Commission Agenda Item No. 17
Presenter:  Ken Kurzawski

Action
Implementation of Legislation during the 82nd Texas Legislative Session
Senate Bill 1480 – Regulation of Exotic Species
August 25, 2011

I.       Executive Summary:  This item seeks adoption of proposed amendments to rules governing harmful or potentially harmful exotic fish, shellfish, and aquatic plants.  The proposed amendments are necessary to implement the provisions of Senate Bill 1480, enacted by the 82nd Texas Legislature.

II.      Discussion:  Senate Bill 1480, enacted by the 82nd Texas Legislature, Regular Session (2011), amended Parks and Wildlife, Chapter 66, to place all statutory provisions regarding harmful and potentially harmful exotic aquatic plants in a new section, §66.0072.  The proposed amendments would add references to the new section (§66.0072) in order to accurately reflect the statutory basis for the department’s rules governing permits with respect to harmful and potentially harmful exotic aquatic plants.

Staff was authorized at the May, 2011 meeting of the Regulations Committee to publish proposed rules required or authorized by legislation enacted by the 82nd Legislature.  The proposed amendments were published in the July 22, 2011 issue of the Texas Register (36 TexReg 4636-4637).  Staff will present a summary of public comment at the time of the meeting.

III.     Recommendation:  Staff recommends the Texas Parks and Wildlife Commission adopt the following motion:

“The Texas Parks and Wildlife Commission adopts amendments to 31 TAC §§57.118, 57.120, 57.121, and 57.126 with changes as necessary to the proposed text as published in the July 22, 2011, issue of the Texas Register (36 TexReg 4636-4637).”

            Attachments — 1

  1. Exhibit A – Proposed Rules

Commission Agenda Item No. 17
Exhibit A

Rules Required or Authorized by Legislation
Senate Bill 1480
Harmful or Potentially Harmful
Exotic Fish, Shellfish, and Aquatic Plants
Proposal Preamble

1. Introduction.

         The Texas Parks and Wildlife Department proposes amendments to §§57.118, 57.120, 57.121, and 57.126, concerning Harmful or Potentially Harmful Fish, Shellfish, and Aquatic Plants. The proposed amendments would update internal references to Parks and Wildlife Code, Chapter 66, to reflect statutory changes to Chapter 66 made by Senate Bill 1480, enacted by the 82nd Texas Legislature, Regular Session (2011). Prior to the enactment of SB 1480, the statutory provisions governing harmful and potentially harmful aquatic plants were contained in Parks and Wildlife Code, §66.007. As a consequence, the department’s rules governing harmful and potentially harmful fish, shellfish, and aquatic plants cite that section. Senate Bill 1480 amended Parks and Wildlife, Chapter 66, to place all statutory provisions regarding harmful and potentially harmful exotic aquatic plants in a new section, §66.0072. The proposed amendments would add references to §66.0072 in order to accurately reflect the statutory basis for the department’s rules governing permits with respect to harmful and potentially harmful exotic aquatic plants.

2. Fiscal Note.

         Dr. Earl Chilton, Program Director for Aquatic Habitat Enhancement, 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 enforcing or administering the rules.

3. Public Benefit/Cost Note.

         Dr. Chilton also has determined that for each of the first five years the rule as proposed is in effect:

         (A) The public benefit anticipated as a result of enforcing or administering the rule as proposed will be rules that accurately reflect the applicable statues upon which rules are promulgated and enforced.

         (B) There will be no adverse economic effect on persons required to comply with the rules 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), 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 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 impose negative economic impacts on small businesses or microbusinesses. Accordingly, the department has not prepared a regulatory flexibility analysis under 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 rules as proposed will not impact local economies.

         (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.

4. Request for Public Comment.

         Comments on the proposed rules may be submitted to Earl Chilton, Texas Parks and Wildlife Department 4200 Smith School Road, Austin, Texas, 78744; (512) 389-4652 (e-mail: earl.chilton@tpwd.state.tx.us).

5. Statutory Authority.

         The amendments are proposed under the authority of Senate Bill 1480, 82nd Texas Legislature, Regular Session (2011), which added Parks and Wildlife Code, §66.0072 to authorize the commission to regulate by rule or permit the importation, possession, sale, and placement into the public water of this state exotic harmful or potentially harmful aquatic plants.

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

         57.118. Exotic Species Permit Issuance.

                 (a) (No change.)

                 (b) The department may issue an exotic species permit upon a finding by the department that:

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

                         (3) the applicant has complied with all provisions of the Parks and Wildlife Code, §§66.007, 66.0072, and 66.015[§66.007, §66.015,] and these rules during the one-year period preceding the date of application.

                 (c) (No change)

         §57.120. Exotic Species Permit: Issuance and Renewal.

                 (a) (No change.)

                 (b) The department may renew an exotic species permit upon finding that:

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

                         (3) the applicant has complied with all provisions of the Parks and Wildlife Code, §§66.007, 66.0072, 66.015,[§66.007, §66.015] and these rules during the one-year period preceding the date of agency action on the application for renewal; and

                         (4) (No change.)

         §57.121. Exotic Species Permit—Amendment.

                 (a) Exotic species permits may be amended upon a finding by the department that:

                         (1) the applicant has complied with all provisions of the Parks and Wildlife Code, §§66.007, 66.0072, 66.015,[§66.007, §66.015,] all provisions of the permit, and these rules during the one-year period preceding the date of application;

                         (2) – (3) (No change.)

                 (b) – (c) (No change.)

         §57.126. Triploid Grass Carp Permit; Terms of Issuance.

                 (a) The department may issue a triploid grass carp permit upon a finding that:

                         (1)- (3) (No change.)

                         (4) applicant has not been finally convicted, within the last year, for violation of the Parks and Wildlife Code, §§66.007, 66.0072, 66.015,[§66.007, §66.015,] or these rules;

                         (5) – (9) (No change.)

                 (b) – (c) (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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