Commission Agenda Item No. 5
Presenters:  Scott Vaca
Brad Chappell

Action
Deer Breeder, Deer Management, and Triple T Permits
Standards for Denial/Refusal to Renew — Inclusion of Lacey Act Violations
May 27, 2010

I.       Executive Summary:  This item seeks adoption of proposed amendments to rules governing issuance and renewal of deer breeder permits, deer management permits (DMPs), and Trap, Transport and Transplant permits (Triple T).  The proposed amendments would:

II.     Discussion:  Parks and Wildlife Code (the Code), Chapter 43, Subchapter E, requires the Commission to adopt rules for the content of wildlife stocking plans, certification of wildlife trappers, and the trapping, transporting, and transplanting of game animals and game birds (“Triple T” permits).  Chapter 43, Subchapter L of the Code requires the Commission to establish permits for and authorizes the promulgation of rules governing the possession of breeder deer (deer breeder permits).  Chapter 43, Subchapter R of the Code authorizes the Commission to issue and establish conditions for the use of a permit to manage deer on acreage enclosed by a fence capable of retaining white-tailed deer (DMP).

Under current rule, the department may refuse to issue or renew a deer breeder, Triple T, or deer management permit to any person who within five years of applying for or renewing such a permit has been convicted of or received deferred adjudication for a violation of Parks and Wildlife Code, Subchapters C, E, L, or R; a Parks and Wildlife Code Class A or Class B Misdemeanor; a Parks and Wildlife Code Felony; or Parks and Wildlife Code, §63.002 (which prohibits the possession live game animals for any unauthorized purpose).  In general, the offenses involve the possession of live animals and serious violations of the Parks and Wildlife Code.  The purpose of the provisions is to allow the department to refuse to issue a deer breeder, Triple T, or DMP permit to a person who has been proven to exhibit disregard for statutes and regulations governing the taking or possession of wildlife, including the possession of live wildlife.

The Lacey Act is a federal statute that, among other things, prohibits trade in wildlife, fish, or plants that are taken, possessed, transported, or sold in violation of state law.  Although the federal government must prove that a violation of state law occurred in order to obtain a conviction under the Lacey Act, there is no requirement that a conviction also be obtained in a state court.  The department’s current rules provide only for denial of permit issuance or renewal upon conviction for a violation of specific state laws.  Since a Lacey Act conviction is a federal conviction for a violation of federal law, it may be possible for a person convicted of or assessed a civil penalty for a Lacey Act violation involving Texas law to continue to obtain deer breeder permits, DMPs, and Tripe T permits, if there was no concurrent prosecution by the state. Since concurrent investigations and prosecutions are redundant, time-consuming, and expensive, staff recommends amending current department rules to allow for denial of permit issuance or renewal of deer breeder permits, DMPs, and Tripe T permits on the basis of a conviction or the assessment of a civil penalty for Lacey Act violations.

At the March 31, 2010 meeting of the Regulations Committee, staff was authorized to publish the proposed rules in the Texas Register for public comment.  The proposed rules appeared in the April 23, 2010, issue of the Texas Register (35 TexReg 3211-3215).  Staff has collected public comment on the proposed rules and will present a summary at the meeting. 

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

“The Texas Parks and Wildlife Commission adopts amendments to §§65.109, concerning Permits to Trap, Transport, and Transplant Game Animals and Game Birds; 65.132, concerning Deer Management Permit (DMP); and 65.603, concerning Deer Breeder Permits, with changes as necessary to the proposed text as published in the April 23, 2010, issue of the Texas Register (35 TexReg 3211-3215).”

Attachments – 1

1.   Exhibit A – Proposed Rules


Commission Agenda Item No. 5
Exhibit A

Denial of Permit Issuance/Renewal for Lacey Act Violations
Triple T Permits, Deer Management Permits, Deer Breeder Permits
Proposal Preamble

1. Introduction.

         The Texas Parks and Wildlife Department proposes amendments to §§65.109, 65.132, and 65.603.  Section 65.109, concerning Permits for Trapping, Transporting, and Transplanting Game Animals and Game Birds (Triple T permit), also applies to permits for trapping, transporting and processing white-tailed deer, and permits for urban white-tailed deer removal.  Those permits are collectively referred to herein as Triple T permits.  Sections 65.132 and 65.603 concern Deer Management Permits (DMP) and Deer Breeder Permits (breeder permit), respectively.

         The proposed amendments would allow the department to refuse issuance or renewal of Triple T, DMP, or breeder permits to any person who has been convicted of or assessed a civil penalty for a violation of the federal Lacey Act, and would allow the department to prevent a person convicted or assessed a civil penalty for a Lacey Act violation from acting as an agent for any person under a Triple T, DMP, or deer breeder permit. The proposed amendments also alter §65.109(d) and §65.132(f) to allow the department to delay processing of permit or renewal applications if the applicant is a defendant in a prosecution for a Lacey Act violation.

