Commission Agenda Item No. 16
Action
Statewide Fur-Bearing Animal Proclamation
August 2003

1. Introduction.

The Texas Parks and Wildlife Department proposes the repeal of §65.377 and §65.380, amendments to §§65.372, 65.374, 65.376, 65.378, and 65.379, and new §§65.377, 65.381, 65.383, and 65.385, concerning the Statewide Fur-bearing Animal Proclamation. The repeal of §65.377, concerning Sale or Purchase of Fur-bearing Animals, allows the creation of a new section addressing the same topics. New §65.380, concerning Penalty, would allow that section to be redesignated as new §65.385, and is necessary to create room within the existing numbered sections to accommodate new §65.381 and §65.383.

The amendment to §65.372, concerning Definitions: adds definitions of ‘consumer’ and ‘export,’ adds clarifying language to the definition of ‘commercial harvest,’ adds clarifying language to the definition of ‘finished product,’ and creates a comprehensive definition of the term ‘fur-bearing animal.’ The amendment is necessary, respectively, to: create a definition of a class of persons who are end-users of fur-bearing animals and to whom minimal documentation and licensing requirements apply; to define ‘export’ such that the state is able to regulate that activity, to make clear that commercial harvest is that harvest which takes place during the commercial trapping season; to comport the regulatory definition of ‘finished product’ with the statutory definition of ‘pelt’; and to create a definition of ‘fur-bearing animal’ that allows the term to be used in an inclusive sense (i.e., applying to parts of fur-bearing animals, pelts, carcasses, etc. as well as to an entire animal) so as to prevent repetition of terms and the creation of unnecessarily tedious regulatory language.

The amendment to §65.374, concerning General Rules, would add provisions requiring the tagging of all otter taken in the state with a CITES (Convention on International Trade in Endangered Species) tag and requiring all otter pelts brought into the state to be so tagged. The amendment would eliminate current subsections (b)-(g). The elimination of subsection (b) is necessary because it duplicates statute and is therefore superfluous; the elimination of subsection (c) is necessary because the provisions of the section are being removed to §65.376, concerning Possession of Live Fur-bearing Animals; the elimination of subsection (d) is necessary because the department will no longer sell retail fur buyer licenses; the elimination of subsection (e) is necessary because those provisions are being relocated in a revamped §65.377, which will comprehensively address issues of sales and purchases by various classes of permittees; the elimination of subsection (f) is necessary because it duplicates statute and is therefore superfluous; and the elimination of subsection (g) is necessary because that subsection will expire on its own terms on September 1, 2003.

The amendment to §65.376, concerning Possession of Live Fur-bearing Animals, would remove the provision for a waiver of facility inspection for persons who possess live fur-bearing animals under a propagation permit but who do not engage in commercial activity; eliminates subsection (e), which is being redesignated as new §65.383; and implements new subsection (g) to prohibit the take of fur-bearing animals from the wild by propagation permit except during the open commercial trapping season. The amendment is necessary to ensure that all facilities used to hold live fur-bearing animals are inspected for compliance with facility standards and to confine collection impacts on wild populations to the commercial season.

New §65.377, concerning Sale or Purchase of Fur-bearing Animals, restructures the section to increase clarity. The new section eliminates the current waiver of facility inspections for persons not engaged selling or trading, which is necessary because the department feels that anyone who receives a fur-bearing animal propagation license, whether they are engaged in commercial activities or not, should be subject to stated standards of humane care for animals in their custody. The new section also would clarify that live fur-bearing animals may be taken from the wild by propagators only during the open commercial season, which is necessary to ensure that commercial harvest takes places during that time of the year when fur-bearing animals are not rearing offspring. The new section is generally necessary because it makes intuitive sense to place all regulatory provisions concerning possession of live fur-bearing animals in a single section for ease of use. It is also necessary to set forth the various privileges afforded by each license type.

The amendment to §65.378, concerning Importation and Release, would eliminate a reference to release and would incorporate a provision concerning export of fur-bearing animals, which is being relocated from another section. The amendment is necessary because this rulemaking creates a new §65.381 to deal specifically with nuisance fur-bearing animals and because the subchapter is being reorganized to make it more user-friendly.

The amendment to §65.379, concerning Reporting Requirements, would require permittees to return all unused CITES tags to the department by a specified time each year, and would require permittees to maintain records for a period of two years following the period of validity of a permit and to make the records available to department employees acting within the scope of official duties. The amendment is necessary to maintain an accurate record of the take of otter in this state, to make the provisions of the subchapter consistent with recordkeeping requirements of other subchapters, and to ensure that factual documentation of all activities is available to the department during the time period that the statute of limitations is in effect for offenses under the subchapter.

New §65.381, concerning Nuisance Fur-bearing Animals, consolidates all provisions applying to nuisance animals in one section and adds a clarifying reference to regulations of the Texas Department of Health applicable to certain fur-bearing animals. The new section is necessary to provide an easily locatable, single-subject regulation that can be quickly consulted by persons involved with removal and release of nuisance animals.

