Proposed Amendments to Rules Governing Harmful or Potentially Harmful Fish, Shellfish, and Aquatic Plants

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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 §57.111, concerning Definitions, and §57.114, concerning Controlled Exotic Species Permits. The proposed amendments would function in concert to remove ambiguity concerning the circumstances under which the department issues permits authorizing the possession of controlled exotic species for zoological display purposes. The purpose of the rules in this subchapter is to minimize to the greatest extent possible the documented and unquestioned risk posed to indigenous species and ecosystems by exotic fish, shellfish, and aquatic plants. The department considers this threat to encompass not only the direct threat posed by possession of such species and their accidental or intentional release, but the indirect threat posed by lack of public awareness of their dangers, including perceptions that exotic species are somehow benign, unimportant, or not worth worrying about. To this end, the department maintains a robust, continuous public relations effort to educate and equip the public with information about the dangers posed by exotic species.

        Current rule allows for the issuance of an exotic species permit for purposes of educational display, under which the sale or intentional propagation of controlled exotic species is prohibited. As noted earlier in this discussion, the department believes that educating the public about the threat of exotic species is important and therefore that there is value and public benefit in the issuance of controlled exotic species permits for that purpose; however, the department also considers that the most appropriate and effective vehicles for such educational efforts are entities established and operated for the purpose of educating the public about natural history, ecology, and the sciences (museum, aquaria, nature centers, and so forth). The department is concerned that the display of controlled exotic species in commercial and retail environments where animals and/or aquatic plants are sold to the public is problematic because it could result in public perception that the controlled exotic species on display in such environments, even if the specimens are not for sale, are appropriate, desirable, or lawful for hobbyists to obtain, which in turn could drive market demand for exotic species and pose additional threats to native species and ecosystems, as one of the main components of the spread of exotic species is their intentional or accidental release to the wild for various reasons. Therefore, the proposed amendments would function in concert to restrict the issuance of controlled exotic species permits for zoological display only to facilities that the department determines are engaged in bona fide educational activities and do not engage in the sale of fish, shellfish, wildlife, or aquatic plants.

        The proposed amendment to §57.111, concerning Definitions, would define ”zoological facility” as “A zoo, aquarium, nature center, or other, similar facility that is open to the public, operated for the purpose of furthering scientific understanding, encouraging management and conservation, or furthering awareness and understanding of biology, and

does not engage in commercial or retail activities involving the sale of animals or aquatic plants.”

        The proposed amendment to §57.114, concerning Controlled Exotic Species Permits, would provide for the issuance of permits authorizing the possession of controlled exotic species for purposes of educational display at a zoological facility that the department has determined exists for the bona fide purpose of educating the public and not for any ancillary or additional commercial purpose that involves the sale of animals or aquatic plants.

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 government 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 the protection of native species and ecosystems from the threat of exotic harmful or potentially harmful aquatic 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 because it is unlawful under current rule for any person to whom a zoological display permit has been issued to sell or propagate the species authorized to be possessed, the proposed rules will not result in any direct economic costs to any small business, micro-business, or rural community; 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 or expand a new regulation;

                         (6) neither increase nor decrease the number of individuals subject to regulation; and

                         (7) 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.

Statutory Authority.

        The amendments are proposed under the authority of Parks and Wildlife Code, §66.007 and §66.0072, which authorize the department to make rules necessary to authorize the import, possession, sale, or introduction of harmful or potentially harmful exotic fish, shellfish, and aquatic plants.

        The proposed amendments affect Parks and Wildlife Code, Chapter 66.

5. Rule Text.

        §57.111.  Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.

                 (1) — (36) (No change.)

                 (37) Zoological facility — A zoo, aquarium, nature center, or other, similar facility that is:

                         (A) open to the public;

                         (B) operated for the purpose of furthering scientific understanding, encouraging management and conservation, or furthering awareness and understanding of biology; and

                         (C) does not engage in commercial or retail activities involving animals or aquatic plants.

        §57.114.   Controlled Exotic Species Permits.

                 (a) – (d) (No change.)

                 (e) Zoological Display. Permits may be issued for [zoological] display of controlled exotic species in a zoological facility in accordance with the provisions of this subchapter. The sale or intentional propagation of controlled exotic species under this permit is prohibited.

                 (f) (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

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