         Additionally, the proposed amendment to §65.132, concerning Permit Application, would alter the period of validity of DMP permits in order to accommodate a proposed amendment to §65.136, concerning Release (published elsewhere in this issue of the Texas Register), which provides for release dates after August 31 for deer held under a DMP. Under current rule, a DMP is valid from September 1 through August 31, which is the state fiscal year. Because the proposed amendment to §65.136 would allow the department to specify release dates beyond August 31, it is necessary to establish a period of validity for each permit, based on the ecoregion of the state in which the property is located.

         Under current rules, the department may refuse to issue or renew a Triple T, DMP, or breeder permit for any person if that person has been, within five years of application, finally convicted of or received deferred adjudication for a violation of Parks and Wildlife Code, Chapter 43, Subchapters C, E, L, or R; a violation of Parks and Wildlife Code that is a Class A misdemeanor, a Class B misdemeanor, or felony; or a violation of Parks and Wildlife Code, §63.002. Current rules also allow the department to prevent anyone convicted of a violation listed above from acting as an agent of a permittee for up to five years. The purpose of the provisions is to protect native wildlife by preventing persons who have been proven to exhibit disregard for statutes and regulations governing the taking or possession of wildlife, particularly the possession of live wildlife, from obtaining permits.

         The Lacey Act (16 U.S.C. §§3371-3378) is a federal law enacted in 1900 that, among other things, prohibits interstate trade in or movement of wildlife, fish, or plants taken, possessed, transported or sold in violation of state law. Lacey Act prosecutions are normally conducted by the United States Department of Justice in federal courts. Although a Lacey Act conviction or civil penalty is predicated on a violation of state law, the federal government need only prove that a state law was violated; there is no requirement for there to be a record of conviction in a state jurisdiction.

         As a result of several recent Lacey Act convictions of Texas residents, it has come to the attention of the department that current department rules do not address the implications of such Lacey Act convictions on issuance or renewal of Triple T, DMP, or breeder permits. Although these Lacey Act cases involved violations of state law, the subjects were prosecuted in federal court under the Lacey Act.  If concurrent prosecutions had been conducted in state court for the underlying state law violations, current rules would have clearly provided for the denial of permit issuance or renewal upon obtaining a conviction.  However, the department’s rules are silent regarding the impact of these subjects being convicted in federal court for a violation of the Lacey Act.

         Rather than expending resources and time conducting concurrent prosecutions, the department believes that it is reasonable to use a Lacey Act conviction or civil penalty as the basis for denial of Triple T, DMP, or breeder permit issuance or renewal. The department reasons that conviction or civil penalty for a Lacey Act violation constitutes legal proof that a violation of state law occurred and it is therefore redundant and wasteful to pursue a conviction in state jurisdiction to prove something that has already been proven in a federal court.  The proposed amendment is necessary to ensure that such Lacey Act convictions or civil penalties are considered by the department in determining whether to issue to renew Triple T, DMP, or breeder permits.

         The proposed amendments also remove the five-year time period for possible disqualification from permit issuance, permit renewal, or acting as an agent with respect to Triple T, DMP, and deer breeder permits. The current five-year period of possible disqualification may be appropriate in some instances, but is not uniformly appropriate.  The department believes that a person who has been convicted of a violation of state law involving wildlife or fisheries resources has demonstrated a disregard for laws intended to protect the state’s wildlife resources.  Depending on the circumstances, such a person should not be entrusted with the privilege of a permit that authorizes the possession of live wildlife resources and should not be allowed to benefit from the use of those resources, for any period of time.

         The denial of issuance or renewal of a Triple T, DMP or deer breeder permit based on a Lacey Act conviction or civil penalty under the proposed amendment would not be automatic, but 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 a Lacey Act conviction or civil penalty would include, but not be limited to, the seriousness of the offence, the number of offenses, the existence or absences of a pattern 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.

2. Fiscal Note.

         Mr. Mitch Lockwood, Acting Big Game Program Director, 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 government as a result of enforcing or administering the rules.

3. Public Benefit/Cost Note.

         Mr. Lockwood 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 the ability of the department to prevent persons with proven disregard for conservation laws from participating in department permit programs involving live deer.

         (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. The department has determined that there will be no direct economic effect on small or micro-businesses or persons required to comply as a result of the proposed rules. The rules would not compel or mandate any action on the part of any entity, including small businesses or microbusinesses. In particular, the proposed rules would not add new reporting or recordkeeping requirements; require any new professional expertise, capital costs, or costs for modification of existing processes or procedures; lead to loss of sales or profits; change market competition; or increase taxes or fees. Accordingly, the department has not prepared a regulatory flexibility analysis under Government Code, Chapter 2006.