New §65.383, concerning Taxidermy, consolidates in one section all provisions applying to possession of furbearing animals by taxidermists. The new section is necessary to provide a convenient, single-subject reference for taxidermists.

New §65.385, concerning Penalty, states where the penalties for violation of the subchapter can be found in the Parks and Wildlife Code. The new section is necessary because the provisions of the new section were previously in another section, which, because of this rulemaking must be redesignated.

2. Fiscal Note.

Robert Macdonald, regulations coordinator, has determined that for each of the first five years 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. Macdonald 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 clearer and more user-friendly regulations, as well as the enhanced ability of the department to discharge its statutory obligation to conserve fur-bearing animal resources by means of improved recordkeeping.

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

(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 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) 389-4992 (e-mail: robert.macdonald@tpwd.state.tx.us).

5. Statutory Authority.

The repeal, amendments, and new sections are proposed under Parks and Wildlife Code, Chapter 71, which authorizes the commission to regulate the taking, possession, propagation, transportation, exportation, importation, sale, and offering for sale of fur-bearing animals, pelts, and carcasses as the commission considers necessary to manage fur-bearing animals or to protect human health or property, and to provide for permit application forms, fees, procedures, and reports.

The repeals, amendments, and new sections are proposed under Parks and Wildlife Code, Chapter 71, which authorizes the commission to regulate the taking, possession, propagation, transportation, exportation, importation, sale, and offering for sale of fur-bearing animals, pelts, and carcasses as the commission considers necessary to manage fur-bearing animals or to protect human health or property, and to provide for permit application forms, fees, procedures, and reports.

The repeals affect Parks and Wildlife Code, Chapter 71.

§65.377. Sale or Purchase of Fur-bearing Animals or Their Pelts.

§65.380. Penalty.

§65.372. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. All other words and terms shall have the meanings assigned in Subchapter A of this chapter (relating to Statewide Hunting and Fishing Proclamation) or Parks and Wildlife Code, Chapter 71.

(1) Consumer - A person who purchases non-living fur-bearing animals or products made from fur-bearing animals for personal use or consumption and who does not sell, resell, trade, or barter the non-living fur-bearing animals or products made from fur-bearing animals in exchange for anything of value.

(2) Commercial harvest—The take of a fur-bearing animal under a trapping license during the season for commercial harvest established in §65.375 of this title (relating to Open Seasons; Means and Methods).

(3) Export – The transport of a fur-bearing animal across the boundaries of this state.

(4) [(2)] Finished product—The tanned pelt of a fur-bearing animal or any part [item manufactured from the pelt] of a fur-bearing animal (or its resulting products) that has been treated to prevent decomposition (by means other than refrigeration or freezing) and/or packaged for sale. A dried pelt is not a finished product.

(5) Fur-bearing animal – The animals listed in Parks and Wildlife Code, §71.001, living or dead, including their parts, carcasses, and pelts.

(6) [(3)] Nuisance fur-bearing animal—A fur-bearing animal that is depredating or a threat to human health or safety.

(7) [(4)] Recreational harvest—The take of a fur-bearing animal under a hunting license at any time, or under a trapper's license outside of the season for commercial harvest.

§65.374. General Rules.

(a) No person may take fur-bearing animals on public roads and highways or their rights-of-way.

(b) All otters taken in this state shall be permanently tagged with a department-issued federal CITES (Convention on the International Trade in Endangered Species) tag, valid for the year in which the otter was taken, within 90 days of take.

(c) All otter pelts imported into this state must be accompanied by evidence of lawful take or possession. [Each fur-bearing animal or pelt taken or possessed in violation of this subchapter shall constitute a separate offense.]

[(c) No person may possess a live skunk or civet cat without a letter of authorization from the wildlife division.]

[(d) No retail fur buyer may possess undried pelts during the period May 1 through October 31].

[(e) No wholesale fur dealer or retail fur buyer may purchase animal from a trapper from April 6 through October 31.]

[(f) Nuisance fur-bearing animals may be taken in any number by any means at any time.]

[(g) There is no open season on furbearing animals in any state-owned riverbed in Dimmit, Uvalde, and Zavala counties. The provisions of this subsection cease effect on September 1, 2003.]

§65.376. Possession of Live Fur-bearing Animals.

(a) No person other than the holder of a fur-bearing animal propagation license may possess a live fur-bearing animal at any time, except as otherwise provided in this chapter.

(b) A propagation license may be issued following an initial facility inspection by the department. Additional inspections may be made at department discretion. [For persons not engaged in selling or trading fur-bearing animals, there is no initial facility inspection; however, inspections may be performed at the discretion of the department.]

(c) The holder of a fur-bearing animal propagation license shall provide the following for each animal in possession:

(1) a sufficient supply of fresh water at all times;

(2) shelter from heat and inclement weather; and

(3) an enclosure of at least 20 inches in height and eight square feet in area. Enclosures shall be cleaned daily. A fur-bearing animal may be confined in an enclosure of no less than 20 inches in height and four square feet in area on a temporary basis for transportation purposes. For the purposes of this subsection, temporary basis means no more than 12 hours in any 24-hour period.

