Commission Agenda Item No. 3
Exhibit A

PERMITS FOR AERIAL MANAGEMENT OF WILDLIFE AND EXOTIC SPECIES

1. Introduction.

         The Texas Parks and Wildlife Department proposes the repeal of §§65.156 — 65.159 and amendments to §§65.151-65.154, 65.160, and 65.161, concerning Permits for Aerial Management of Wildlife and Exotic Species.  The proposed repeals and amendments are generally intended to provide greater administrative efficiencies by removing obsolete or unnecessary provisions, streamlining administrative processes, and clarifying regulatory language to enhance compliance and enforcement.

         Under federal law (16 U.S.C. §742j-1, commonly referred as the Airborne Hunting Act, or AHA) it is unlawful to shoot or attempt to shoot or intentionally harass any bird, fish, or other animal from aircraft except for certain specified reasons, including protection of wildlife, livestock, and human health. Under Parks and Wildlife Code, §43.109, the Parks and Wildlife Commission (Commission) is authorized to promulgate regulations governing the management of wildlife by the use of aircraft.

         The proposed repeal of §65.156, concerning Amendment of Permit, is necessary because the provisions governing the amendment of an aerial management permit (AMP) are addressed in the proposed amendment to §65.154(c). Similarly, the proposed repeal of §65.157, concerning Renewal of Permit, is necessary because the provisions for renewal of an AMP are addressed in the proposed amendment to §65.154(b).

         The proposed repeal of §65.158, concerning Permit Not Transferable, is necessary to incorporate the contents of that section into proposed new §65.154(i), which provides that an AMP is not transferable or assignable.

         The proposed repeal of §65.159, concerning Permit Fee, is necessary because the fee requirement is being incorporated in the proposed amendment to §65.154(b).

         The proposed amendments make several changes repeatedly throughout the rules, as follows.

         The word “hunt” is replaced with the word “take” throughout the rules, except in instances in which “hunt” is required by statute or refers to an activity that is prohibited. Under both state and federal law it is unlawful to hunt for recreational purposes from an aircraft; therefore, the use of the word “take” is technically more accurate when referring to the activities authorized by a permit issued under the subchapter. As noted elsewhere in this preamble, the term “take” is defined in Parks and Wildlife Code, §1.101(5), and includes the attempt to take.

         The proposed amendments also create a shorthand term (“aerial management permit” or “AMP”) to be used in place of the lengthier “permit to manage wildlife or exotic animals by use of wildlife” or generic “permit.”

         The proposed amendment to §65.151, concerning Definitions, consists of several components.

         The proposed amendment would eliminate §65.151(3), which is the definition for “convicted.”  Because the proposed amendment to §65.154 would add new subsection (e) to establish the bases upon which the department may refuse to issue or renew a permit, the current definition of “convicted” is unnecessary.

         The proposed amendment to §65.151 would add new paragraph (4) to provide the acronym for the Federal Aviation Administration, which is the federal agency with aviation oversight. The proposed amendment is intended to provide a convenient shorthand reference in order to avoid repeating a lengthier term.

         The proposed amendment to §65.151 would alter current paragraph (5) to clarify that a gunner can be a landowner, agent, or subagent. The current definition does not precisely identify who is included in the definition of “a gunner” under an AMP. The proposed amendment is intended to provide specificity in order to avoid confusion. The proposed amendment also would add an acronym for the landowner’s authorization (LOA) for ease of reference.

         The proposed amendment to §65.151 also would alter current paragraph (6) to accommodate a change in terminology created by proposed new paragraph (7) to refer to the landowner’s authorized agent.

         The proposed amendment to §65.151 would add new paragraph (7) to define “landowner’s authorized agent (agent)” as “a person authorized by a landowner to act on behalf of the landowner.” The proposed amendment is intended to provide an absolute standard that is not subject to equivocation, which is necessary to avoid confusion.

         The proposed amendment to §65.151 would alter current paragraph (7) (new paragraph (8) to clarify that the definition of “observer” includes a landowner, agent, or subagent may who is on board act as an observer during AMP activities. Currently, this definition does not precisely identify who is included in the definition of “observer” under an AMP.

         The proposed amendment to §65.151 would eliminate current paragraph (8), which defines the term “on file.” The proposed amendments individually address situations in which the department requires certain information to have been submitted to the department, which makes the current definition unnecessary.

         The proposed amendment to §65.151 would eliminate current paragraph (9), which defines the term “permit.” The proposed amendments replace the generic term “permit” with the specific acronym AMP (aerial management permit) throughout the rules.

