Commission Agenda Item No. 10
Presenter:  John Davis

Action
Commercial Nongame Permit Rules
August 25, 2011

I.       Executive Summary:  This item seeks adoption of proposed changes to rules governing the collection and sale of nongame wildlife.  The proposed amendments would:

II.      Discussion:  Under Parks and Wildlife Code, Chapter 67, the department is required to develop and administer management programs to ensure the continued ability of nongame species of fish and wildlife to perpetuate themselves successfully, and to conduct ongoing investigations of nongame fish and wildlife to develop information on populations, distribution, habitat needs, limiting factors, and any other biological or ecological data to determine appropriate management and regulatory information.  The commission is required to establish any limits on the taking, possession, propagation, transportation, importation, exportation, sale, or offering for sale of nongame fish or wildlife that the department considers necessary to manage the species.

At the May 25, 2011 Regulations Committee meeting, staff was authorized to publish proposed rules in the Texas Register for public comment.  The proposed rules appeared in the July 22, 2011, issue of the Texas Register (36 TexReg 4643-4644).  A summary of public comment on the proposed rules will be presented at the time of the hearing.

III.     Recommendation:  Staff recommends that the Commission adopt the following motions:

“The Texas Parks and Wildlife Commission adopts amendments to 31 TAC §§65.325, 65.327, and 65.331, concerning Commercial Nongame Permits, with changes as necessary to the proposed text as published in the July 22, 2011, issue of the Texas Register (36 TexReg 4643-4644).”

Attachments – 1

  1. Exhibit A – Proposed Rules

Commission Agenda Item No. 10
Exhibit A

Commercial Nongame Permit Rules
Proposal Preamble

1. Introduction.

         The Texas Parks and Wildlife Department proposes amendments to §§65.325, 65.327, and 65.331, concerning Commercial Nongame Permits.

         The proposed amendment to §65.325, concerning Applicability, would update a cross reference to another rule governing the take and possession of diamondback terrapins. Prior to 2009, rules governing recreational and commercial fisheries were located in Chapter 65, Wildlife. In 2009, the department relocated those rules to Chapter 57, Fisheries. The proposed amendment replaces the current cross reference to Chapter 65 in subsection (b)(6) with an updated cross reference to Chapter 57.

         The proposed amendment to §65.327, concerning Permit Required, would make several clarifying changes. In §65.327(b)(1)(D) and (E), and in paragraph (2)(B), the proposed amendment would add language to make it clear that species of nongame wildlife that are on the “black list” (nongame species that may not be taken from the wild for commercial purposes in Texas) may be imported. Although the current rules allow the importation of “black list” species, the department has received comments indicating that this is not clearly stated. The change is nonsubstantive, since the practice is lawful under current rule.

         The proposed amendment to §65.327 also would authorize commercial activity involving dead armadillos by holders of commercial nongame and commercial nongame dealer’s permits. Under Parks and Wildlife Code, §63.103, no person may sell or possess for the purpose of sale a live armadillo. The proposed amendment would allow commercial activities involving dead armadillos in accordance with the privileges already established for nongame wildlife for each class of permit and would reiterate the statutory provision prohibiting the sale of live armadillos.

         The proposed amendment to §65.327 also would alter subsection (b)(4) to correct an oversight. The current rule provides a permit exception for the sale of species of nongame wildlife on the “white list” (species of nongame wildlife that may be collected or possessed for commercial purposes) as food items prepared for immediate consumption. The department has determined that technically, the current exception inadvertently does not apply to three species of turtles listed in §65.331(b), which is unintended. The proposed amendment would amend the reference to §65.331 to add a reference to §65.331(b).

         The proposed amendment to §65.331, concerning Commercial Activity, would remove all species of bats from the provisions of the subchapter. Parks and Wildlife Code, §63.101, prohibits the hunting, sale, offer for sale, purchase, offer to purchase, and possession after purchase of bats or any part of a bat. Although the current rules include all species of indigenous bats on the “black list,” which prohibits their collection for commercial purposes, there is a conflict between the absolute statutory prohibition and provisions of the current rules that allow possession of “black list” species for non-commercial purposes and the importation of “black list” species for commercial purposes. Therefore, the proposed amendment would eliminate bats from the black list, which would eliminate all conflict with the provisions of the Parks and Wildlife Code.

2. Fiscal Note.

         Mr. John Young, staff mammologist, 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 and local governments as a result of enforcing or administering the rules.

3. Public Benefit/Cost Note.

         Mr. Young 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 accurate references, clear regulatory language, elimination of regulatory conflicts, and the opportunity for enjoyment of the benefits of nongame wildlife within the tenets of sound biological management.

