Commission Agenda Item No. 16
Presenter:  Scott Vaca

Action
Implementation of Legislation during the 82nd Texas Legislative Session
House Bill 716 — Permits for Aerial Management of Wildlife and Exotic Species
August 25, 2011

I.       Executive Summary:  This item presents for adoption, proposed amendments that would implement the provisions of House Bill 716, enacted by the 82nd Texas Legislature, which authorizes the Commission to promulgate rules allowing the holder of an aerial hunting permit to contract with a qualified landowner or landowner’s authorized representative to act as a gunner or observer for the take of feral hogs or coyotes from a helicopter.

II.      Discussion: House Bill 716 amended the Parks and Wildlife Code by adding new §43.1075, which allows a qualified landowner or landowner’s agent, as determined by commission rule, to contract to participate as a hunter or observer in using a helicopter to take depredating feral hogs or coyotes under the authority of a permit issued under Parks and Wildlife, Subchapter G.

Staff was authorized at the May, 2011 meeting of the Regulations Committee to publish proposed rules required or authorized by legislation enacted by the 82nd Legislature.  The proposed amendments were published in the July 22, 2011 issue of the Texas Register (36 TegReg 4641-4643).  Staff will present 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 proposed new 31 TAC §65.151 and §65.152, concerning Permits for Aerial Management of Wildlife and Exotic Species, with changes as necessary to the proposed text as published in the July 22, 2011, issue of the Texas Register (36 TexReg 4641-4643).”

Attachments — 1

  1. Exhibit A – Proposed Rules

Commission Agenda Item No. 16
Exhibit A

Rules Required or Authorized by Legislation
House Bill 716
Permits for Aerial Management of Wildlife and Exotic Species
Proposal Preamble

1. Introduction.

         The Texas Parks and Wildlife Department proposes amendments to §65.151 and §65.152, concerning Permits for Aerial Management of Wildlife and Exotic Species (hereafter, “aerial permits”). The proposed amendment to §65.151, concerning Definitions, would provide a meaning for the term “qualified landowner or landowner’s authorized agent.” The proposed amendment to §65.152, concerning General Rules, would allow qualified persons to contract for participation as a gunner or observer in the taking of depredating feral hogs or coyotes from a helicopter.

         House Bill 716 (HB 716), enacted by the 82nd Texas Legislature, Regular Session, 2011, amended Parks and Wildlife Code, Chapter 43, Subchapter G, by adding new §43.1075, which allows a qualified landowner or landowner’s agent, as determined by commission rule, to contract to participate as a hunter or observer in using a helicopter to take depredating feral hogs or coyotes under the authority of a permit issued under Parks and Wildlife, Subchapter G.

         The proposed amendment to 65.152, concerning Definitions, would define “qualified landowner or landowner’s agent” as “a person who has not been convicted of, pleaded nolo contendere to, or received deferred adjudication for a violation of Parks and Wildlife Code that is a Class A misdemeanor or felony, other than a violation of Parks and Wildlife Code, Chapter 31; or been convicted, pleaded nolo contendere to, received deferred adjudication or pre-trial diversion for, or assessed a civil penalty for a violation of 16 U.S.C. §§3371-3378 (the Lacey Act). The department believes that a person should be allowed to engage in the activity authorized under the provisions of HB 716, provided the person has not engaged in serious criminal behavior related to hunting and fishing laws. The definition excludes violations of Texas Parks and Wildlife Code, Chapter 31 (the Water Safety Act), because the department believes that violations related to water safety are not germane to the subject of aerial management of wildlife.

         Under current rules (§65.154(b)(1), the department will not issue a permit for the aerial management of wildlife and exotic animals to a person if the applicant or any pilot named in the application has 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. The purpose of the provision is to prevent persons who have been proven to exhibit disregard for statutes and regulations governing aerial wildlife management from obtaining permits, and the department believes that the current provisions are adequate and effective. The proposed amendment would, for the same reasons, apply a similar standard to persons seeking to contract with a permittee to participate as a gunner or observer in using a helicopter to take depredating feral hogs or coyotes, including provisions relating to convictions for violations of the federal Lacey Act.