         The proposed amendment would alter current paragraph (10) (new paragraph (9)) to eliminate a tautology (using “pilot” to define the term “pilot”) and to clarify that the word “pilot” includes co-pilots.

         The proposed amendment to §65.151 would alter current paragraph (11) (new paragraph (10)) to define “qualified landowner, agent, or subagent.” Parks and Wildlife Code, §43.1075, provides that “a qualified landowner or landowner’s agent, as determined by commission rule, may 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 this subchapter.” The current definition establishes a standard, based on a person’s criminal history with respect to violations of wildlife law, to determine whether that person is qualified to act a gunner or observer. As noted previously, the proposed amendment to §65.154 would add new subsection (e) to enumerate the bases upon which a person would not be authorized to act as an observer or gunner; therefore, “qualified landowner, agent, or subagent” would be defined as “a person who is not prohibited from obtaining a permit or acting as a gunner or observer under the provisions of §65.154(e) of this title (relating to Issuance of Permit; Amendment and Renewal).”

         The proposed amendment to §65.151 also would add new paragraph (11) to define “subagent” as “a person designated by an agent to act as a gunner or observer for the purpose of taking feral hogs or coyotes.” Proposed §65.152(c) would allow subagents to be designated for the purpose of taking feral hogs and coyotes from helicopters.  As a result, the term is used throughout the proposed rules; therefore, the term must be defined.

         The proposed amendment to §65.152, concerning General Rules, would also consist of several components.

         The proposed amendment to §65.152(a) would clarify that a person with an AMP is authorized to conduct AMP activities on the specific tract or tracts of land authorized by the LOA. Under the current rule, a permit holder “is authorized to engage in the management of wildlife and exotic animals by the use of aircraft only on land named in the landowner’s authorization.” The proposed rules are intended to ensure specificity in the description of the land on which AMP activities are to be undertaken. The department has determined that the current language could be misunderstood as allowing less specificity; therefore, the amendment would state that a permit holder is authorized to engage in the management of wildlife and exotic animals by the use of aircraft “only on the specific tract(s) of land specified in the LOA.”

         The proposed amendment to §65.152(b) would alter language regarding the flight log required under the subchapter. Under the current rule, the pilot of an aircraft used for aerial management must “maintain a daily flight log and report.” The department has determined that the current language could be misunderstood to mean that a daily flight logs could be created at the end of the reporting period. However, the department’s intent is that the daily flight log be maintained on a daily basis; therefore, the amendment would state that the pilot of an aircraft used for aerial management must “maintain, on a daily basis, a flight log and report.”

         The proposed amendment to §65.152(c) would add “subagent” to the list of persons that may be contracted with by a AMP holder for the taking of feral hogs and coyotes from a helicopter, and would specify that such contracts be in writing. Parks and Wildlife Code, §43.1075, provides that “a qualified landowner or landowner’s agent, as determined by commission rule, may 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 this subchapter.” As noted previously in the discussion of the proposed amendments to §65.151, the proposed amendment to §65.152(c) would allow subagents to be designated for the purpose of taking feral hogs and coyotes from helicopters. The department believes that it is in the best interests of all concerned that any contracts between landowners, agents, and subagents for the take of feral hogs and coyotes from helicopters be in writing.

         The proposed amendment to §65.152(d) would provide several clarifications. Current  §65.152(d) consists of a list of specific actions that are offenses under the subchapter if committed by “a person.” In the interests of clarity, the proposed amendment would stipulate that the word “person” includes a pilot, applicant, gunner, observer, or subagent.

         Current §65.152(d)(1) provides that it is in offense to “hunt, shoot, shoot at, kill or attempt to kill” wildlife or exotic wildlife other than as authorized under a permit or LOA.” Under Parks and Wildlife Code, §43.103(5), “management by the use of aircraft” is defined as “counting, photographing, relocating, capturing, or hunting by the use of aircraft.” The proposed amendment would re-word the current regulatory provision to make it consistent with the statutory provision, adding “take” and including “attempt to count, photograph, relocate, capture, hunt, or take.” Under Parks and Wildlife Code, §1.101, “hunt” is defined as “capture, trap, take, or kill, or an attempt to capture, trap, take, or kill” and “take” is defined as “collect, hook, hunt, net, shoot, or snare, by any means or device, and includes an attempt to take or to pursue in order to take.” The department has determined that given the many different actions and attempted actions that can be construed as hunting or taking, it is prudent to make sure that all of them are explicitly cited in regulation. The same alteration is made in the proposed amendment to subsection (d)(9) for the same rationale.

