May 26 – 27, 2004 Commission Meeting Agenda
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Presenter: Mike Berger

Commission Agenda Item No. 10
Action
Statewide Fur-Bearing Animal Proclamation
May 2004

I. Executive Summary: The item presents proposed changes to the Statewide Fur-bearing Animal Proclamation. The proposed changes include:

II. Discussion: Under Parks and Wildlife Code, Chapter 71, the commission may 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. The proposed rules located at Exhibit A are the result of meetings with the regulated community as part of an initiative aimed at making the regulations governing the take, possession, and sale of fur-bearing animals less onerous to comply with, easier to understand, and more efficient. At the April 2004 meeting of the Regulations Committee, staff was authorized to publish the proposed regulations located at Exhibit A for public comment. The proposed regulations appeared in the April 23, 2004, issue of the Texas Register (29 TexReg 3943). Staff will provide a summary of public comment at the time of the hearing.

III. Recommendation: The staff recommends the Texas Parks and Wildlife Commission adopt the following motion:

"The Texas Parks and Wildlife Commission adopts proposed amendments to 31 TAC §§65.372, 65.375, 65.377, and 65.379, concerning the Statewide Fur-Bearing Animal Proclamation, with changes to the proposed text as published in the April 23, 2004, issue of the Texas Register (29 TexReg 3943)."

Attachments - 2

  1. Exhibit A - Proposed Amendments to the Statewide Fur-bearing Animal Proclamation
  2. Exhibit B - Fiscal Note

Commission Agenda Item No. 10
Exhibit A

Statewide Fur-Bearing Animal Proclamation
Proposal Preamble

1. Introduction.

The Texas Parks and Wildlife Department proposes amendments to §§65.372, 65.375, 65.377, and 65.379, concerning the Statewide Fur-Bearing Animal Proclamation. In general, the changes represent an effort to simplify and clarify the regulations governing fur-bearing animals.

The proposed amendment to §65.372, concerning Definitions, eliminates the definitions for ‘commercial harvest’, ‘finished product,’ ‘fur-bearing animal,’ and ‘recreational harvest.’ The definitions for commercial and recreational harvest are redundant. The commercial and recreational seasons are established in §65.375, and the activities permitted under the various licenses are prescribed in statute and regulations; therefore, the definitions are unnecessary and are being removed. The definition of ‘fur-bearing’ animal is being removed for essentially the same reason. The term is defined in Parks and Wildlife Code, Chapter 71, and need not be reproduced in rule.

The proposed amendment to §65.375, concerning Open Season; Means and Methods, consists of several actions. First, the proposed amendment would eliminate the bag and possession limits for fur-bearing animals taken under a hunting license. Under current rules, there is no bag or possession limit for fur-bearing animals taken under a trapper’s license during the trapping season and persons hunting under a hunting license may take one fur-bearing animal per day, with a possession limit of two. However, because depredating fur-bearing animals may be taken in any number at any time, the department believes it is unnecessary to impose bag and possession limits on persons hunting under a hunting license, since no other class of permittee is thusly restricted. The amendment would also eliminate subsection (a)(3), which prohibits the sale of fur-bearing animals taken during the recreational season (i.e., under a hunting license), which is prohibited by statute, making the regulatory prohibition redundant and therefore unnecessary. The proposed amendment also would eliminate subsection (b)(3), which prohibits a trapper from possessing more than two undried pelts between April 6 and October 31. This provision is being removed because rule action in 2003 provided for year-round possession of pelts by trappers, allowing trappers to maximize economic return by retaining pelts for as long as needed to take advantage of favorable market fluctuations. Subsection (b)(3) conflicts with that action, and is being removed for that reason. The proposed amendment also removes the prohibition on the take of river otter by firearms. Staff review of the provision reveals that it has been effect since at least 1981, but there is no historical data to explain the original reason. Firearms are lawful for taking every other species of fur-bearing animal, and currently there is no biological reason to limit the means of take for river otter. The proposed amendment also would eliminate subsection (c)(1), which enumerates the legal means and methods for the take of fur-bearing animals. The paragraph is unnecessary because current paragraph (2) sets forth the means and methods that are unlawful and there is no need to set forth the same thing in two different ways. The remaining provisions are redesignated accordingly and have been grammatically altered to maintain parallel construction. Finally, the proposed amendment would replace the term ‘steel leghold’ with ‘foothold.’ The term ‘steel leghold’ inaccurately describes these types of traps, and the International Association of Fish and Wildlife Agencies has adopted new terminology to refer to these types of traps as ‘foothold’ traps.

The amendment to §65.377, concerning Sale or Purchase of Fur-bearing Animals, changes subsections (a)(4) and (b)(3) by adding the word ‘commercial’ to those provisions. The department’s intent is to prevent any misconception that trappers may retain fur-bearing animals taken outside of the commercial season or that wholesale fur dealers may purchase animals or pelts taken outside of the commercial season. The amendment also adds language to subsection (a)(5) to allow trappers to sell fur-bearing animals to buyers located outside the state in addition to wholesale fur dealers licensed by the state. Many trappers find the need to get pelts quickly to sales houses when prices are good; however, due to the small number of fur buyers in Texas, this is sometimes problematic in terms of time. The department would like to empower trappers to act quickly when prices are good.