         The Lacey Act (16 U.S.C. §§3371 — 3378) is a federal law initially enacted in 1900 to address a gap in wildlife law enforcement that allowed poachers to evade state law enforcement by taking wildlife in violation of a state law and then selling the wildlife in another state. See, Anderson, Robert S., The Lacey Act: America’s Premier Weapon in the Fight Against Unlawful Wildlife Trafficking, 16 Pub. Land L. Rev. 27 (1995). The Lacey Act, 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.

                 The denial of the ability to participate in the management of feral hogs or coyotes from a helicopter as a result of an adjudicative status listed in the proposed rules would not be automatic, but within the discretion of the department. Factors that may be considered by the department in determining whether to allow a person to participate in the aerial management of depredating feral hogs or coyotes based on adjudicative status include, but are not limited to, the seriousness of the offense, 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.

         The amendment to §65.154 would add new subsection (c) to allow a person holding a valid aerial permit to contract with a qualified landowner or landowner’s authorized agent to participate as a gunner or observer in the taking of depredating feral hogs or coyotes from a helicopter, provided that the permittee possesses a valid, properly executed written landowner’s authorization describing the activity. House Bill 716 allows a qualified landowner or landowner’s agent, as determined by commission rule, to contract to participate as a hunter or observer in using a helicopter to take depredating feral hogs or coyotes under the authority of a permit issued under Parks and Wildlife, Subchapter G. The proposed amendment would implement the statutory requirements and add the condition that a properly executed landowner authorization be possessed by the permittee. Under all other conditions, aerial management is conducted by non-paying gunners, who by federal law must be identified on a log maintained by the permittee. The requirement to possess a properly executed landowner authorization is intended to provide a tool to law enforcement by allowing enforcement personnel to be able to quickly and easily establish that personnel involved in the management of depredating feral hogs and coyotes are doing so as authorized agents of the landowner.

2. Fiscal Note.

         Mr. Scott Vaca, Assistant Chief for Wildlife Enforcement, 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.

         Chief Vaca 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 enhancement of the ability of landowners to control depredating feral hogs and coyotes.

         (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. To the extent that the proposed rules affect small businesses or microbusinesses, the department has determined that any effects will be positive, since the rules authorize a permittee to contract for participation in aerial services, which reduces labor costs and potentially involves increased revenue (if the contract stipulates monetary compensation). 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 Scott Vaca, Texas Parks and Wildlife Department 4200 Smith School Road, Austin, Texas, 78744; (512) 389-4626 (e-mail: scott.vaca@tpwd.state.tx.us).

5. Statutory Authority.

         The amendments are proposed under House Bill 716 (HB 716), enacted by the 82nd Texas Legislature, Regular Session, 2011, which amended Parks and Wildlife Code, Chapter 43, Subchapter G, to allow a qualified landowner or landowner’s agent, as determined by commission rule, to contract to participate as a hunter or observer in using a helicopter to take depredating feral hogs or coyotes under the authority of a permit issued under Parks and Wildlife, Subchapter G; and 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; including rules to prescribe forms and procedures for permit applications; establish procedures for the management of wildlife or exotic animals by the use of aircraft, limit the time and the place for which a permit is valid; prohibit acts;  and require, limit, or prohibit any activity as necessary to implement that subchapter.

         The proposed amendments affect Parks and Wildlife Code, Chapter 43, Subchapter G.

         §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) – (10) (No change.)

                 (11) Qualified landowner or landowner’s authorized agent—A person who has not:

                         (A) been convicted of, pleaded nolo contendere to, or received deferred adjudication for a violation of Parks and Wildlife Code that is a Class A misdemeanor or felony, not to include violations of Parks and Wildlife Code, Chapter 31; or

                         (B) convicted, pleaded nolo contendere to, 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).

         §65.152. General Rules.

                 (a) – (b) (no change.)

                 (c) It is lawful for a person who holds a permit under the authority of Parks and Wildlife Code, Chapter 43, Subchapter G, to contract with a qualified landowner or landowner’s authorized agent who wishes to act as a gunner or observer in the taking of depredating feral hogs or coyotes from a helicopter, provided that the permittee possesses a valid, properly executed landowner’s authorization describing the activity.

                 (d)[(c)]A person commits an offense if:

                         (1) – (4) (No change.)

                         (5) the person pays, barters, or exchanges anything of value to participate as a gunner or observer, except as may be otherwise provided in this subchapter;

                         (6) – (10) (No change.)

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

         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


Back to Top
Back to Top