         The proposed amendment to §65.152(d)(2) would eliminate the phrase “disturbs, hazes, or buzzes” because the word “harasses” includes those actions. Specifically, “harass” is defined in Parks and Wildlife Code, section 43.103(4) to include “disturb, worry, molest, harry, torment rally concentrate, drive, or herd.”

         The proposed amendment would eliminate current §65.152(d)(3). As noted previously in this preamble, the proposed amendment to §65.154 would add new subsection (e) to establish the bases upon which the department could refuse to issue or renew a permit, which makes current §65.152(d)(3) unnecessary.

         The proposed amendment would add a new §65.152(d)(3) to clarify that it is an offense for a person to take any wildlife or exotic animal without having on his or her person a valid hunting license. Under Parks and Wildlife Code, sections 42.002(c) and 42.005(f), a hunting license is not required for the take of depredating feral hogs.  Under Health and Safety Code, §822.013, a person who kills a coyote that is attacking, is about to attack, or has recently attacked livestock, domestic animals, or fowls is not required to acquire a hunting license.

          The proposed amendment to §65.152(d)(5) would add “subagent” to the list of persons to whom the provision is applicable. As noted previously, the proposed amendments would allow the designation of subagents to act as gunners for the take of feral hogs and coyotes from helicopters; thus, the term must be added to all provisions affecting gunners.

         The proposed amendment also would alter §65.152(d)(6). The current wording of §65.152(d)(6) makes it an offense to “take or attempt to take any wildlife or exotic animals for any purpose other than is necessary for the protection of lands, water, wildlife, livestock, domesticated animals, human life, or crops….” The proposed amendment would add “aid in the administration” and re-word the provision to read “takes or attempts to take any wildlife or exotic animals for any purpose other than is necessary to protect or to aid in the administration of lands, water, wildlife, livestock, domesticated animals, human life, or crops….” Under Parks and Wildlife Code, §43.194, the department may “issue a permit to any person if the department finds that management of wildlife or exotic animals by the use of aircraft is necessary to protect or to aid in the administration or protection of land, water, wildlife, livestock, domesticated animals, human life, or crops and will not have a deleterious effect on indigenous species.” The amendment is necessary to be consistent with statutory language.

         The proposed amendment to §65.152(d) also would include new paragraph (11), which would make it an offense for a person engaging in AMP activities to pilot an aircraft over property for which the person has not received written permission to overfly, except as is necessary to gain initial access to conduct AMP activities and to leave following AMP activities. The proposed amendment is intended to clarify that the LOA is valid only for the specific tract(s) of land identified in the LOA.

         The proposed amendment to §65.152(d) also includes new paragraph (12) to clarify that the list of offenses in subsection is not exhaustive or all-inclusive.

         The proposed amendment to §65.152 also adds new subsection (f) to allow fee waivers for employees of governmental entities acting tin the course and scope of the employees’ official duties. The department believes that the common good is better served when the efficiency of government is enhanced. By waiving fees for other governmental entities, the department believes it enhances the efficiency of those entities.

         The proposed amendment to §65.152 also adds new subsection (g) to prohibit the take of feral hogs by aircraft if the feral hogs were intentionally released for purposes of hunting. Feral hogs are an unequivocal menace to agriculture and wildlife, causing untold destruction and requiring extensive control efforts. The department is aware of instances in which hogs have been released for purposes of recreational hunting and does not believe that such activities should be conducted from aircraft under the guise of feral hog control.

         The proposed amendment to §65.153, concerning Application for Permit, would eliminate archaic language and duplication and require AMP applicants to furnish a Social Security Administration number as part of the application process. Under both state (Family Code, §231.302) and federal (42 U.S.C.A.  666) law, the department is required for purposes of child support enforcement to collect a person’s Social Security number as a condition of license or permit issuance.

         The proposed amendment to §65.154, concerning Issuance of Permit, would change the title of the section, to Issuance of Permit; Amendment and Renewal, to more accurately reflect the contents of the section.

         The proposed amendment to §65.154 would alter subsection (a) by removing redundant language describing activities for which an AMP could be issued.

         The proposed amendment to §65.154 would alter subsection (b) to address the standards for issuing or renewing an AMP. Current §65.154(b) provides for the issuance of an AMP upon filing of a properly executed application; however, there is also a fee for an AMP. The proposed amendment explicitly states that the fee must be paid before the AMP can be issued.

         Current subsection §65.154 (b)(1) prohibits the issuance of an AMP to an applicant or pilot if the individual within the previous year has been convicted of a 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 proposed amendment would remove this provision because proposed new subsections (e) and (f) would establish new criteria to be used by the department for refusing AMP issuance or renewal, making current subsection (b)(1) unnecessary.

