Commission Agenda Item No. 2
Presenter: Monica McGarrity

Action
Permits to Sell Nongame Fish Taken from Public Water
March 27, 2014

I.       Executive Summary:  This item seeks adoption of proposed repeals and a new rule governing the denial and appeal of denial of permits to sell nongame fish. The proposed new rule would:

II.        Discussion:  Responsibility for regulating the take, possession, propagation transportation, sale, importation, or exportation of a nongame of nongame species of fish or wildlife is delegated to the commission under Parks and Wildlife Code, Chapter 67. Current rules regarding permits that authorize the sale of nongame fish taken from public waters contain provisions governing permit denial and appeal of permit denial that are problematic or obsolete. Staff has determined that the provisions should be modernized.

At the Work Session meeting on January 22, 2014, staff was authorized to publish the proposed rules in the Texas Register for public comment.  The proposed rules appeared in the February 21, 2014 issue of the Texas Register (39 TexReg 1061).  A summary of public comment on the proposed rules will be presented at the time of the hearing.

III.    Recommendation:  Staff recommends that the Commission adopt the proposed motion:

“The Texas Parks and Wildlife Commission adopts the repeal of §57.384 and §57.385 new §57.384, concerning the Permits to Sell Nongame Fish Taken from Public Fresh Water, with changes as necessary to the proposed text as published in the February 21, 2014 issue of the Texas Register (39 TexReg 1061).”

Attachments – 1

  1. Exhibit A – Proposed Rule

Commission Agenda Item No. 2
Exhibit A

PERMITS TO SELL NONGAME FISH TAKEN FROM PUBLIC WATER

PROPOSAL PREAMBLE

1. Introduction.

         The Texas Parks and Wildlife Department proposes the repeal of §57.384, concerning Permit Denial and §57.385, concerning Appeal and new §57.384, concerning Refusal to Issue; Review of Agency Decision to Refuse Issuance.

         Under the provisions of Parks and Wildlife Code, §67.0041, the department is authorized to issue permits for the taking, possession, propagation, transportation, sale, importation, or exportation of nongame species of fish or wildlife. Current department regulations governing the sale of nongame fish taken from public water include provisions for permit denial (§57.385) and appeal of permit denial (§57.385). Those rules were most recently updated in 1997.  The proposal would update those rules to be more consistent with other rules regarding the issuance and renewal of permits and the review of agency decisions to refuse issuance or renewal of permits.

         Over the last several years, the Parks and Wildlife Commission (Commission) has adopted rules to more clearly establish criteria under which the department could refuse to issue or renew certain permits and to establish an internal process by which a permit applicant could seek a review of an agency decision to refuse permit issuance or renewal.   See, e.g., 31 TAC §§57.122, 57.253, 57.399, 65.266, 65.363.  The proposed repeals and new section would replace current §§57.384 and 57.385 with a new §57.384 that sets forth the conditions under which the department could refuse to issue or renew a permit to sell nongame fish taken from public water. The proposed new section also would establish a process for reviewing an agency decision to refuse issuance or renewal of a permit, which is similar to the process used in connection with other department permits.

         Proposed new §57.384(a)(1)-(2) would recapitulate the provisions of current §57.384(3)-(4) to continue the requirement that a permit not be issued for an activity that would be biologically detrimental to the target species, to a threatened or endangered species, or to other aquatic life and also to continue the requirement that a permit not be issued for an activity that would be inconsistent with department management goals and objectives.  Similarly, proposed new §57.384(a)(3) recapitulates the provisions of current §57.384(5), to continue the requirement that a permit not be issued if the applicant fails to comply with the requirements of the subchapter.

         Current §57.384(a)(1), provides that the department will not issue or renew a permit to sell nongame fish taken from public fresh water if the applicant “has been finally convicted of a violation of the Parks and Wildlife Code or any rule, regulation, or proclamation issued by the Commission within the previous 12 months.”  This provision functions as an automatic bar to the issuance or renewal of a permit for any violation of the Parks and Wildlife Code or a regulation of the Commission, while at the same time prohibiting permit denial based on a conviction more than 12 months prior to the application.

         Proposed new §57.384 (a)(4) would replace the current automatic bar and 12-month limit with a provision that allows the department to use discretion in determining whether to refuse to issue or renew a permit.  The proposal would allow department staff to take into account the applicant’s history of violations in deciding to issue or renew a permit, but would not automatically prohibit permit issuance or renewal. The proposed new rule would allow the department to refuse permit issuance to any person who has been convicted of, pleaded nolo contendere to, or received deferred adjudication for any violation of Parks and Wildlife Code or a regulation of the commission. Furthermore, the proposed new rule would allow the department to refuse permit issuance to any person who has been convicted of, pleaded guilty or nolo contendere to, received deferred adjudication or pre-trial diversion, or assessed a civil penalty for a violation of 16 U.S.C. §§3371-3378 (the Lacey Act).  However, the proposed new rule would authorize the use of discretion in determining whether to refuse issuance based on a listed offense.  The premise underlying the proposal is that a person who has pleaded guilty to, been convicted of or received deferred adjudication for a violation of state law involving aquatic and wildlife resources, or who has been convicted, received deferred adjudication, pre-trial diversion, or assessed a civil penalty for a Lacey Act violation has demonstrated a disregard for laws intended to protect the state’s aquatic and wildlife resources.