         (B) There will be no adverse economic effect on persons required to comply with the rules as proposed.

         (C) 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 affect on small businesses and micro-businesses. As required by Government Code, §2006.002(g), the Office of the Attorney General has prepared guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small 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. Since the proposed rules do not affect small businesses or microbusinesses, the department has determined that the proposed amendment will not impose any direct adverse economic effects on small businesses or microbusinesses. Accordingly, the department has not prepared a regulatory flexibility analysis under Government Code, Chapter 2006.

         (D) 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.

         (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 John Young, Texas Parks and Wildlife Department 4200 Smith School Road, Austin, Texas, 78744; (512) 389-8047 (e-mail: john.young@tpwd.state.tx.us).

5. Statutory Authority.

         The amendments are proposed under the authority of Parks and Wildlife Code, §67.004, which authorizes the commission to establish any limits on the taking, possession, propagation, transportation, importation, exportation, sale, or offering for sale of nongame fish or wildlife that the department considers necessary to manage the species; and §67.0041, which authorizes the department to issue permits for the taking, possession, propagation, transportation, sale, importation, or exportation of a nongame species of fish or wildlife if necessary to properly manage that species.

         The proposed amendments affect Parks and Wildlife Code, Chapter 67.

         §65.325. Applicability.

                 (a) (No change.)

                 (b) Exceptions. This subchapter does not apply to the following nongame wildlife:

                         (1) – (5) (No change.)

                         (6) diamondback terrapin (Malaclemys terrapin), which are addressed under the provisions of §57.972 of this title (relating to General Rules)[§65.82 of this title (relating to Other Aquatic Life)]; or

                         (7) (No change.)

                 (c) (No change.)

         §65.327. Permit Required.

                 (a) (No change.)

                 (b) Permit Privileges and Restrictions.

                         (1) The holder of a valid nongame dealer permit may:

                                  (A) collect nongame wildlife listed in §65.331(b) and (d)[§65.331(d)] of this title (relating to Commercial Activity) from the wild;

                                  (B) – (C) (No change.)

                                  (D) import nongame wildlife, including species listed in §65.331(e) of this title, into Texas for any purpose, including sale or resale, or for purposes of export, provided the person:

                                          (i) – (iv) (No change.)

                                  (E) export lawfully obtained nongame wildlife, including species listed in §65.331(e) of this title, from Texas for any reason, including sale or resale, provided the person:

                                          (i) – (ii) (No change.)

                                  (F) engage in captive breeding of all species of nongame wildlife; and

                                  (G) possess, transport, purchase, sell, resell, import, or export dead armadillos (Dasypus novemcinctus); however, the possession, transportation, sale, resale, import, or export of live armadillos is prohibited under Parks and Wildlife Code, §63.103.

                         (2) The holder of a valid nongame permit:

                                  (A) (No change.)

                                  (B) may purchase or acquire nongame wildlife, including species listed in §65.331(e) of this title, from the holder of a valid nongame dealer permit or lawful out-of-state source; but

                                  (C) may sell only to the holder of a valid nongame dealer permit; and.

                                  (D) may possess, transport, purchase, sell, resell, import, or export dead armadillos (Dasypus novemcinctus), however:

                                          (i) dead armadillos may be sold only to the holder of a valid nongame dealer permit; and

                                          (ii) the possession, transportation, sale, resale, import, or export of live armadillos is prohibited under Parks and Wildlife Code, §63.103.

                         (3) (No change.)

                         (4) A permit is not required for any person to sell nongame wildlife listed in §65.331(b) or (d)[§65.331(d)] of this title for and ready for immediate consumption in individual portion servings, and which are subject to limited sales or use tax, provided the person maintains a receipt identifying the source of the nongame wildlife.

                         (5) – (6) (No change.)

                 (c) – (e) (No change.)

         §65.331. Commercial Activity.

                 (a) – (d) (No change.) 

                 (e) No person shall engage in commercial activity involving any nongame species not listed in subsection (d) of this section, except as provided in §65.327 of this title (relating to Permit Required) and subsection (b) of this section. This prohibition on commercial activity includes, but is not limited to, the following species:

Salamanders
(No change.)

Frogs and Toads
(No change.)

Turtles
(No change.)

Lizards
(No change.)

Snakes
(No change.)

