Commission Agenda Item No. 2
Exhibit A

COMMERCIAL NONGAME PERMITS RULES
REFUSAL OF PERMIT ISSUANCE OR PERMIT RENEWAL
REVIEW OF AGENCY DECISION
PROPOSAL PREAMBLE

1. Introduction.

        The Texas Parks and Wildlife Department proposes amendments to §65.329, concerning Permit Application, §65.376, concerning Possession of Live Fur-bearing Animals.

        The proposed amendment to §65.329 would allow the department to refuse permit issuance or renewal  to any person who has been finally convicted of, pleaded nolo contendere to, received deferred adjudication, or been assessed an administrative penalty for a violation of:  Parks and Wildlife Code, Chapter 43, Subchapter C, E, L, R, or R-1; Parks and Wildlife Code, Chapter 67; a provision of the Parks and Wildlife Code other than Chapter 43, Subchapter C, E, L, R, or R-1, or Chapter 67 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 allow the department to prevent a person from acting on behalf of or as a surrogate for a person prevented from obtaining a permit under the proposed new provision and provide for a review process for agency decisions to refuse permit issuance or renewal.

        The proposed amendment to §65.376 would allow the department to refuse permit issuance or renewal  to any person who has been finally convicted of, pleaded nolo contendere to, received deferred adjudication, or been assessed an administrative penalty for a violation of:  Parks and Wildlife Code, Chapter 43, Subchapter C, E, L, R, or R-1; Parks and Wildlife Code, Chapter 71; a provision of the Parks and Wildlife Code other than Chapter 43, Subchapter C, E, L, R, or R-1, or Chapter 71 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 allow the department to prevent a person from acting on behalf of or as a surrogate for a person prevented from obtaining a permit under the proposed new provision and provide for a review process for agency decisions to refuse permit issuance or renewal.

        The department has determined that the decision to issue a permit to hold protected live wildlife or to collect and possess wildlife for commercial purposes should 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 to persons who exhibit a demonstrable disregard for the regulations governing wildlife. Similarly, it is appropriate to deny the privilege of holding wildlife 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 refusing to issue or renew a permit. Because the elements of the underlying state criminal offense must be proven to establish a conviction or assessment of a civil penalty for a Lacey Act violation, the department reasons that such conviction or assessment constitutes legal proof that a violation of state law occurred and it is therefore redundant and wasteful to pursue a conviction in state jurisdiction to prove something that has already been proven in a federal court.

        The denial of permit 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 refuse permit issuance 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 were 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 mitigating factors.

        The proposed amendment would retain a provision, current subsection (c), allowing the department to refuse permit issuance or renewal to any person who is not in compliance with applicable recordkeeping or reporting requirements, but relocate in the body of the amendment.

        The proposed amendment also would provide for department review of a decision to refuse permit issuance or renewal. The amendment would require the department to notify an applicant not later than the 10th day following a decision to refuse permit issuance or denial and to set a time and date for conducting a review of an agency decision to refuse permit issuance or renewal within 10 days of receiving a request for a review. The amendment would stipulate that a review panel consist of three department managers with appropriate expertise in the activities conducted under the permit in question. The new provision is intended to help ensure that decisions affecting permit issuance and renewal are correct.

2. Fiscal Note.

        Meredith Longoria, Nongame and Rare Species Program Leader, 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 administering or enforcing the proposed amendments.

3. Public Benefit/Cost Note.

        Ms. Longoria also has determined that for each of the first five years that the rules as proposed are in effect:

        (A) The public benefit anticipated as a result of enforcing or administering the proposed rules will be a standardized method of addressing the refusal to issue or renew various wildlife permits.

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

        (C) 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), in April 2008, the Office of the Attorney General issued guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small businesses. These guidelines state that “[g]enerally, there is no need to examine the indirect effects of a proposed rule on entities outside of an agency’s regulatory jurisdiction.” The 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. The guidelines also list examples of the types of costs that may result in a “direct economic impact.” Such costs may include costs associated with additional recordkeeping or reporting requirements; new taxes or fees; lost sales or profits; changes in market competition; or the need to purchase or modify equipment or services.

