Commission Agenda Item No. 6
Presenter: Jarret Barker
Action
Commercially Protected Finfish Rules
Recommended Adoption of Proposed Changes
May 27, 2021
I. Executive Summary: The Texas Parks and Wildlife Department (TPWD) staff is seeking adoption of an amendment to 31 Texas Administrative Code (TAC) section 57.971 and the repeal of sections 57.972 through 57.974. The proposed changes would:
- Remove invoicing, packaging, and labeling requirements specific to fish listed as commercially protected;
- Remove redundant regulations that are already required by statute; and
- Provide clarification to the regulated community that Texas Parks and Wildlife Code (PWC) section 47.0181, section 47.0182, and section 47.0183 establish the requirements for invoicing, packaging, and labeling for all aquatic products.
II. Discussion: The proposed rule will remove limitations for packaging and the cumbersome invoicing process for commercially protected finfish purchased by wholesale fish dealers in Texas. The packaging, labeling, and invoicing requirements are intended to aid Law Enforcement in distinguishing lawfully raised finfish from illegal wild-caught fish protected by state statute. Invoicing requirements under Texas Parks and Wildlife Code section 47.0181 sufficiently allow for source tracing of all aquatic products. The additional invoicing requirements required by TAC sections 57.972 and 57.973 only apply to imported or farm raised products. The additional requirements for the 19 commercially protected finfish are not needed by Law Enforcement to ensure proper traceability to a lawful source. Repealing sections 57.972 and 57.973 will (by default) align shipping requirements with those required by PWC section 47.0181. Aligning the invoicing requirements will expand fish farmers’ ability to market their products without any increase in risk to wild resources. Repealing TAC section 57.974, specific to reporting requirements, is recommended as reporting will no longer be required. Amending TAC section 57.971 will provide clear guidance to the regulated community on how to handle commercially protected finfish. With the proposed changes, Law Enforcement will be able to sufficiently protect the state’s wild stocks, and fish farmers will be able to market their products as all other aquatic products.
At the Texas Parks and Wildlife Commission (Commission) Work Session meeting on March 24, 2021, the staff was authorized to publish the proposed rule in the Texas Register for public comment. The proposed rule appeared in the April 23, 2021 issue of the Texas Register (46 TexReg 2698). A summary of public comment on the proposed rule will be presented at the time of the hearing.
III. Recommendation: The staff recommends that the Commission adopt the proposed motion:
“The Texas Parks and Wildlife Commission adopts an amendment to 31 TAC §57.371 and repeals 31 TAC §§57.372-57.374 concerning Commercially Protected Finfish, with changes as necessary to the proposed text as published in the April 23, 2021 issue of the Texas Register (46 TexReg 2698).”
Attachment – 1
Commission Agenda Item No. 6
Exhibit A
COMMERCIALLY PROTECTED FINFISH RULES
PROPOSAL PREAMBLE
1. Introduction
The Texas Parks and Wildlife Department proposes an amendment to 31 TAC §57.371 and the repeal of 31 TAC §§57.372-57.374, concerning Commercially Protected Finfish. The proposed amendment and repeals would eliminate regulatory language that is explicitly and implicitly duplicative of the statutory provisions of Parks and Wildlife Code, Chapter 47, and replaces that language with succinct references to specific statutory provisions. The proposed amendment also would add a reference to the statutory provisions regarding punishments for a violation of the rules.
2. Fiscal Note.
Jarret Barker, Assistant Commander, Law Enforcement 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 governments as a result of administering or enforcing the rules.
3. Public Benefit/Cost Note.
Mr. Barker also has determined 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 clearer regulations and the elimination of duplication.
(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 rules do not impose any requirement that is not already imposed by statute, there will be no adverse economic effect on small businesses or microbusinesses as a result of the rules. Therefore, 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 regulation, but will eliminate duplicative regulations;
(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 rules may be submitted to Jarret Barker, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4650; email: jarret.barker@tpwd.texas.gov or via the department website at www.tpwd.texas.gov.
5. Statutory Authority.
The amendment and repeals are proposed under Parks and Wildlife Code, §66.020, which authorizes the commission to require by proclamation that fish imported under a finfish import license be tagged, packaged, and labeled and accompanied by an invoice as prescribed by rule of the commission.
The proposed amendment and repeals affect Parks and Wildlife Code, Chapter 66.
6. Rule Text.
§57.371. Applicability: Commercially Protected Finfish.
(a) A commercially protected finfish is any fish listed in Parks and Wildlife Code, §66.020(a). [The finfish in this subsection may be imported only by the holder of a finfish import license. To be lawfully imported, sold or purchased in Texas bass of the genus Micropterus, crappie, flathead catfish, red drum, striped bass, white bass or a hybrid of any of these fish must be farm raised and fed a prepared feed containing 20% or more of plant protein or grain by-products as a primary food source.]
(b) The provisions of Parks and Wildlife Code, §§47.0181-47.0183, apply to the possession and transportation of commercial finfish under a valid finfish import license issued by the department.[Except as provided in Parks and Wildlife Code, §66.020, it is unlawful for any person to buy, offer to buy, sell or offer to sell, possess for the purpose of sale, transport or ship for the purpose of sale, barter, or exchange the species listed in this subsection:]
[(1) Bass of the genus Micropterus;]
[(2) Bass, striped;]
[(3) Bass, white;]
[(4) Bass, yellow;]
[(5) Catfish, flathead;]
[(6) Crappie, black;]
[(7) Crappie, white;]
[(8) Drum, red;]
[(9) Grouper, goliath (formerly called jewfish);]
[(10) Marlin, blue;]
[(11) Marlin, white;]
[(12) Muskellunge;]
[(13) Pike, northern;]
[(14) Sailfish;]
[(15) Sauger;]
[(16) Seatrout, spotted;]
[(17) Snook;]
[(18) Spearfish, longbill;]
[(19) Tarpon;]
[(20) Walleye; and]
[(21) Hybrids of any of these fish.]
(c) A person who violates a provision of this subchapter is subject to the penalties prescribed by Parks and Wildlife Code, §66.012.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency’s legal authority to adopt.
Issued in Austin, Texas, on
The repeals are proposed under Parks and Wildlife Code, §66.020, which authorizes the commission to require by proclamation that fish imported under a finfish import license to be tagged, packaged, and labeled and to be accompanied by an invoice as prescribed by rule of the commission.
The proposed repeals affect Parks and Wildlife Code, Chapter 66.
§57.372. Packaging Requirements.
§57.373. Package Labels.
§57.374. Delegation of Authority.
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