Mammals
Southern Short-tailed Shrew (Blarina carolinensis)
Elliot’s Short-tailed Shrew (Blarina hylophaga)
Least Shrew (Cryptotis parva)
Desert Shrew (Notiosorex crawfordi)
Eastern Mole (Scalopus aquaticus)
[Pallid Bat (Antrozous pallidus)]
[Mexican Long-tongued Bat (Choeronycteris mexicana)]
[Big Brown Bat (Eptesicus fuscus)]
[Western Mastiff Bat (Eumops perotis)]
[Silver-haired Bat (Lasionycteris noctivagans)]
[Western Red Bat (Lasiurus blossevillii)]
[Eastern Red Bat (Lasiurus borealis)]
[Hoary Bat (Lasiurus cinereus)]
[Northern Yellow Bat (Lasiurus intermedius)]
[Seminole Bat (Lasiurus seminolus)]
[Ghost-faced Bat (Mormoops megalophylla)]
[Southeastern Myotis (Myotis austroriparius)]
[California Myotis (Myotis californicus)]
[Western Small-footed Myotis (Myotis ciliolabrum)]
[Little Brown Myotis (Myotis lucifugus)]
[Northern Myotis (Myotis septentrionalis)]
[Fringed Myotis (Myotis thysanodes)]
[Cave Myotis (Myotis velifer)]
[Long-legged Myotis (Myotis volans)]
[Yuma Myotis (Myotis yumanensis)]
[Evening Bat (Nycticeius humeralis)]
[Pocketed Free-tailed Bat (Nyctinomops femorosacca)]
[Big Free-tailed Bat (Nyctinomops macrotis)]
[Western Pipistrelle (Pipistrellus hesperus)]
[Eastern Pipistrelle (Pipistrellus subflavus)]
[Townsend’s Big-eared Bat (Plecotus townsendii)]
[Brazilian Free-tailed Bat (Tadarida brasiliensis)]
Mexican Ground Squirrel (Spermophilus mexicanus)
Gray-footed Chipmunk (Tamias canipes)
Yellow-faced Pocket Gopher (Cratogeomys castanops)
Desert Pocket Gopher (Geomys arenarius)
Attwater’s Pocket Gopher (Geomys attwateri)
Baird’s Pocket Gopher (Geomys breviceps)
Plains Pocket Gopher (Geomys bursarius)
Jones’ Pocket Gopher (Geomys knoxjonesi)
Texas Pocket Gopher (Geomys personatus)
Llano Pocket Gopher (Geomys texensis)
Botta’s Pocket Gopher (Thomomys bottae)
Northern Pygmy Mouse (Baiomys taylori)
Hispid Pocket Mouse (Chaetodipus hispidus)
Rock Pocket Mouse (Chaetodipus intermedius)
Nelson’s Pocket Mouse (Chaetodipus nelsoni)
Desert Pocket Mouse (Chaetodipus penicillatus)
Gulf Coast Kangaroo Rat (Dipodomys compactus)
Ord’s Kangaroo Rat (Dipodomys ordii)
Banner-tailed Kangaroo Rat (Dipodomys spectabilis)
Mexican Spiny Pocket Mouse (Liomys irroratus)
Mexican Vole (Microtus mexicanus)
Prairie Vole (Microtus ochrogaster)
Woodland Vole (Microtus pinetorum)
White-throated Woodrat (Neotoma albigula)
Eastern Woodrat (Neotoma floridana)
Golden Mouse (Ochrotomys nuttalli)
Mearns’ Grasshopper Mouse (Onychomys arenicola)
Northern Grasshopper Mouse (Onychomys leucogaster)
Marsh Rice Rat (Oryzomys palustris)
Plains Pocket Mouse (Perognathus flavescens)
Silky Pocket Mouse (Perognathus flavus)
Merriam’s Pocket Mouse (Perognathus merriami)
Texas Mouse (Peromyscus attwateri)
Brush Mouse (Peromyscus boylii)
Cactus Mouse (Peromyscus eremicus)
Cotton Mouse (Peromyscus gossypinus)
White-footed Mouse (Peromyscus leucopus)
Deer Mouse (Peromyscus maniculatus)
Northern Rock Mouse (Peromyscus nasutus)
White-ankled Mouse (Peromyscus pectoralis)
Piñon Mouse (Peromyscus truei)
Fulvous Harvest Mouse (Reithrodontomys fulvescens)
Eastern Harvest Mouse (Reithrodontomys humulis)
Western Harvest Mouse (Reithrodontomys megalotis)
Plains Harvest Mouse (Reithrodontomys montanus)
Mexican Woodrat (Neotoma mexicana)
Southern Plains Woodrat (Neotoma micropus)
Tawny-bellied Cotton Rat (Sigmodon fulviventer)
Hispid Cotton Rat (Sigmodon hispidus)
Yellow-nosed Cotton Rat (Sigmodon ochrognathus)
Porcupine (Erethizon dorsatum)
Long-tailed Weasel (Mustela frenata)

         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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