         (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.

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 amendment is proposed under Parks and Wildlife Code, §43.061, which requires the commission to adopt rules for the trapping, transporting, and transplanting of game animals and game birds under a permit issued by the department.

         The proposed amendment affects Parks and Wildlife Code, Chapter 43.

§65.109. Issuance of Permit.

                 (a) Permits authorized under this subchapter:

                         (1) will be issued, with the exception of permits to trap, transport, and process surplus white-tailed deer, only if the activities identified in the application are determined by the department to be in accordance with the department’s stocking policy;

                         (2) will be issued only if the application and any associated materials are approved by a Wildlife Division technician or biologist assigned to write wildlife management plans;

                         (3) do not exempt an applicant from the requirements of §§55.142 — 55.152 of this title (relating to Aerial Management of Wildlife and Exotic Animals).

                 (b) The department may refuse permit issuance or renewal to any person who [within five years of applying for a Triple T permit] has been:

                         (1) finally convicted of or received deferred adjudication for:

                                  (A) [(1)] a violation of Parks and Wildlife Code, Chapter 43, Subchapters C, E, L, or R;

                                  (B) [(2)] a violation of Parks and Wildlife Code that is a Class A misdemeanor, a Class B misdemeanor, or felony; or

                                  (C) [(3)] a violation of Parks and Wildlife Code, §63.002; or

                         (2) convicted, received deferred adjudication or pretrial diversion, or assessed a civil penalty for a violation of 16 U.S.C. §§3371-3378 (the Lacey Act).

                 (c) The department may prohibit any person [for a period of up to five years] from acting as an agent of any permittee if:

                         (1) the person has been convicted of or received deferred adjudication for an offense listed in subsection (b)(1)[(b)] of this section; or

                         (2) has been convicted, received deferred adjudication or pre-trial diversion, or assessed a civil penalty for an offense listed in subsection (b)(2) of this section.

                 (d) The department may delay the processing of a permit or renewal application if the applicant is a defendant in a criminal prosecution or proceeding to assess a civil penalty for:

                         (1) a violation of Parks and Wildlife Code, Chapter 43, Subchapters C, E, L, or R; [or]

                         (2) a violation of Parks and Wildlife Code, §63.002; or

                         (3) a violation of 16 U.S.C. §§3371-3378 [an offense listed in subsection (b) of this section].

                 (e) The department may refuse to issue a permit to any person the department has evidence is acting on behalf of or as a surrogate for another person who is prohibited by the provisions of this subchapter from engaging in permitted activities.

         The amendment is proposed under Parks and Wildlife Code, §43.603, which authorizes the commission to establish conditions for the deer management permit.

         The proposed amendment affects Parks and Wildlife Code, Chapter 43.

         §65.132. Permit Application.

                 (a) Applicants for a DMP shall complete and submit an application on a form supplied by the department. Applications for a DMP shall be accompanied by a deer management plan containing the information stipulated by the application form and the nonrefundable fee as specified in Chapter 53, Subchapter A, of this title (relating to Fees). Incomplete applications will be returned to the applicant and will not be processed until complete. A DMP will not be issued unless the applicant’s deer management plan has been approved by a Wildlife Division technician or biologist assigned to write wildlife management plans.

                 (b) A permit under this subchapter is valid from the date of issuance through the last release date authorized under the permit [September 1 of one year through August 31 of the immediately following year].

                 (c) A person who receives deferred adjudication for or is finally convicted of a violation involving §65.136 of this title (relating to Release) is prohibited from obtaining a DMP for a period of three years from the date the conviction is obtained or deferred adjudication was received.

                 (d) The department may refuse to issue a permit or permit renewal to any person who [within five years of applying for a permit] has been:

                         (1) convicted of or received deferred adjudication for:

                                  (A) [(1)] a violation of Parks and Wildlife Code, Chapter 43, Subchapters C, E, L, or R;

                                  (B) [(2)] a violation of Parks and Wildlife Code that is a Class A misdemeanor, a Class B misdemeanor, or felony; or

                                  (C) [(3)] a violation of Parks and Wildlife Code, §63.002; or

                         (2) convicted, received deferred adjudication or pretrial diversion, or assessed a civil penalty for a violation of 16 U.S.C. §§3371-3378 (the Lacey Act).

                 (e) The department may prohibit a person [for a period of up to five years] from acting as an agent for any permittee if the person:

                         (1) has been convicted of or received deferred adjudication for an offense listed in subsection (d)(1)[(d)] of this subsection; or

                         (2) has been convicted, received deferred adjudication or assessed a civil penalty for an offense listed in subsection (d)(2) of this section.

