Presenter: Mike Berger

Commission Agenda Item No. 9
Action
Chapter 55 Law Enforcement
Chapter 65 Wildlife
January 2005

I. Executive Summary: This item seeks adoption of nonsubstantive rulemaking necessitated by the agency's rule review of Chapter 55, concerning Law Enforcement. The item transfers the rules governing aerial management permits from Chapter 55 to Chapter 65 (Wildlife), and makes minor housekeeping-type changes. The transfer reflects the fact that the Wildlife Division now administers that program.

II. Discussion:Government Code, §2001.039 (the Act), requires each state agency to perform a review of all regulations not less than every four years and to either readopt, amend, or repeal each rule. The Act further requires that each agency readopting a rule certify that the reasons for the rule continue to exist. As part of the department's rule review effort, staff recommended that the rules governing aerial management of wildlife be moved from Chapter 55 (Law Enforcement) of the department's regulations to Chapter 65 (Wildlife) to reflect the fact that the Wildlife Division now administers that program. The department published a proposed rulemaking to effect the transfer, which was published in the December 17, 2004, issue of the Texas Register (29 TexReg 11556). Staff will provide 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 the proposed repeal of 31 TAC §§55.141-55.153 and 65.150-65.162, concerning Permits for Aerial Management of Wildlife and Exotic Species, with changes as necessary to the proposed text as published in the September 17, 2004, issue of the Texas Register (29 TexReg 11558)."

Attachments - 2

  1. Exhibit A - Proposed Chapter 55 Rules Repeal
  2. Exhibit B - Proposed Chapter 65 Rulemaking

Commission Agenda Item No. 9
Exhibit A

Rule Review
Chapter 55 Law Enforcement
Repeal of Subchapter E – Aerial Permits
Proposal Preamble

1. Introduction.

The Texas Parks and Wildlife Department proposes the repeal of §§55.141-55.153, concerning Permits for Aerial Management of Wildlife and Exotic Species. The repeals are a result of the department's review process under the provisions of Government Code, §2001.039, which requires each state agency to perform a review of all regulations not less than every four years and to either readopt, amend, or repeal each rule as necessary and appropriate. As a result of the review, the department is relocating the aerial management rules to Chapter 65, concerning Wildlife. A proposal to that effect appears elsewhere in this issue. The effect of the repeals is nonsubstantive.

2. Fiscal Note.

Robert Macdonald, regulations coordinator, has determined that for each of the first five years that the proposed repeals are in effect, there will be no fiscal implications to state or local governments as a result of administering or enforcing the repeals as proposed.

3. Public Benefit/Cost Note.

Mr. Macdonald also has determined that for each of the first five years the repeals as proposed are in effect:

(A) The public benefit expected as a result of the proposed repeals will be rules that are organized in a more topical manner so as to be easier to access.

(B) There will be no adverse economic cost for small businesses, microbusinesses, or persons required to comply with the repeals as proposed, as the repeals do not alter the current cost of compliance with any regulation.

(C) The department has determined that the repeals will not affect local economies; accordingly, no local employment impact statement has been prepared.

(D) The department has determined that Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules) does not apply to the proposed repeals.

(E) The department has determined that Government Code, Chapter 2007 (Governmental Action Affecting Private Property Rights), does not apply to the proposed repeals.

4. Request for Public Comment.

Comments on the proposed repeals may be submitted to Robert Macdonald, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4775; e-mail: robert.macdonald@tpwd.state.tx.us.

5. Statutory Authority.

The repeals are proposed under Parks and Wildlife Code, §43.109, which authorizes the commission to make regulations governing management of wildlife or exotic animals by the use of aircraft.

The proposed repeals affect Parks and Wildlife Code, Chapter 43.

§55.141. Applicability.

§55.142. Definitions.

§55.143. General Rules.

§55.144. Application for Permit.

§55.145. Issuance of Permit.

§55.146. Period of Validity of Permit.

§55.147. Amendment of Permit.

§55.148. Renewal of Permit.

§55.149. Permit Not Transferable.

§55.150. Permit Fee.

§55.151. Landowner Authorization.

§55.152. Reports.

§55.153. Penalty.