        The department has determined that the rules as proposed will not affect small businesses, micro-businesses, or rural communities, since the rules do not impose any direct economic impacts on the regulated community. Therefore, the department has not prepared the economic impact statement or regulatory flexibility analysis described in Government Code, Chapter 2006.

        (D) 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.

        (E) The department has determined that Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rule.

        (F) 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.

        (G) The department has determined that because the rule as proposed does not impose a cost on regulated persons, it is not necessary to repeal or amend any existing rule.

        (H) In compliance with the requirements of Government Code, §2001.0221, the department has prepared the following Government Growth Impact Statement (GGIS).  The rule as proposed, if adopted, will:

                 (1) neither create nor eliminate a government program;

                 (2) not result in an increase or decrease in the number of full-time equivalent employee needs;

                 (3) not result in a need for additional General Revenue funding;

                 (4) not affect the amount of any fee;

                 (5) create a new regulation (a standardized process for refusal of permit issuance or denial);

                 (6) not expand, limit, or repeal an existing regulation;

                 (7) not increase the number of individuals subject to regulation; and

                 (8) neither positively nor adversely affect the state’s economy.

4. Request for Public Comment.

Commission Agenda Item No. 2
Exhibit B

MISCELLANEOUS WILDLIFE DIVISION PERMITS RULES
REFUSAL OF PERMIT ISSUANCE OR PERMIT RENEWAL
REVIEW OF AGENCY DECISION
PROPOSAL PREAMBLE

1. Introduction.

        The Texas Parks and Wildlife Department proposes amendments to §§69.4, concerning Renewal; 69.47, concerning Qualifications; and 69.303, concerning Application for Permit and Permit Issuance, and new §69.6, concerning Refusal of Issuance or Renewal of Permit; Review of Agency Decision. The proposed amendments would, collectively, eliminate provisions governing the issuance or renewal of various permits on the basis of convictions for previous criminal conduct involving activities regulated by the department or failure to comply with reporting and recordkeeping requirements and replace with them with a single standard governing such refusals, similar to current standards in effect for other permit programs administered by the department. Proposed new §69.6, concerning Refusal of Issuance or Renewal of Permit; Review of Agency Decision, would establish a similar regulation applicable to plant permits.

        The proposed amendment to §69.4 would alter the provisions of the section to replace “shall” with “may” with respect to the renewal of scientific and commercial plant permits and eliminate a provision allowing the department to refuse permit issuance to any person finally convicted of any violation of Parks and Wildlife Code during the five-year period immediately prior to an application for a commercial plant permit. The changing of “may” to “shall” is necessary to emphasize that permit privileges are not automatic, but dependent upon a number of factors that the department evaluates prior to deciding whether to issue a permit or not. The proposed removal of paragraph (4) is necessary, as has been mentioned previously in this preamble, because the department is implementing a standardized set of provisions regarding refusal of permit issuance or renewal.

        Proposed new §69.6 would allow the department to refuse permit issuance or renewal to any person who has been finally convicted of, pleaded nolo contendere to, received deferred adjudication, or been assessed an administrative penalty for a violation of:  Parks and Wildlife Code, Chapter 88; a provision other than Parks and Wildlife Code Chapter 88 that is a Parks and Wildlife Code Class A or B misdemeanor, state jail felony, or felony; or a violation of the Lacey Act (16 U.S.C. §§3371-3378). In addition, the proposed new section would allow the department to prevent a person from acting on behalf of or as a surrogate for a person prevented from obtaining a permit under the proposed new provision and provides for a review process for agency decisions to refuse permit issuance or renewal.