         Current subsection §65.154 (b)(2) (which is proposed subsection (b)(1)) authorizes the issuance of an AMP if, among other things, an applicant “ has not knowingly failed to disclose any material information required, or has not knowingly made any false statement regarding any material fact in connection with the application.” The proposed amendment would remove the word “knowingly.” The department believes that if an applicant for an AMP for whatever reason provides erroneous or inaccurate information or fails to provide required information, such deficiencies are sufficient to refuse issuance of an AMP.

         The proposed amendment to current §65.154(b)(4) (proposed as subsection (b)(3)) would replace the term “issuing official” with the word “department.” The department has determined that it is more accurate to characterize the review of AMP applications as a department function generally, rather than as the action of a specific employee.

         The proposed amendment to §65.154 would create new subsection (d) to establish the requirements for the renewal of an AMP. The proposed new subsection essentially preserves the current process set forth in §65.156, concerning Amendment of Permit, which is proposed for repeal.

         The proposed amendment to §65.154 would create new subsection (e) to set forth the circumstances under which the department could choose to refuse AMP issuance or renewal on the basis of criminal history. The proposed amendment would allow the department to refuse to issue or renew an AMP for any applicant who a final conviction or has been assessed an administrative penalty for a violation of Parks and Wildlife Code, Chapter 43, Subchapter C, E, L, R, or R-1; a provision of the Parks and Wildlife Code other than Chapter 43, Subchapter C, E, L, R, or R-1 that is a Parks and Wildlife Code Class A or B misdemeanor, state jail felony, or felony;  Parks and Wildlife Code, §63.002; or the Lacey Act (16 U.S.C. §§3371-3378). In addition, the proposed amendment would add new subsection (e) to allow the department to prevent a person from engaging in AMP activities or acting on behalf of or as a surrogate for a person who is prohibited from obtaining an AMP.

         Under proposed §65.154(e) and (f), in deciding to issue or renew an AMP, the department would take into account an applicant’s history of violations involving the capture and possession of live animals, major violations of the Parks and Wildlife Code (Class B misdemeanors, Class A misdemeanors, and felonies), and Lacey Act violations. The department reasons that it is appropriate to deny the privilege of taking or allowing the take of wildlife resources, and especially for personal benefit, to persons who exhibit a demonstrable disregard for laws and regulations governing wildlife. Similarly, it is appropriate to deny such privileges to a person who has exhibited demonstrable disregard for wildlife law in general by committing more egregious (Class B misdemeanors, Class A misdemeanors, and felonies) violations of wildlife law.

         The Lacey Act (16 U.S.C. §§3371-3378) is a federal law 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 often 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. Rather than expending resources and time conducting concurrent state and federal prosecutions, the department believes that it is reasonable to use a Lacey Act conviction or civil penalty as the basis for denying issuance or renewal of an AMP.

         The proposal to provide for denial of AMP issuance or renewal as a result of an adjudicative status listed in the proposed amendment would not be automatic, but within the discretion of the department. Factors that may be considered by the department in determining whether to issue or renew an AMP based on adjudicative status include, but are not limited to:  the number of final convictions or administrative violations; the seriousness of the conduct on which the final conviction or administrative violation is based; the existence, number and seriousness of offenses or administrative violations other than offenses or violations that resulted in a final conviction; the length of time between the most recent final conviction or administrative violation and the application for enrollment or renewal; whether the final conviction, administrative violation, or other offenses or violations was the result of negligence or intentional conduct; whether the final conviction or administrative violations resulted from the conduct committed or omitted by the applicant, an agent of the applicant, or both; the accuracy of information provided by the applicant; for renewal, whether the applicant agreed to any special provisions recommended by the department as conditions; and other aggravating or mitigation factors.

         Proposed §65.154(g) would create a mechanism for persons who have been denied AMP issuance or renewal to have the opportunity to have such decisions reviewed by department managers. The new section is intended to help ensure that decisions affecting AMP privileges are correct and is identical to the review process used in other department regulations.

         Proposed §65.154(h) would prohibit a person who has been finally convicted of, pleaded nolo contendere to, received deferred adjudication for, or assessed an administrative penalty for an offense listed in the section from acting or contracting to act as a gunner or observer for an AMP holder. The department reasons that it is appropriate to deny the privilege of AMP participation to persons who exhibit a demonstrable disregard for laws and regulations governing wildlife. Similarly, it is appropriate to deny such privileges to a person who has exhibited demonstrable disregard for wildlife law in general by committing more egregious (Class B misdemeanors, Class A misdemeanors, and felonies) violations of wildlife law.

         The proposed amendment to §65.154 also would create new subsection (i) to provide that an AMP is not transferable or assignable. The provision is identical to current §65.158, concerning Permit Not Transferable, which is being repealed.

