Administrative Rule Review Report  #AR10-037

Legislative Service Office

6-July-10

AGENCY:                               Game and Fish Department.

DATE SUBMITTED:             June 23, 2010.

SUBJECT:                              Chapter 62, Aquatic Invasive Species.

NATURE OF RULES:            Legislative and procedural.

STATUTORY AUTHORITY: W.S. 23-4-203 and 204.

DETERMINATION OF PROCEDURAL COMPLIANCE BASED UPON INFORMATION SUBMITTED BY THE AGENCY TO LSO:    Apparently complete to date.  Notice of the proposed adoption of new rules was provided by the LSO as required by W.S. 28-9-103(d).  No comments have been received to date.

SUMMARY OF RULES:

These rules set the requirements for inspection, decontamination and quarantine of conveyances with respect to aquatic invasive species.  The rules provide for inspection of conveyances at check stations by authorized representatives of the department, however any requirement for decontamination or quarantine must be made by a peace officer.

The rules reiterate definitions and requirements found in statute in 2010 Wyoming Session Laws, Chapter 98.  The rules set prices for required decals at $10 for resident motorized watercraft, $30 for non resident motorized watercraft, $5 for resident non-motorized watercraft and $15 for non-resident non-motorized watercraft.   The rules exempt inflatable watercraft less than ten feet in length from the decal requirement.  While the rules are not specific about exempting water sport toys from the decal requirement, such toys are exempted under statute.

The rules provide that any impoundment of a conveyance is at the risk of and cost to the owner of the conveyance.  The statutes provide the department express authority to impound a conveyance, but are not specific about charging the costs of that impoundment to the owner.  "The supreme court has long held that administrative agencies have certain implied powers necessary to fulfillment of their statutory purposes. Of course, those implied powers are only those derived by necessary implication from express statutory authority granted to the agency. A more comprehensive statement of the concept of implied powers in this setting is this: Generally, administrative agencies have the implied or incidental powers that are reasonably necessary in order to carry out the powers expressly granted. The reason for implied powers is that, as a practical matter, the legislature cannot foresee all the problems incidental to carrying out the duties and responsibilities of the agency."  Voss v. Goodman, 2009 WY 40

The authority to require an owner to pay the costs of impoundment is likely implied, as a conveyance would only be impounded if the owner refused to decontaminate the conveyance on his own.  It would not be logical to absolve an owner of those costs if the department is forced to impound the conveyance due to the owner's refusal.  However, a statutory clarification would be advisable. 

FINDINGS:  The rules appear to be within the scope of statutory and legislative intent.

STAFF RECOMMENDATION:  That the rules be placed on the Consent List and be approved by the Council as submitted by the Agency and that the Council direct the The Joint Travel, Recreation, Wildlife and Cultural Resources Interim Committee to consider the statutory clarification noted above as the committee is considering the Aquatic Invasive Species program in its interim topics.

                                                                                    _______________________

                                                                                    Lynda Cook

                                                                                    Staff Attorney

                                                                                    _______________________

                                                                                    Dan Pauli

Director