(d) Offspring of fur-bearing animals held under a propagation permit may be kept with their parents or siblings for up to 120 days from birth in an enclosure meeting the height and area requirements for a single animal.

(e) [Nothing in this subchapter shall prohibit a taxidermist from possessing for taxidermy purposes a fur-bearing animal or the pelt of a fur-bearing animal lawfully taken or possessed under this subchapter, provided the animal or pelt is accompanied by a wildlife resource document as prescribed by Subchapter A of this chapter (relating to Statewide Hunting and Fishing Proclamation).]

[(f)] Live fur-bearing animals may be taken and possessed for three days or less for instructional or demonstration purposes pursuant to a letter of authorization from the wildlife division.

(f) No person shall take a fur-bearing animal from the wild under a propagation permit except during the season provided for commercial harvest in §65.375(b) of this title (relating to Open Seasons; Means and Methods).

§65.377. Sale or Purchase of Fur-bearing Animals.

(a) Sale of Fur-bearing animals, their carcasses and pelts, and finished products.

(1) No person other than a licensed fur-bearing animal propagator may sell a live fur-bearing animal.

(2) No person other than a licensed trapper or wholesale fur dealer may sell the carcass or pelt of a fur-bearing animal. No trapper may sell a fur-bearing animal from April 6 through October 31.

(3) Finished products may be sold by anyone.

(b) Purchase of fur-bearing animals, their carcasses and pelts, and finished products.

(1) Except as provided in §65.378 (c) of this title (relating to Importation, Exportation, and Release of Fur-bearing Animals), no person other than a licensed fur-bearing animal propagator or a person holding a permit issued under Parks and Wildlife Code, Chapter 43, Subchapter C, may purchase a live fur-bearing animal.

(2) No person other than a licensed wholesale fur dealer or a consumer may purchase the carcass or pelt of a fur-bearing animal. A consumer must maintain proof of purchase until the pelt becomes a finished product or the carcass is cleaned for cooking or storage at the consumer’s permanent residence. No wholesale fur dealer may purchase a fur-bearing animal from a trapper from April 6 through October 31.

(3) Finished products may be purchased by anyone.

§65.378. Importation, Exportation, and Release of Fur-bearing Animals [or Their Pelts].

(a) No person may import live fur-bearing animals into this state from another state or country unless:

(1) a permit has been issued by the department for such importation and a copy of the completed permit accompanies any live fur-bearing animal being imported or is attached to any container used to import live fur-bearing animals;

(2) the imported animals are accompanied by a health certificate signed by a veterinarian accredited in the state of origin; and

(3) if the imported animals are foxes, raccoons, or skunks, a signed letter of authorization issued by the Texas Department of Health.

(b) Imported live fur-bearing animals and [,] live fur-bearing animals previously held in captivity[, and fur-bearing animals live-trapped as nuisances] may not be released into the wild without a letter of authorization from the wildlife division and the owner of the property where the release occurs. Animals released under provision of this subsection must be accounted for in a report filed with the department on or before the tenth day of the month following the month of release. The report shall list the species, number captured and released, date and location of capture, date and location of release, and name and address of person authorized to release.

(c) No person shall sell or export live fur-bearing animals outside this state without possessing a letter of authorization from the wildlife division. A request for authorization shall include written documentation verifying that the recipient of the live animals is in compliance with applicable regulations in the destination state. A copy of the completed authorization shall accompany the animals at all times during shipment or be attached to the shipping container used to export the animals.

§79.379. Reporting Requirements.

(a) Any person licensed as a [retail fur buyer or] wholesale fur dealer:

(1) must complete and file an appropriate annual report with the department by May 31 of each year;

(2) return all unused CITES tags to the department by May 31 of each year; and

(3) may not be in possession of unused CITES tags between May 31 and October 1 of any year.

(b) Any person licensed as a fur-bearing animal propagator must complete and file an appropriate annual report with the department by August 31 of each year.

(c) The department reserves the right to refuse permit issuance to any person not in compliance with this section.

(d) All records required by this section shall be retained and kept available for inspection upon request of a department employee acting within the official scope of duty for a period of two years following the period of validity of the permit under which they are required to be kept.

§65.381. Nuisance Fur-bearing Animals.

(a) Nuisance fur-bearing animals may be taken in any number by any means at any time.

(b) The provisions of 25 TAC Chapter 169, Subchapter A (relating to Rabies Control and Eradication) apply as necessary to fur-bearing animals.

(c) the provisions of §65.378(b) also apply to persons in possession of nuisance fur-bearing animals.

§65.383. Taxidermy. Nothing in this subchapter shall prohibit a taxidermist from possessing for taxidermy purposes a fur-bearing animal lawfully taken or possessed under this subchapter, provided the animal is accompanied by a wildlife resource document as prescribed by Subchapter A of this chapter (relating to Statewide Hunting and Fishing Proclamation), or, if the fur-bearing animal was taken outside of Texas, evidence of legal take, purchase, or possession from the state or country where the fur-bearing animal was taken.

§65.385. Penalty. The penalties for a violation of this subchapter are prescribed by Texas Parks and Wildlife Code, Chapter 71.

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