                 (f) The department may delay the processing of a permit or renewal application if the applicant is a defendant in a prosecution or proceeding to assess a civil penalty for:

                         (1) a violation of Parks and Wildlife Code, Chapter 43, Subchapters C, E, L, or R; [or]

                         (2) a violation of Parks and Wildlife Code, §63.002; or

                         (3) a violation of 16 U.S.C. §§3371-3378 (the Lacey Act).

                 (g) The department may refuse to issue a permit to any person the department has evidence is acting on behalf of or as a surrogate for another person who is prohibited by the provisions of this subchapter from engaging in permitted activities.

         The amendment is proposed under Parks and Wildlife Code, §43.357, which authorizes the commission to make rules governing the possession of breeder deer.

         The proposed amendment affects Parks and Wildlife Code, Chapter 43.

         §65.603. Application and Permit Issuance.

                 (a) An applicant for an initial deer breeder’s permit shall submit the following to the department:

                         (1) a completed application on a form supplied by the department;

                         (2) a letter of endorsement by a certified wildlife biologist which states that the biologist has conducted an inspection of the facility identified in the application and affirms that:

                                  (A) the facility identified in the application:

                                          (i) physically exists; and

                                          (ii) is adequate for the lawful conduct of activities governed by this subchapter; and

                                  (B) no deer are present within the facility;

                         (3) a diagram of the physical layout of the facility;

                         (4) the application processing fee specified in Chapter 53, Subchapter A, of this title (relating to Fees); and

                         (5) any additional information that the department determines is necessary to process the application.

                 (b) A deer breeder’s permit may be issued when:

                         (1) the application and associated materials have been approved by the department; and

                         (2) the department has received the fee as specified in Chapter 53, Subchapter A, of this title (relating to Fees).

                 (c) A deer breeder’s permit shall be valid from the date of issuance until the immediately following July 1.

                 (d) Except as provided in subsection (g) of this section, a deer breeder’s permit may be renewed annually, provided that the applicant:

                         (1) is in compliance with the provisions of this subchapter;

                         (2) has submitted a timely application for renewal or is, as determined by the department, making satisfactory progress towards resolution of deficiencies that prevent timely renewal;

                         (3) has filed the annual report in a timely fashion, as required by §65.608 of this title (relating to Annual Reports and Records); and

                         (4) has paid the permit renewal fee as specified in Chapter 53, Subchapter A, of this title (relating to Fees).

                 (e) An authorized agent may be added to or deleted from a permit at any time by faxing or mailing an agent amendment form to the department. No person added to a permit under this subsection shall participate in any activity governed by a permit until the department has received the agent amendment form.

                 (f) Except as provided by this subchapter for release, transfer, or transport of breeder deer, a deer breeder’s permit authorizes the holding of breeder deer only within the physical layout of a facility described by the diagram required by subsection (a)(3) of this section. If a permittee wishes to alter the exterior dimensions of a facility, either by enlargement or reconfiguration, the permittee shall submit an accurate diagram of the altered facility, indicating all changes to the existing facility, to the department. It is unlawful to introduce, cause the introduction of, or hold breeder deer anywhere other than within the dimensions of the facility as indicated by the diagram on file with the department.

                 (g) The department may refuse permit issuance or renewal to any person who [within five years of applying for a deer breeder’s permit] has been:

                         (1) finally convicted of or received deferred adjudication for:

                                  (A)[(1)] a violation of Parks and Wildlife Code, Chapter 43, Subchapters C, E, L, or R;

                                  (B)[(2)] a violation of Parks and Wildlife Code that is a Class B misdemeanor, a Class A misdemeanor, or felony; or

                                  (C)[(3)] a violation of Parks and Wildlife Code, §63.002; or

                         (2) convicted, 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).

                 (h) The department may prohibit any person [for a period of up to five years] from acting as an agent of any permittee if the person:

                         (1) has been convicted of or received deferred adjudication for an offense listed in subsection (g)(1)[subsection (g)] of this section; or

                         (2) has been convicted, received deferred adjudication or pre-trial diversion, or assessed a civil penalty for an offense listed in subsection (g)(2) of this section;

                 (i) The department may refuse to issue a permit to any person the department has evidence is acting on behalf of or as a surrogate for another person who is prohibited by the provisions of this subchapter from engaging in permitted activities.

                 (j) 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 first contact 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.

                         (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 Operations (or his or her designee);

                                  (B) the Director of the Wildlife Division; and

                                  (C) the Big Game Program Director.

                         (4) The decision of the review panel is final.

                         (5) The department shall report on an annual basis to the White-tailed Deer Advisory Committee the number and disposition of all reviews under this subsection.

         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


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