Commission Agenda Item No. 3
Presenter:
Mitch Lockwood
Work Session
Aerial Wildlife Management Rule Amendments
Recommended Adoption of Proposed Changes
May 25, 2017
I. Executive Summary: This item seeks adoption of a proposed amendment to rules governing permits for the aerial management of wildlife and exotic species. The proposed amendment would provide for an expedited approval of a landowner authorization (LOA) to manage wildlife or exotic animals by the use of aircraft (AWM).
II. Discussion: Under federal law (16 U.S.C. §742j-1, commonly referred to as the Airborne Hunting Act, or AHA) it is unlawful to shoot or attempt to shoot or harass any bird, fish, or other animal from aircraft except for certain specified reasons, including protection of wildlife, livestock, and human life as authorized by a federal or state issued license or permit. Under Parks and Wildlife Code, §43.109, the Texas Parks and Wildlife (TPW) Commission is authorized to make regulations governing management of wildlife or exotic animals by the use of aircraft. Accordingly, department rules at 31 TAC Chapter 65, Subchapter F, govern permits for the aerial management of wildlife and exotic species by use of aircraft.
At the Work Session meeting on March 22, 2017, staff was authorized to publish the proposed amendment in the Texas Register for public comment. The proposed rules appeared in the April 21, 2017 issue of the Texas Register (42 TexReg 2143). A summary of public comment on the proposed rules will be presented at the time of the hearing.
III. Recommendation: The staff recommends the TPW Commission adopt the following motion:
“The Texas Parks and Wildlife Commission adopts an amendment to §65.160, concerning Permits for Aerial Management of Wildlife and Exotic Species, with changes as necessary to the proposed text (located at Exhibit A) as published in the April 21, 2017 issue of the Texas Register (42 TexReg 2143).”
Commission Agenda Item No. 3
Exhibit A
PERMITS FOR AERIAL MANAGEMENT OF WILDLIFE AND EXOTIC SPECIES
PROPOSAL PREAMBLE
1. Introduction.
The Texas Parks and Wildlife Department proposes an amendment to §65.160, concerning Landowner Authorization (LOA). The proposed amendment would create a mechanism for expedited approval of a landowner authorization (LOA) to manage wildlife or exotic animals by the use of aircraft (AWM).
Under federal law (16 U.S.C. §742j-1, commonly referred to 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 and exotic animals by the use of aircraft.
In 2015 the department adopted revisions to the rules governing aerial wildlife management (41 TexReg 4037), including the elimination of provisions for emergency approval of new LOAs, which the department concluded was no longer necessary because of the transition to an electronic, online permit administration process. The department has since become aware that there may be rare instances in which it is not practical for a permittee to access the department’s online system for approval of a LOA; therefore, the proposed amendment would provide a mechanism for expedited approval of a LOA. The proposed amendment would allow a permittee to present a department-approved application for expedited LOA to a game warden assigned to the county where the prospective activity is to take place. The proposed amendment also would require the permittee to complete the normal LOA approval process by accessing the department’s online system within 72 hours following conclusion of activities authorized under the expedited LOA.
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, there will be no fiscal implications to state or local governments as a result of enforcing or administering the proposed rule.
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 a regulation that allows flexibility to landowners and land managers with respect to certain types of management activities while preserving 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 rule as proposed, as the rule does not alter any requirement of current rule. 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 Parks and Wildlife Code, §43.109, which provides the commission with authority to make regulations governing the management of wildlife or exotic animals by the use of aircraft under this subchapter, including forms and procedures for permit applications; procedures for the management of wildlife or exotic animals by the use of aircraft; limitations on the time and the place for which a permit is valid; establishment of prohibited acts; and rules to require, limit, or prohibit any activity as necessary to implement Parks and Wildlife Code, Chapter 43, Subchapter G.
The proposed amendment affects Parks and Wildlife Code, Chapter 43, Subchapter G.
6. Text.
§65.160. Landowner Authorization (LOA).
(a) – (d) (No change.)
(e) An expedited LOA may be obtained by the prior written approval of a game warden assigned to the county where the prospective management of wildlife or exotic animals is to be performed, or that warden’s supervisor, following submission to the game warden (or supervisor) of:
(1) a completed, department-approved application for expedited LOA for the property where the management of wildlife or exotic animals is to be performed; and
(2) a map clearly indicating the boundaries of the property where the management of wildlife or exotic animals is to be performed.
(f) Upon approval by the game warden (or supervisor), the AMP holder may conduct the authorized activities, but must, within 72 hours of completion of the activities authorized under the expedited LOA, complete and submit a LOA application to the department via the department’s online system.
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