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

Issued in Austin, Texas, on


Commission Agenda Item No. 9
Exhibit B

Rule Review
Chapter 65 Wildlife
Aerial Permits
Proposal Preamble

1. Introduction.

The Texas Parks and Wildlife Department proposes new §§65.150-65.162, concerning Permits for Aerial Management of Wildlife and Exotic Species. The new sections are a result of the department’s review process under the provisions of Government Code, §2001.039, which requires each state agency to perform a review of all regulations not less than every four years and to either readopt, amend, or repeal each rule as necessary and appropriate. As a result of the review, the department is relocating the aerial management rules from Chapter 55, concerning Law Enforcement, to Chapter 65, concerning Wildlife. A proposal to repeal Chapter 55, Subchapter E, appears elsewhere in this issue.

The following changes have been made to the current rule language.

Proposed new §65.151 (current §55.142), concerning Definitions, has been modified by eliminating the definitions at paragraphs (2), (6), (7), (9), (11), and (16), which are defined in Parks and Wildlife Code, §43.103 and are therefore unnecessary in rule; by removing the portion of current paragraph (7) that creates an exception for aoudad sheep and elk, because aoudad sheep and elk are by legislative action no longer game animals in the state; and by modifying paragraph (13) to eliminate a reference to the Law Enforcement Division, because operational administration of the aerial management program is being transferred to the Wildlife Division.

Proposed new §65.152 (current §55.143), concerning General Rules, is modified by inserting the word ‘harass’ to utilize a term specifically defined by statute and by removing the term ‘proclamation’ from subsection (d) and replacing it with the phrase ‘rule of the commission,’ which is more precise.

Proposed new §65.162 (current §55.150), concerning Permit Fee, is modified by removing reference to the fee amount for the permit and stipulating that the permit fee is nonrefundable. The department in a previous rulemaking consolidated all fee amounts in 31 TAC Chapter 53.

2. Fiscal Note.

Robert Macdonald, regulations coordinator, has determined that for each of the first five years that the proposed new rules are in effect, there will be no fiscal implications to state or local governments as a result of administering or enforcing the new rules as proposed.

3. Public Benefit/Cost Note.

Mr. Macdonald also has determined that for each of the first five years the new rules as proposed are in effect:

(A) The public benefit expected as a result of the proposed rules will be rules that are organized in a more topical manner so as to be easier to access.

(B) There will be no adverse economic cost for small businesses, microbusinesses, or persons required to comply with the rules as proposed, as the rules do not alter the current cost of compliance with any regulation.

(C) The department has determined that the rules will not affect local economies; accordingly, no local employment impact statement has been prepared.

(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 Government Code, Chapter 2007 (Governmental Action Affecting Private Property Rights), does not apply to the proposed rules.

4. Request for Public Comment.

Comments on the proposed rules may be submitted to Robert Macdonald, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4775; e-mail: robert.macdonald@tpwd.state.tx.us.

5. Statutory Authority.

The new rules are proposed under Parks and Wildlife Code, §43.109, which authorizes the commission to make regulations governing management of wildlife or exotic animals by the use of aircraft.

The proposed new rules affect Parks and Wildlife Code, Chapter 43.

§65.150. Applicability. These rules apply to all the counties in Texas.

§65.151. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Aerial Management Permit—A permit issued by the department to count, photograph, relocate, capture, or hunt wildlife or exotic animals by the use of aircraft.

[(2) Aircraft—A mechanical or other device used for flight.]

(2) [(3)] Applicant—An individual, partnership, or corporation who files an application for a permit to manage wildlife or exotic animals by use of aircraft.

(3) [(4)] Convicted—A judgment of guilty, plea of guilty or nolo contendre, or placed on probation or deferred adjudication.

(4) [(5)] Department—The Texas Parks and Wildlife Department or a specifically authorized employee of the department.

[(6) Depredating animals—Feral hogs, bobcats, red fox, coyotes, and crossbreeds between coyotes and dogs.]

[(7) Exotic animals—Exotic livestock and exotic fowl as defined by Agriculture Code, §161.001(a), and wild animals that are not indigenous to Texas.]

(5) [(8)] Gunner—An individual who uses a firearm, tranquilizer gun, or net gun to capture, take, shoot, or attempts to capture, take, or shoot wildlife or exotic animals from an aircraft.

[(9) Harass—To disturb, worry, molest, harry, torment, rally, concentrate, drive, or herd.]

(6) [(10)] Landowner's authorization—Signed consent from the landowner or the landowner's authorized agent to manage a specified number of wildlife or exotic animals from an aircraft on certain property.

