Commission Agenda Item No. 7
Presenter: Mitch Lockwood

Action
Legislation Requiring or Authorizing Rulemaking
Deer Breeder Permits
November 7, 2013

I.       Executive Summary:  This item seeks adoption of proposed amendments to the rules governing deer breeder’s permits. The proposed amendments would provide for the issuance of three-year and five-year permits to qualified permit holders and alter fee provisions to accommodate those changes.

II.     Discussion:  Earlier this year the 83rd Texas Legislature enacted Senate Bill 820, which amended Parks and Wildlife Code, Chapter 43, Subchapter L, to authorize the department to issue deer breeder’s permits with a three-year or five-year period of validity. At the August 2013 Work Session, the Commission authorized staff to publish the proposed rules in the Texas Register for public comment. The proposed rules appeared in the October 4, 2013, issue of the Texas Register (38 TexReg 6869, 6875). 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 proposed motion:

“The Texas Parks and Wildlife Commission adopts amendments to §53.14, concerning Deer Management and Removal Permits, and §65.603, concerning Application and Permit Issuance, with changes as necessary to the proposed text as published in the October 4, 2013 issue of the Texas Register (38 TexReg 6869, 6875).”

Attachments—2

  1. Exhibit A – Proposed Deer Breeder Permit Rule
  2. Exhibit B – Proposed Fee Rule

Commission Agenda Item No. 7
Exhibit A

SENATE BILL 820
DEER BREEDER’S PERMIT
PROPOSAL PREAMBLE

1. Introduction.

         The Texas Parks and Wildlife Department proposes an amendment to §65.603, concerning Application and Permit Issuance. The proposed amendment would create a three-year and a five-year deer breeder’s permit renewal option, which would be available to persons who have possessed a deer breeder’s permit for at least the three years immediately preceding application for renewal and have been in substantial compliance with department rules governing deer breeder’s permits and the provisions of Parks and Wildlife Code, Chapter 43, Subchapters L (Deer Breeder’s Permit) and X (Deer Disposition Protocol).

         Under current rules, the department issues deer breeder’s permits and renewals on a one-year basis. The 83rd Texas Legislature (Regular Session), enacted Senate Bill (S.B.) 820, which amended Parks and Wildlife Code, §43.352 to authorize the department to issue deer breeder’s permits with a three-year or five-year period of validity.  Parks and Wildlife Code, §43.352, as amended by S.B. 820 provides that a three-year or five-year permit “is available only to a person who (1) has held a deer breeder’s permit for the three consecutive permit years immediately preceding the date of the application for a three-year or five-year permit; (2) agrees to submit the annual reports required under this subchapter electronically; and (3) meets any other criteria established by rule of the commission.” The proposed amendment would authorize the issuance of a deer breeder’s permit renewal with a three-year or five-year period of validity, provided the applicant, in addition to meeting the requirements of Parks and Wildlife Code, §43.352, has been in substantial compliance with 31 TAC Chapter 65, Subchapter T (Deer Breeder Permits), and the provisions of Parks and Wildlife Code, Chapter 43, Subchapters L and X and has met the other criteria set out in §65.603(d) for the three-year period preceding the application for a three-year or five-year permit.  The proposed amendment would also modify §65.603(d) to clarify that the criteria for renewal of any deer breeder permit includes substantial compliance with the provisions of Chapter 65, Subchapter T, and Parks and Wildlife Code, Chapter 43, Subchapters L and X.

         The department does not intend for “substantial compliance” to mean total or perfect compliance and does not intend for minor, non-habitual, or understandable irregularities to be an automatic bar to obtaining a three-year or five-year permit renewal. The department intends to consider a number of factors and make such determinations on a case-by-case basis; however, egregious, problematic, and repeated instances of noncompliance will constitute grounds for refusal to issue a permit renewal.  The factors that may be considered by the department in determining whether to issue a permit renewal would include, but not be limited to, the number and nature of instances of noncompliance, the existence or absences of a pattern of noncompliance, and the effectiveness of good-faith efforts made by the permittee to correct or remediate deficiencies.

         The proposed amendments are for the purpose of implementing only the three-year and five-year permit options contained in S.B. 820.  Any rules necessary to implement other provisions of S.B. 820 will be considered and proposed at a later date.

2. Fiscal Note.

         Mitch Lockwood, Big Game Program Director, has determined that for each of the first five years that the rule as proposed is in effect, other than the initial computer programming adjustments necessary for initial implementation of the rule, there will be no fiscal implications to state or local governments as a result of enforcing or administering the rule. The department notes that any other impacts to the department will be positive, since the department will not have to bear the administrative expense of annual permit renewal for persons who hold a three-year or five-year permit.

3. Public Benefit/Cost Note.

         Mr. Lockwood also has determined that for each of the first five years the rule as proposed is in effect:

         (A) The public benefit anticipated as a result of enforcing or administering the rule as proposed will be greater efficiency in program administration.