The amendment to §65.379, concerning Reporting Requirements, adds a provision requiring trappers who sell animals or pelts directly to out-of-state purchasers to report those sales to the department on an annual basis. Under current rule, only wholesale fur dealers may purchase and resell a fur-bearing animal, and the department requires annual reports from wholesale dealers in order to track the volume of fur-bearing animals taken in the state for commercial trade, which is also used as an indirect index of furbearer populations. The amendment to §65.377 would allow trappers to sell directly to out-of-state buyers; thus, that data would not be captured by wholesale dealer reports. By requiring an annual report from trappers who sell animals directly to out-of-state buyers, the department will continue to capture that data.

2. Fiscal Note.

Robert Macdonald, regulations coordinator, has determined that for each of the first five years that the proposed rules are in effect, there will be no fiscal implications to state or local government.

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 of the proposed rules will be to simplify the regulations governing the take of fur-bearing animals.

(B) There is no economic cost to businesses, microbusinesses, or persons required to comply with the rules as proposed.

(C) The department has determined that the rules will not affect local economies; accordingly, no local employment impact statement has been prepared.

(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 Government Code, Chapter 2007 (Governmental Action Affecting Private Property Rights), does not apply to the proposed rules.

4. Request for Public Comment.

Comments on the proposed rule may be submitted to John Young, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 912-7047 or 1-800-792-1112, e-mail: john.young@tpwd.state.tx.us.

5. Statutory Authority.

The rules are proposed under the authority of Parks and Wildlife Code, §71.002, 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, including provisions governing permit application forms, fees, procedures, and reports, the periods of time when it is lawful to take, possess, sell, purchase, or transport fur-bearing animals, pelts,

and carcasses, catch and possession limits for fur-bearing animals and pelts, and the means, methods, manner and places in which it is, lawful to take or possess fur-bearing

animals, pelts, or carcasses.

The proposed rules affect Parks and Wildlife Code, Chapter 71.

§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).]

(2) [(3)] Export—The transport of a fur-bearing animal across the boundaries of this state.

[(4) Finished product—The tanned pelt of a fur-bearing animal or any part 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.]

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

[(7) 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.]

§65.375. Open Seasons; Means and Methods.

(a) Recreational harvest.

(1) The open season for the recreational harvest of fur-bearing animals is September 1 of one year to August 31 of the following year.

(2) There are no bag or possession limits for fur-bearing animals taken during the open season for recreational harvest. [The daily bag limit is one fur-bearing animal and the possession limit is two fur-bearing animals. A fur-bearing animal that has been reduced to a finished product shall not be considered part of the possession limit.]

[(3) Fur-bearing animals, pelts, and carcasses possessed under this subsection shall not be sold.]

(b) Commercial harvest.

(1) The open season for the commercial harvest of fur-bearing animals is November 1 of one year through March 31 of the following year. Nutria may be taken from September 1 through August 31 of the following year.

(2) There are no bag or possession limits.

[(3) From April 6 through October 31 no licensed trapper may possess more than two undried pelts taken under a trapper's license.]

(c) Means and methods.

[(1) Only the following means and methods are legal for taking fur-bearing animals:]

[(A) firearms;]

[(B) steel leghold and conibear-style traps;]

[(C) falconry;]

[(D) live or box trap;]

[(E) dogs;]

[(F) snare;]

[(G) lawful archery equipment;]

[(H) electronic or hand-held calls; and]

[(I) artificial light.]

[(2) Exceptions.] No person may:

[(A) take river otter with firearms;]

(1) [(B)] take fur-bearing animals with foothold [steel leghold] or conibear-style traps, except during the open season for commercial harvest or as provided in §65.381 of this title (relating to Nuisance Fur-bearing Animals);

(2) [(C)] set foothold [steel leghold] or conibear-style traps within 400 yards of any school; [or]

(3) [(D)] use smoke, explosives or chemical irritants of any kind to harry or flush fur-bearing animals;[.]

[(3) Special provisions.]

(4) [(A)] use a Conibear-style traps with a diagonal opening dimension greater than ten inches shall not be set on land or in less than six inches of water;[.]

(5) [(B)] use snares [Snares], steel leghold traps, conibear-style traps, and live or box traps unless each trap is [shall be] examined at least every 36 hours; or[.]

(6) [(C)] fail to remove animals from taking devices [Animals taken by the means and methods listed in this section shall be removed] upon discovery.

§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.

(3) Finished products may be sold by anyone.

(4) A trapper may possess and sell the carcass or pelt of a fur-bearing animal lawfully taken during an open commercial trapping season at any time.

(5) A trapper may sell the carcass or pelt of a fur-bearing animal only to a wholesale fur dealer or purchaser outside of Texas.

(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.

(3) A wholesale fur dealer may purchase the carcass or pelt of a fur-bearing animal lawfully taken during an open commercial trapping season at any time.

(4) Finished products may be purchased by anyone.

(c) A person who sells fur-bearing animals prepared for immediate consumption may purchase the carcass of a fur-bearing animal only from a wholesale dealer.

§65.379. Reporting Requirements.

(a) Any person licensed as a 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) A person licensed as a trapper must complete and submit an annual report accounting for all sales of fur-bearing animals to purchasers outside of Texas.

(c) [(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.

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

(e) [(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.

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