[(11) Management by the use of aircraft—To manage wildlife or exotic animals by counting, photographing, relocating, capturing, or hunting by the use of aircraft.]

(7) [(12)] Observer—Any person other than the pilot or gunner who is on board an aircraft while wildlife or exotic animals are being counted, photographed, relocated, captured, or hunted.

(8) [(13)] On file—Approved and on file at the Austin headquarters of the department.

(9) [(14)] Permit—An aerial management permit.

(10) [(15)] Pilot—An individual who pilots an aircraft to count, photograph, relocate, capture, or hunt wildlife or exotic animals.

[(16) Wildlife—Any vertebrate species or their hybrids that normally live in a state of nature and are not ordinarily domesticated. This definition includes depredating animals.]

§65.152. General Rules.

(a) A person who holds a permit under the authority of Parks and Wildlife Code, Chapter 43, Subchapter G, is authorized to engage in the management of wildlife and exotic animals by the use of aircraft only on land named in the landowner's authorization. The permit shall be carried in aircraft when performing management by the use of aircraft.

(b) A pilot of an aircraft used for the management of wildlife or exotic animals must maintain a daily flight log and report. The daily flight log must be current and available for inspection by game wardens at reasonable times. Each permit holder and pilot shall comply with all Federal Aviation regulations for the specific type of aircraft listed on their permit.

(c) A person commits an offense if:

(1) the person hunts, shoots, shoots at, kills, or attempts to kill from an aircraft any wildlife or exotic animals other than wildlife or exotic animals authorized by the permit and landowner's authorization;

(2) the person intentionally harasses, disturbs, hazes, or buzzes any wildlife or exotic animals by the use of an aircraft other than wildlife or exotic animals authorized in a permit and landowner's authorization;

(3) the person acts as a gunner, observer, or pilot during a flight related to management of wildlife or exotic animals from an aircraft, and has within one year immediately preceding the flight been convicted of a Class A Parks and Wildlife Code misdemeanor or Parks and Wildlife Code felony relating to the management of wildlife or exotic animals by the use of aircraft;

(4) the person pilots an aircraft to manage wildlife or exotic animals without a valid pilot's license as required by the Federal Aviation Administration;

(5) the person pays, barters, or exchanges anything of value to participate as a gunner or observer;

(6) the person acting as a gunner or pilot under an aerial management permit takes or attempts to take any wildlife or exotic animals for any purpose other than is necessary for the protection of lands, water, wildlife, livestock, domesticated animals, human life, or crops, except that any wildlife or exotic animals, once lawfully taken pursuant to this subchapter may be sold if their sale is not otherwise prohibited;

(7) the person acting as a gunner or pilot hunts, takes, kills, manages or attempts to hunt, take, kill or manage wildlife or exotic animals during the hours between 1/2-hour after sunset and 1/2-hour before sunrise;

(8) the person operates an aircraft for the management of wildlife or exotic animals and is not named as an authorized pilot in a permit;

(9) the person takes, captures, or kills more wildlife or exotic animals on properties than are specified in the landowner's authorization; or

(10) the person uses a permit for the purpose of sport hunting.

(d) These rules do not exempt any person from the requirement for other licenses or permits required by statute or rule of the commission.

§65.153. Application for Permit. An applicant for a permit shall complete and place on file an application on a form prescribed by the department. The application shall contain the description, including make, model, color, and registration number of each aircraft to be used. The name of each individual pilot will be shown exactly as it appears on their state driver's license, personal identification certificate issued by the Department of Public Safety, or the FAA license, along with a current address and date of birth of the applicant (date of birth not applicable if corporation), and the name, address, hunting license number, and date of birth of each pilot.

§65.154. Issuance of Permit.

(a) A permit may be issued in the name of an individual, partnership, or corporation for named pilots to count, photograph, relocate, capture, or hunt wildlife or exotic animals by the use of aircraft.

(b) Upon the filing of a properly executed application, the department may issue a permit if:

(1) the applicant, or any pilot named in the application, has not within one year immediately preceding the date of the application been convicted of any Class A Parks and Wildlife Code misdemeanor or Parks and Wildlife Code felony relating to the management of wildlife or exotic animals by the use of aircraft;

(2) the applicant has not knowingly failed to disclose any material information required, or has not knowingly made any false statement regarding any material fact in connection with the application;

(3) the applicant will use the permit only for the purpose of protecting or aiding in the administration or protection of land, water, wildlife, livestock, domesticated animals, human life, or crops;

(4) the permit requested, in the judgment of the issuing official, will aid in the management of wildlife and exotic animals and will not have a deleterious effect on indigenous species.

