parks and Wildlife Commission adopt the following motion:
“The Texas Parks and Wildlife Commission adopts new 31 Texas Administrative Code §57.979, concerning Unlawful Possession of Shark Fins, as listed in Exhibit A, with changes as necessary to the proposed text as published in the July 21, 2023, issue of the Texas Register (48 TexReg 3972).”
Attachment – 1
Commission Agenda Item No. 9
Exhibit A
RULES REQUIRED OR AUTHORIZED BY THE LEGISLATURE
SENATE BILL 1839
UNLAWFUL POSSESSION OF SHARK FINS
PROPOSAL PREAMBLE
1. Introduction
The Texas Parks and Wildlife Department proposes new 31 TAC §57.979, concerning Unlawful Possession of Shark Fins.
The proposed new rule would prescribe the process to be followed at a restaurant or place of business for treating shark fins to render them inedible and thus unfit for illicit commercial purposes.
The Texas Legislature during the most recent regular session enacted Senate Bill (S.B.) 1839, which addresses the unlawful sale and purchase of shark fins and products derived from shark fins. “Shark finning” is the act of removing a shark’s fins and discarding the rest of the animal, often while it is still alive, leaving the animal to slowly die because it can no longer swim. The practice of shark finning is widely considered to be barbaric and wasteful, and it is illegal in Texas under current law (Texas Parks and Wildlife Code, §66.2161) and in many other states and countries as well. There is a significant commercial demand for shark fins and related products as foodstuffs, which, because the practice is illegal, has resulted in a lucrative opportunity for unscrupulous persons to engage in criminal activity at the expense of a public resource. In light of documented evidence that the practice continues to be common in Texas, the legislature determined that current statutory provisions regarding shark finning are problematic with respect to prosecution and insufficient in terms of deterrence. S.B. 1839 is intended to address the situation by, among other things, increasing penalties for violation and requiring persons in a place of business or restaurant to immediately destroy and discard shark fins while processing sharks for eventual sale. The bill delegates rulemaking authority to the commission to prescribe the particulars of the process by which shark fins are to be denatured (i.e., destroyed) and discarded.
The proposed new rule would stipulate that a shark fin must be destroyed by immersion in chlorine bleach, acid, or other such chemical or chemical solution for a period of time sufficient to render the shark fin inedible or otherwise unfit for human consumption. The proposed rule also would require destroyed shark fins and shark fin parts to be lawfully disposed of at a landfill or disposal site authorized by the Texas Commission of Environmental Quality to accept such materials, which would include waste removal services provided by third parties.
2. Fiscal Note.
Robert Macdonald, Regulations Coordinator, 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 the department as a result of administering or enforcing the rule.
There will be no effect on persons required to comply with the rule as proposed.
3. Public Benefit/Cost Note.
Mr. Macdonald 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 the protection of a public resource from exploitation by unscrupulous persons.
(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 because the rule directly regulates restaurants and places of business, there will be an adverse economic impact on any such business that qualifies as a small business or microbusiness under the provisions of Government Code, Chapter 2006; however, the cost of compliance is a result of legislative action and not the rulemaking. The department considers that the requirement for shark fins to be rendered inedible is imposed by statute and not by rule and that the proposed new rule merely specifies the process for such destruction. Nevertheless, the department has determined that such costs will be minimal, consisting of the cost of purchasing denaturing agents and the disposal of denatured shark fins, costs that all restaurants and similar places of business already incur in the course of normal operations in compliance with other regulatory requirements, such as public health and sanitation codes.
There will be no adverse economic impact on rural communities as a result of the proposed rule, as the rule will not directly regulate any rural community.
(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 rule 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 rule.
(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.
(F) 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 a fee;
(5) create a new regulation (specifying the process for denaturing and disposing of shark fins);
(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 Assistant Commander Les Casterline, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4853; email: le.fisheries@tpwd.texas.gov or via the department website at www.tpwd.texas.gov.
5. Statutory Authority.
The new rule is proposed under the provisions of Senate Bill 1839 of the 88th Texas Legislature (Regular Session), which amended Parks and Wildlife Code, §66.2161 to authorize the commission to promulgate rules stipulating the method and circumstances for the destruction and disposal of shark fins at a restaurant or place of business.
The proposed amendment affects Parks and Wildlife Code, Chapter 66.
6. Rule Text.
§57.979. Unlawful Possession of Shark Fins.
(a) It is unlawful for any person to, upon detaching a shark fin from a shark that is lawfully possessed and being processed in a restaurant or place of business, fail to immediately destroy the shark fin as prescribed in this section. Destroyed shark fins shall be lawfully disposed of, either by a contracted waste removal service or by direct transport to a landfill or waste facility permitted by the Texas Commission on Environmental Quality to receive such material.
(b) In this section, the following terms shall have the following meanings,
(1) Destroy – to treat a shark fin by immersion in chlorine bleach, acid, or other such chemical or chemical solution for a period of time sufficient to render the shark fin inedible or otherwise unfit for human consumption.
(2) Immediately – At once, without delay, promptly.
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