Proposed Changes to Permit Fee Rules Regarding Harmful and Potentially Harmful Fish, Shellfish, and Aquatic Plants

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HARMFUL AND POTENTIALLY HARMFUL FISH, SHELLFISH,  

AND AQUATIC PLANT RULES — FEE RULES  

PROPOSAL PREAMBLE

1. Introduction.

        The Texas Parks and Wildlife Department proposes an amendment to §53.15, concerning Miscellaneous Fisheries and Wildlife Licenses and Permits. The proposed amendment would reorganize the existing fee structure for controlled exotic species permits authorizing the possession of harmful or potentially harmful fish, shellfish, and aquatic plants and establish fees for proposed, multi-year renewals of commercial aquaculture permits. The proposed amendment is largely nonsubstantive (i.e., most current fee amounts would not be changed except for commercial aquaculture permits to account for the need for more frequent facility inspections).

        The proposed amendment would establish the fee structure and amounts for the issuance of multi-year permits for controlled exotic permits issued for commercial aquaculture. Current rules provide for a one-year period of validity for exotic species permits with the possibility of annual renewal thereafter. Under the current rules, the initial fee for permit issuance is $263, which consists of a $27 administrative fee and a one-time facility inspection fee of $236. In another proposed rulemaking published elsewhere in this issue of the Texas Register, the department is proposing new rules governing permits to possess controlled exotic species. Among other things, the proposed new rules would require all commercial aquaculture facilities to be inspected at least once every five years but would also allow for the issuance of multi-year permit renewals (three years or five years) to commercial aquaculture permit holders who are in good standing and have no history of violations for the preceding period of the same duration as the renewal period. The proposed amendment to §53.15 would update the fee for a one-year renewal to $74, establish a fee for a three-year renewal of a commercial aquaculture permit of $168, and establish a fee for a five-year renewal of a commercial aquaculture permit of $263. These fees represent, in each case, $27 for the one-time administrative fee, plus a pro-rated inspection fee ($236 divided by the five-year interval period for inspections). Totals for the renewal fees for the multi-year permits were rounded to the nearest whole dollar amounts.

2. Fiscal Note.

        Ken Kurzawski, Manager, Information and Regulations, 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 fiscal implications to state government as a result of administering or enforcing the rule. Because it is impossible to predict which renewal option any given current permit holder will operate under (annual, three-year, or five year), the revenue in any given year cannot be quantified; however, because each permit holder will be required to undergo a facility inspection at least once every five years, the department estimates that the maximum annual revenue increase resulting from the proposed amendment will be $9,204, which represents the total revenue over five years, averaged across the five-year period being analyzed. This figure was derived by taking the total number of current exotic species permits issued (195), multiplying that number by the fee for a facility inspection ($236), and dividing that product by five. The department notes that because it is impossible to quantify the number of new permits that could be issued, or the number of permits that might expire, the department has assumed that the number of permits remains constant.

        There will be no adverse economic impacts on units of local government as a result of the proposed amendment.

3. Public Benefit/Cost Note.

        Mr. Kurzawski 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 rules will be the protection of public resources from the negative impacts associated with the release or escape of harmful or potentially harmful exotic fish, shellfish, and aquatic plants and a reduction in the burden of annual renewals for commercial aquaculturists electing to obtain multi-year renewal permits.

        (B) 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, micro-businesses, or rural communities. 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 and microbusinesses and rural communities. Those guidelines state that an agency need only consider a proposed rule’s direct adverse economic impacts” to determine if any further analysis is required. 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.

        Department records indicate that other than 934 persons who hold an exotic species permit authorizing possession of triploid grass carp for noncommercial purposes, there are 195 persons currently holding an exotic species permit of some kind. To ensure that this analysis captures all small businesses, microbusiness, and rural communities that might be affected by the proposed rules, the department assumes that all permit holders are small or microbusinesses. Therefore, the department has prepared the economic impact statement and regulatory flexibility analysis described in Government Code, Chapter 2006.

        There will be adverse economic effect on small and microbusinesses required to comply with the rule in the form of a cost of compliance of $236 per permit per five-year period, which is the cost of a facility inspection every five years. The department considered several alternatives to the new requirement for a facility inspection at least once every five years. The department considered the status quo, which was rejected because the intent of the rule is to strengthen the department’s confidence in biosecurity measures taken by permittees, many of which are located in areas that are low-lying or subject to extreme weather events that could result in escape or release of controlled exotic species and are currently not inspected except for initial permit issuance or following permit amendment or permit reinstatement following permit lapse. The department also considered requiring a facility inspection no less frequently than once every 10 years. This alternative was rejected because the 10-year interval provides inadequate risk assurance generally, but especially with facilities that have a history of noncompliance and facilities that by the nature of their extent, infrastructure, location, or inventory warrant more frequent inspection.

        The proposed amendment will have an adverse economic impact on persons required to comply with the rule as proposed. Those impacts will be identical to the small and microbusiness impacts discussed previously in this preamble.

        There will be no adverse economic effect on rural communities as a result of the proposed amendment.

        (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 neither create nor eliminate a government program; not result in an increase or decrease in the number of full-time equivalent employee needs; not result in a need for additional General Revenue funding; not affect the amount of an existing fee (but will impose an existing inspection fee with greater frequency); not create or expand an existing regulation; not increase or decrease the number of individuals subject to regulation; and not positively or adversely affect the state’s economy.

4. Request for Public Comment.

        Comments on the proposal may be submitted to Ken Kurzawski at (512) 389-4591, e-mail: ken.kurzawski@tpwd.texas.gov. Comments also may be submitted via the department’s website at http://www.tpwd.texas.gov/business/feedback/public_comment/.

5. Statutory Authority.

        The amendment is 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 amendment affects Parks and Wildlife Code, Chapter 66.

6. Rule Text.

        §53.15. Miscellaneous Fisheries and Wildlife Licenses and Permits.

                 (a) — (f) (No change.)

                 (g) Controlled Exotic Species (fish, shellfish and aquatic plants):

                         (1) water spinach culture permit[exotic species permit fee for new, renewed or amended application requiring facility inspection] — $263;

                         (2) exotic fish or shellfish commercial aquaculture permit[exotic species permit fee for renewed or amended application not requiring facility inspection — $27;].

                                  (A) Initial issuance — $263;

                                  (B) One-year renewal — $74;

                                  (C) Three-year renewal — $168; and

                                  (D) Five-year renewal — $263.

                         [(3) exotic species permit fee for renewal application received more than one year after renewal date — $263.]

                         (3)[(4)] triploid grass carp permit [application]fee — $16, plus $2 per triploid grass carp requested (the $2 per fish fee is refundable if the permit application is denied);

                         (4)[5] exotic species interstate transit[transport] permit[application fee — individual — $27];

                                  (A) single-use — $27;

                                  (B) one-year authorization — $105.

                         (5)([6]) research, biological control production, zoological display, and limited special purpose permits (other than for triploid grass carp); initial, renewal, or amendment requiring facility inspection — $263[exotic species interstate transport permit application fee — annual — $105].

                         (6) research, biological control production, zoological display, and limited special purpose permits (other than for triploid grass carp); initial, renewal or amendment not requiring facility inspection — $27.

        This agency hereby certifies that the proposal has been reviewed by legal counsel and found to within the agency’s authority to adopt.

        Issued in Austin, Texas, on

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