Commission Agenda Item No. 5
Presenters: Claudia Solis
Stormy King
Action
Aerial Wildlife Management Rules
Recommended Adoption of Proposed Changes
May 27, 2021
I. Executive Summary: With this item, the staff seeks adoption of a proposed amendment to rules governing the management of wildlife and exotic species from aircraft. The proposed amendment would add violations of state and federal laws governing management of wildlife from aircraft to the list of predicate offenses for which the Texas Parks and Wildlife Department (TPWD) could refuse to issue or renew a permit to manage wildlife and exotic species.
II. Discussion: Under federal law (16 U.S.C. §742j-1, commonly referred to as the Airborne Hunting Act, or AHA) it is unlawful to shoot or attempt to shoot or intentionally harass any bird, fish, or other animal from aircraft except for certain specified reasons, including the protection of wildlife, livestock, and human health except as may be provided by state law pursuant to federal authority. Texas Parks and Wildlife Code, Chapter 43, Subchapter G, is the statutory authority for regulating airborne wildlife management in Texas; under §43.109, the Texas Parks and Wildlife Commission (Commission) is authorized to promulgate regulations governing the management of wildlife by the use of aircraft.
In 2016, the Commission promulgated regulations to set forth the circumstances under which TPWD could choose to refuse aerial management permit (AMP) issuance or renewal on the basis of criminal history. TPWD reasoned that it is appropriate to deny the privilege of taking or allowing the take of wildlife resources, and especially for personal benefit, to persons who exhibit a demonstrable disregard for specific laws and regulations governing wildlife. In promulgating the rules, TPWD inadvertently overlooked the inclusion of violations of state and federal airborne hunting laws in the list of predicate offenses for which TPWD could refuse to issue or renew an AMP. TPWD believes it is intuitively obvious that rules regarding the refusal of issuance or renewal of AMPs should include provisions regarding violations of either or both the state and federal law governing the management of wildlife from aircraft. The proposed amendment would remedy that oversight.
At the 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 2699). 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 §65.154, concerning Issuance of Permit; Amendment and Renewal, with changes as necessary to the proposed text as published in the April 23, 2021 issue of the Texas Register (46 TexReg 2699).”
Attachment – 1
Commission Agenda Item No. 5
Exhibit A
PERMITS FOR AERIAL MANAGEMENT OF WILDLIFE AND EXOTIC SPECIES
PROPOSAL PREAMBLE
1. Introduction
The Texas Parks and Wildlife Department proposes an amendment to 31 TAC §65.154, concerning Issuance of Permit; Amendment and Renewal. The proposed amendment would add violations of state and federal laws governing wildlife management from aircraft to the list of predicate offenses for which the department could refuse to issue or renew a permit for the management of wildlife and exotic species (referred to hereafter as the Aerial Management Permit or AMP).
Under federal law (16 U.S.C. §742j-1, commonly referred as the Airborne Hunting Act, or AHA) it is unlawful to shoot or attempt to shoot or intentionally harass any bird, fish, or other animal from aircraft except for certain specified reasons, including protection of wildlife, livestock, and human health except as may be provided by state law pursuant to federal authority. Parks and Wildlife Code, Chapter 43, Subchapter G, is the statutory authority for regulating airborne wildlife management in Texas; under §43.109, the Parks and Wildlife Commission is authorized to promulgate regulations governing the management of wildlife by the use of aircraft.
In 2016, the commission promulgated regulations to set forth the circumstances under which the department could choose to refuse AMP issuance or renewal on the basis of criminal history (41 TexReg 4037). That rulemaking provided for department refusal to issue or renew an AMP for any applicant who has a final conviction or has been assessed an administrative penalty for a list of enumerated violations, including violations of Chapter 43, Subchapter C, E, L, R, or R-1 (various deer management permits); violations of the Parks and Wildlife Code other than Chapter 43, Subchapter C, E, L, R, or R-1 that are punishable as a Parks and Wildlife Code Class A or B misdemeanor, state jail felony, or felony; Parks and Wildlife Code, §63.002 (unlawful possession of live game animals or game birds); or the Lacey Act (16 U.S.C. §§3371-3378), a federal law governing international trade involving endangered species. The department reasoned that it is appropriate to deny the privilege of taking or allowing the take of wildlife resources, and especially for personal benefit, to persons who exhibit a demonstrable disregard for laws and regulations governing wildlife. Similarly, it is appropriate to deny such privileges to a person who has exhibited demonstrable disregard for wildlife law in general by committing more egregious (Class B misdemeanors, Class A misdemeanors, and felonies) violations of wildlife law.