         (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. 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, commission 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 because the rule does not substantively alter any requirement currently in effect, but only makes permit renewals of longer term available to persons already in compliance with existing standards, there will be no adverse economic effects on small businesses, microbusinesses, or persons required to comply with the rule as proposed. 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 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.

4. Request for Public Comment.

         Comments on the proposed rule may be submitted to http://www.tpwd.state.tx.us/business/feedback/public_comment/ or Robert Macdonald, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas, 78744; (512) 389-4775 (e-mail: robert.macdonald@tpwd.texas.gov).

5. Statutory Authority.

         The amendment is proposed under the authority of Parks and Wildlife Code, §43.352, which authorizes the commission to by rule establish criteria for the issuance of a deer breeder’s permit with a period of validity of three years or five years.

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

6. Text.

         §65.603. Application and Permit Issuance.

                 (a) – (b) (No change.)

                 (c) An initial[(A)]deer breeder’s permit shall be a one-year permit valid from the date of issuance until the immediately following July 1. The department may issue a three or five-year deer breeder’s permit if the permit holder has met the requirements of subsection (d) of this section for the three-year period immediately prior to application for a three or five-year permit renewal. A three-year or five-year deer breeder permit renewal is valid for the three-year or five-year period specified on the permit.

                 (d) Except as provided in subsection (g) of this section, a deer breeder’s one, three, or five-year permit may be renewed prior to the date of expiration[annually], provided that the applicant:

                         (1) is in substantial compliance with the provisions of this subchapter and Parks and Wildlife Code, Chapter 43, Subchapters L and X;

                         (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);

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

                         (5) for a permit renewal of three-years or five-years, meets the criteria for a three-year and five-year permit specified in Parks and Wildlife Code, §43.352.

                 (e) – (j) (No change.)

                 This agency hereby certifies that the proposal has been reviewed and found to be within the agency’s authority to adopt.

         Issued in Austin, Texas, on


Commission Agenda Item No. 7
Exhibit B

SENATE BILL 820
DEER BREEDER’S PERMIT FEES
PROPOSAL PREAMBLE

1. Introduction.
         The Texas Parks and Wildlife Department proposes an amendment to §53.14, concerning Deer Management and Removal Permits. The proposed amendment would establish the fees for a three-year and a five-year deer breeder’s permit renewal. In another proposed rulemaking published elsewhere in this issue of the Texas Register, the department proposes to create three-year and five-year renewal options for deer breeder’s permits.

         Under current rules, the department issues deer breeder’s permits and renewal on a one-year basis with an annual fee of $200. The 83rd Texas Legislature (Regular Session), enacted Senate Bill (S.B.) 820, which amended Parks and Wildlife Code, §43.352 to authorize the department to issue deer breeder’s permits with a three-year or five-year period of validity. The department’s fee rules therefore need to reflect the longer permit terms ($600 for a three-year permit renewal and $1,000 for a five-year permit renewal).

2. Fiscal Note.

         Mitch Lockwood, Big Game Program Director, has determined that for each of the first five years that the rule as proposed is in effect, other than the initial computer programming adjustments necessary for initial implementation of the rule, there will be no fiscal implications to state or local governments as a result of enforcing or administering the rule.  The department notes that any other impacts to the department will be positive, since the department will not have to bear the administrative expense of processing annual permit renewal fees for persons who hold a three-year or five-year permit.

3. Public Benefit/Cost Note.

         Mr. Lockwood also has determined that for each of the first five years the rule as proposed is in effect:

         (A) The public benefit anticipated as a result of enforcing or administering the rule as proposed will be accurate fee rules.

         (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. 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, commission 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 there will be no adverse economic effect on small businesses, microbusinesses, or persons required to comply with the rule as proposed, because the proposed rule does not alter the annual permit fee. 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 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.

4. Request for Public Comment.

         Comments on the proposed rule may be submitted to http://www.tpwd.state.tx.us/business/feedback/public_comment/ or Robert Macdonald, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas, 78744; (512) 389-4775 (e-mail: robert.macdonald@tpwd.texas.gov).

5. Statutory Authority.

         The amendment is proposed under the authority of Parks and Wildlife Code, §43.352, which authorizes the commission to by rule establish criteria for the issuance of a deer breeder’s permit with a period of validity of three years or five years.

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

6. Text.

         §53.14. Deer Management and Removal Permits.

                 (a) Deer breeding and related permits.

                         (1) One-year deer[Deer] breeder’s and deer breeder’s renewal — $200;

                         (2) Three-year breeder’s renewal — $600; and

                          (3) Five-year breeder’s renewal — $1,000.

                 (b) – (d) (No change.)

         This agency hereby certifies that the proposal has been reviewed and found to be within the agency’s authority to adopt.

         Issued in Austin, Texas, on


Back to Top
Back to Top