(c) The permit shall include the following information:

(1) the name and address of the individual applicant, partnership or corporation;

(2) the authorized pilot's name, address, date of birth, and Federal Aviation Administration Certificate number;

(3) the authorized aircraft; and

(4) the issue and expiration date of the permit.

§65.155. Period of Validity of Permit. A permit is valid for a period of one year from the date of issuance unless sooner terminated or revoked.

§65.156. Amendment of Permit.

(a) When a permittee desires to have his permit amended, that person must file an amended application on the form provided by the department. An application for amendment is subject to the same issuance criteria as the original application for permit. In emergency situations, permit amendments and new landowner's authorizations may be expedited by presenting completed forms to the game warden in the county where the management of wildlife or exotic animals is to be performed.

(b) A game warden in the county where the land is located may approve the landowner's authorization and cause the form to be delivered to the department office in Austin. In such emergency situations, the landowner's authorization form will be considered on file when approved by the game warden.

(c) In situations involving only counting and photographing, the landowner's authorization for management of wildlife or exotic animals is considered on file when signed by both the permittee and landowner or landowner's agent and placed in the mail to the department office in Austin prior to flight.

§65.157. Renewal of Permit. A permittee requesting a renewal of a permit must file a properly executed application on a form prescribed by the department, together with the required fee, at least ten days prior to the expiration of the current permit.

§65.158. Permit Not Transferable. A permit is not transferable or assignable.

§65.159. Permit Fee. The permit fee specified in §53.15 of this tile (relating to Miscellaneous Fisheries and Wildlife Licenses and Permits) must accompany an application for the permit which is refundable should the permit application be denied. The department may exempt governmental entities from the permit fee.

§65.160. Landowner Authorization.

(a) Prior to managing wildlife or exotic animals, a permit holder must place on file a landowner's authorization form for each individual ownership on which wildlife or exotic animals are to be managed. The landowner's authorization form shall include:

(1) the name, address, and phone number of the landowner;

(2) the name, address, and phone number of the authorized landowner's agent, if applicable;

(3) the name and permit number of the permittee;

(4) the farm or ranch name and specific location of the property;

(5) the specific kind and number of wildlife or exotic animals to be managed by use of aircraft and the reason why these animals should be managed; and

(6) a trap and transplant permit number issued by the Department's Wildlife Division must be shown, if game animals or game birds are captured by the use of aircraft.

(b) A landowner's authorization for the management of wildlife or exotic animals shall be valid for the life of the permit unless the permit expires without renewal, is suspended or revoked; or, if the landowner's authorization specifies a certain time period, then the landowner's authorization will be valid for that specified time.

(c) A landowner's authorization for hunting shall be approved only for depredating animals and exotic animals.

(d) A landowner's authorization will not be approved for non-indigenous wild animals except as authorized by the department when a specific wild animal(s) has escaped from captivity.

(e) A single landowner's authorization form may be submitted by a group of landowners or by an association on behalf of such landowners. The landowner's authorization form shall have attached a list of participating landowner names, ranch names, addresses, and acreage for each participating landowner. The landowner's authorization may be signed by one authorized agent who represents the group of landowners or an association.

§65.161. Reports.

(a) The holder of a permit shall file with the department within 30 days following the end of each calendar quarter or on termination of the permit, whichever occurs first, a daily flight log and report, on a form prescribed by the department, showing:

(1) name, signature, and permit number of the permit holder;

(2) number and description of the wildlife or exotic animals managed under the permit;

(3) the landowner's authorization control number issued by the department;

(4) the dates of authorized flights taken;

(5) the time of day an authorized flight is completed;

(6) type of management by use of aircraft performed;

(7) the name and signature of pilot(s); and

(8) the name, address, and hunting license number of the gunner(s).

(b) Information required on the daily flight log and report shall be entered daily immediately upon completion of an authorized flight. Stopping to refuel does not constitute completion of a flight.

(c) The holder of a permit shall be required to file with the department a negative daily flight log and report, if there are no management flights for the calendar quarter.

§65.162. Penalty. The penalties for violations of these rules are prescribed by the Parks and Wildlife Code, §43.111.

This agency hereby certifies that the repeals have 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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