         The denial of issuance or renewal of a permit based on such offenses will not be automatic, but will be within the discretion of the department.  Factors that may be considered by the department in determining whether to issue or renew a permit based on the proposed new criteria would include, but not be limited to, the nature and seriousness of the offense(s), the number of offenses, the existence or absence of a history of offenses, the length of time between the offense and the permit application, the applicant’s efforts towards rehabilitation, and the accuracy of the information provided by the applicant regarding the applicant’s prior permit history.

         Proposed new subsection (b) would provide a mechanism for persons who have been denied permit issuance or renewal to have the opportunity to have such decisions reviewed by department managers. Although current §57.385 addresses a process to appeal an agency decision to deny permit issuance or renewal, the use of an informal appeal process will help ensure that decisions affecting permit privileges are consistent with applicable policy and procedures.  The informal appeal process will not supplant other legal remedies available to the permit applicant.

2. Fiscal Note.

         Dr. Earl W. Chilton II, Aquatic Habitat Enhancement Program Director has determined that for each of the first five years that the proposed rules will be in effect, there will be no fiscal implications to state or local governments as a result of administering or enforcing the proposed rules.

3. Public Benefit/Cost Note.

         Dr. Earl W. Chilton II, Aquatic Habitat Enhancement Program Director also has determined that for each of the first five years the rules as proposed are in effect:

         (A) The public benefit anticipated as a result of enforcing or administering the rules as proposed will be greater consistency in department permit denial and review processes, a more streamlined permit denial process, and the ability of the department to consider circumstances surrounding violations in making decisions regarding permit denials.

         (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 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 proposed rules will not result in adverse economic effects on persons required to comply.

         (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 there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rule.

4. Request for Public Comment

         Comments on the proposal may be submitted to Monica McGarrity, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-8292; email: monica.mcgarrity@tpwd.texas.gov.

5. Statutory Authority

         The new rule is proposed under the authority of Parks and Wildlife Code, §67.004, which authorizes the commission to establish any limits on the taking, possession, propagation, transportation, importation, exportation, sale, or offering for sale of nongame fish or wildlife that the department considers necessary to manage the species; and §67.0041, which authorizes the department to issue permits for the taking, possession, propagation, transportation, sale, importation, or exportation of a nongame species of fish or wildlife if necessary to properly manage that species.

         The proposed rule affects Parks and Wildlife Code, Chapter 67.

6. Rule text.

         §57.384. Refusal to Issue; Review of Agency Decision to Refuse Issuance.

                 (a) The department may refuse permit issuance or renewal if:

                         (1) the prospective take of nongame fish is determined by the department to be detrimental to the target species, species listed as endangered or threatened, or any other aquatic species;

                         (2) the prospective take of nongame fish cannot be accomplished in a manner consistent with the management goals and objectives of the department;

                         (3) the applicant or assistant(s) seeking renewal is not in  compliance with provisions of this subchapter; or

                         (4) the applicant or assistant(s) have been:

                                  (A) convicted of, pleaded guilty or nolo contendere to, or received deferred adjudication for a violation of Parks and Wildlife Code or a regulation of the commission; or

                                  (B) convicted, pleaded guilty or nolo contendere, received deferred adjudication or pre-trial diversion, or assessed a civil penalty for a violation of 16 U.S.C. §§3371-3378 (the Lacey Act).

                 (b) An applicant for a permit under this subchapter may request a review of a decision of the department to refuse issuance of a permit or permit renewal.

                                  (1) An applicant seeking review of a decision of the department with respect to permit issuance under this subchapter shall submit a written request to the department within 10 working days of being notified by the department of permit denial.

                                  (2) The department shall conduct the review and notify the applicant of the results within 10 working days of receiving a request for review. The decision of the review panel shall be final.

                                  (3) The request for review shall be presented to a review panel. The review panel shall consist of the following:

                                          (A) the Deputy Executive Director for Natural Resources (or his or her designee);

                                          (B) the Director of the Inland Fisheries Division (or his or her designee);, as appropriate; and

                                          (C) a department employee designated by the Director of the Inland Fisheries Division.

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

         Issued in Austin, Texas on

5. Statutory Authority

         The repeals are proposed under the authority of Parks and Wildlife Code, §67.004, which authorizes the commission to establish any limits on the taking, possession, propagation, transportation, importation, exportation, sale, or offering for sale of nongame fish or wildlife that the department considers necessary to manage the species; and §67.0041, which authorizes the department to issue permits for the taking, possession, propagation, transportation, sale, importation, or exportation of a nongame species of fish or wildlife if necessary to properly manage that species.

         The proposed repeals affect Parks and Wildlife Code, Chapter 67.

         §57.384. Permit Denial.

         §57.385. Appeal.

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

         Issued in Austin, Texas on


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