In promulgating the rules, the department inadvertently overlooked the inclusion of violations of state and federal airborne hunting laws in the list of predicate offenses for which the department could refuse to issue or renew an AMP. The department believes it is intuitively obvious that rules regarding the refusal of issuance or renewal of AMPs should include provisions regarding violations of either or both the state and federal law governing the management of wildlife from aircraft. The proposed amendment would remedy that oversight.
The department notes that in all cases the denial of AMP issuance or renewal as a result of an adjudicative status listed in the rule is not automatic, but within the discretion of the department. Factors that may be considered by the department in determining whether to issue or renew an AMP based on adjudicative status include, but are not limited to: the number of final convictions or administrative violations; the seriousness of the conduct on which the final conviction or administrative violation is based; the existence, number and seriousness of offenses or administrative violations other than offenses or violations that resulted in a final conviction; the length of time between the most recent final conviction or administrative violation and the application for enrollment or renewal; whether the final conviction, administrative violation, or other offenses or violations was the result of negligence or intentional conduct; whether the final conviction or administrative violations resulted from the conduct committed or omitted by the applicant, an agent of the applicant, or both; the accuracy of information provided by the applicant; for renewal, whether the applicant agreed to any special provisions recommended by the department as conditions; and other aggravating or mitigating factors.
2. Fiscal Note.
Stormy King, Assistant Commander, Law Enforcement Division, has determined that for each of the first five years that the rule as proposed is in effect, there will be no fiscal implications to state or local governments as a result of administering or enforcing the rule.
3. Public Benefit/Cost Note.
Mr. King also has determined that for each of the first five years that the rule as proposed is in effect:
(A) The public benefit anticipated as a result of enforcing or administering the proposed rule will be more effective oversight of persons authorized to manage a public resource and the benefits to public resources occurring as a result of sound management activities.
(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 the proposed rule regulates a permit that privileges individual persons to manage wildlife resources in this state and therefore does not directly affect small businesses, micro-businesses, or rural communities. The department additionally notes that the rule does not impose a requirement, but rather makes a potential action available to the department predicated on the adjudicated criminal behavior of persons seeking issuance or renewal of a permit., there will be no adverse economic effect on small businesses or microbusinesses as a result of the rules. On this basis, 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 rule 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 rule.
(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 rule.
(F) In compliance with the requirements of Government Code, §2001.0221, the department has prepared the following Government Growth Impact Statement (GGIS). The rule 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 a new regulation;
(6) not expand an existing regulation;
(7) neither increase nor decrease the number of individuals subject to regulation; and
(8) not positively or adversely affect the state’s economy.
4. Request for Public Comment.
Comments on the proposed rule may be submitted to Stormy King, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4627; email: stormy.king@tpwd.texas.gov or via the department website at www.tpwd.texas.gov.
5. Statutory Authority.
The amendment is proposed under Parks and Wildlife Code, §43.109, which provides the commission with authority to make regulations governing the management of wildlife or exotic animals by the use of aircraft under this subchapter, including forms and procedures for permit applications; procedures for the management of wildlife or exotic animals by the use of aircraft; limitations on the time and the place for which a permit is valid; establishment of prohibited acts; rules to require, limit, or prohibit any activity as necessary to implement Parks and Wildlife Code, Chapter 43, Subchapter G.
The amendment affects Parks and Wildlife Code, Chapter 43, Subchapter G.
6. Rule Text.
§65.154. Issuance of Permit; Amendment and Renewal.
(a) – (c) (No change.)
(d) The department may refuse to issue to or renew an AMP for any person who has been finally convicted of, pleaded nolo contendere to, received deferred adjudication, or assessed an administrative penalty for a violation of:
(1) Parks and Wildlife Code, Chapter 43, Subchapter C, E, G, L, R, or R-1;
(2) (No change.)
(3) Parks and Wildlife Code, §63.002; [or]
(4) the Lacey Act (16 U.S.C. §§3371-3378); or
(5) 16 U.S.C. §742j-1 (commonly referred as the Airborne Hunting Act, or AHA).
(e) – (h) (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