         The proposed amendment to §65.154 also sets forth the requirements for the renewal of an AMP, which is addressed under current rule at §65.157, regarding Renewal of Permit. This rulemaking proposes the repeal of §65.157; however, one aspect of the current rule (the requirement to submit a request for renewal within 10 days of permit expiration) will not be contained in the proposed amendment to §65.154. The department has determined that there is no reason to place a time limit on AMP renewals because the process is independent of time-related constraints and there is no adverse impact.

         The proposed amendment to §65.160, considering Landowner Authorization would make a number of alterations.

         The proposed amendment to §65.160(a) would require an LOA to be signed by the AMP holder and the landowner or agent, and would be required to be kept in physical possession by the AMP holder during all AMP activities. In addition, the proposed amendment would require the LOA to contain a georeferenced map (a map image incorporating a system of geographic ground coordinates, such as latitude/longitude or Universal Transverse Mercator (UTM) coordinates) showing the exact boundaries of the property where AMP activities are to take place and a written statement signed by the landowner that the map is true and correct. In order to ensure that AMP activities are conducted on the property on which the landowner intends such activities to be conducted (i.e., are not conducted on the wrong property), the department believes it is appropriate to require the LOA to include a georeferenced map, and to require that the accuracy of the map be verified by the landowner in writing prior to the initiation of AMP activities. The proposed amendment also would alter current subsections (5) and (6) (proposed as subsections (6) and (7)) to simplify language. Current paragraph (5) (proposed paragraph (6)) requires an LOA to state the “specific kind and number” of wildlife to be taken under an AMP. The proposed amendment would refer to the number of individual animals of each species, and would add the qualifying term “yearly,” because LOAs are approved on an annual basis. Current paragraph (6) (proposed paragraph (7)) requires an applicant to supply a “trap and transplant permit number” if animals are to be trapped under that permit. The amendment supplies a more legally precise description of that permit and adds a reference to another type of permit that allows capture of wildlife for scientific, educational, or zoological purposes.

         The proposed amendment to §65.160(b) would allow an LOA to be in effect for a specific time period and to be invalidated at the request of the landowner. As currently worded, the provision states that an LOA is valid for the life of the AMP unless it is suspended, revoked, or not renewed. The department does not intend for landowners to be unable to specify a period of validity for an LOA or to be unable to withdraw authorization at any time the landowner wishes.

         Current subsections §65.160 (c) and (d) are proposed for removal. Current subsection (c) stipulates that an LOA for hunting will be approved only for depredating animals and exotic animals. As mentioned previously in this preamble, the use of the word “hunt” in the context of aerial management is problematic because the legal meaning of “hunt” and the common understanding of hunting as a recreational activity can be easily confused. An AMP cannot authorize hunting in the sense of recreational activity; therefore, the subsection is actually unnecessary.

         Current subsection (d) provides that an LOA will not be approved for non-indigenous wild animals except as authorized by the department when a specific wild animal(s) has escaped from captivity. The department has determined that this provision prevents the removal of exotic wildlife that may be competing with indigenous wildlife or presenting some other deleterious impact to indigenous wildlife. Therefore, the proposed amendment would remove this provision.

         The proposed amendment to current §65.160(e), which is proposed as new subsection (c)), would alter the current provision to require a georeferenced map to be provided with an LOA application for a group or association of landowners, and new subsection (d) would require the landowner or agent to ensure that the information is true and correct prior executing the authorization. The map and certification requirements are necessary for the same reasons articulated in the discussion of the proposed amendment to §65.160(a).

         The proposed amendment to §65.161, concerning Reports, would provide for electronic signatures of quarterly reports, remove the requirement for the signature of the pilot, and allow the inclusion of a government-issued identification number for gunners. The proposed amendment would also require the quarterly reports to be filed electronically. With the transition to electronic reporting for AMP administration, it is necessary to accommodate electronic signatures to affirm that an AMP holder has complied with reporting requirements. The proposed amendment also removes the signature requirement for pilots because it is duplicative, and allows gunners to provide a government-issued identification number in lieu of a hunting license number, because a hunting license is not required to take depredating feral hogs or coyotes and therefore an alternative method of identification must be established.

2. Fiscal Note.

         Mitch Lockwood, 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 governments as a result of enforcing or administering the proposed 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 effective oversight of persons authorized to manage a public resource and the benefits to public resources occurring as a result of sound management activities.

         (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 effects on small businesses, microbusinesses, or persons required to comply with the rules as proposed, and that, if anything, any economic effects of the rules should be positive. 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.