        The department has determined that the decision to issue or renew a permit should take into account an applicant’s history of violations involving plant permits, serious 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 collecting plant resources to persons who exhibit a demonstrable disregard for the regulations governing plant resources. Similarly, it is appropriate to deny permit privileges to a person who has exhibited demonstrable disregard for natural resource law in general by committing more egregious (Class B misdemeanors, Class A misdemeanors, and felonies) violations of natural resource 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 refusing to issue or renew a permit. Because the elements of the underlying state criminal offense must be proven to establish a conviction or assessment of a civil penalty for a Lacey Act violation, the department reasons that such conviction or assessment constitutes legal proof that a violation of state law occurred and it is therefore redundant and wasteful to pursue a conviction in state jurisdiction to prove something that has already been proven in a federal court.

        The denial of a permit or permit renewal as a result of an adjudicative status listed in the proposed new rule would not be automatic, but within the discretion of the department. Factors that may be considered by the department in determining whether to refuse permit issuance or renewal 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 mitigating factors.

        The proposed new rule also would include a provision allowing the department to refuse permit issuance or renewal to any person who is not in compliance with applicable recordkeeping or reporting requirements. The provision is necessary because the department believes that a person who is unable to comply with regulatory requirements that allow the department to monitor the performance of permit activities should not be entrusted with the privilege of permit issuance or renewal.

        The proposed new rule also would provide for department review of a decision to refuse permit issuance or renewal. The proposed new rule would require the department to notify an applicant not later than the 10th day following a decision to refuse permit issuance or denial and to set a time and date for conducting a review of an agency decision to refuse permit issuance or renewal within 10 days of receiving a request for a review. The proposed new rule would stipulate that a review panel consist of three department managers with appropriate expertise in the activities conducted under the permit in question. The new provision is intended to help ensure that decisions affecting permit issuance and renewal are correct.

        The proposed amendments to §69.47 and §69.303 would eliminate a provision in each section authorizing the department to refuse issuance or renewal of wildlife rehabilitation permits for a person convicted of any violation of state or federal law applicable to fish or wildlife. The department has determined that the current provision, in addition to allowing for permit issuance refusal for minor violations of fish and game law, is not as comprehensive as the template used for similar provisions in more recent rulemakings.

        The proposed amendments to §69.47 and §69.303 would allow the department to refuse permit issuance or renewal to any person who has been finally convicted of, pleaded nolo contendere to, received deferred adjudication, or 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 allow the department to prevent a person from acting on behalf of or as a surrogate for a person prevented from obtaining a permit and provide for a review process for agency decisions to refuse permit issuance or renewal.

        The department has determined that the decision to issue a permit to hold protected live wildlife should 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 possession of wildlife resources to persons who exhibit a demonstrable disregard for the regulations governing wildlife. Similarly, it is appropriate to deny the privilege of holding wildlife 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 refusing to issue or renew a permit. Because the elements of the underlying state criminal offense must be proven to establish a conviction or assessment of a civil penalty for a Lacey Act violation, the department reasons that such conviction or assessment constitutes legal proof that a violation of state law occurred and it is therefore redundant and wasteful to pursue a conviction in state jurisdiction to prove something that has already been proven in a federal court.

        The denial of permit 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 refuse permit issuance 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 mitigating factors.

        The proposed amendment also would include a provision allowing the department to refuse permit issuance or renewal to any person who is not in compliance with applicable recordkeeping or reporting requirements. The provision is necessary because the department believes that a person who is unable to comply with regulatory requirements that allow the department to monitor the performance of permit activities should not be entrusted with the privilege of holding a permit, depending on the circumstances.

        Additionally, the proposed amendment rule would provide for department review of a decision to refuse permit issuance or renewal. The proposed new rule would require the department to notify an applicant not later than the 10th day following a decision to refuse permit issuance or denial and to set a time and date for conducting a review of an agency decision to refuse permit issuance or renewal within 10 days of receiving a request for a review. The proposed amendment would stipulate that a review panel consist of three department managers with appropriate expertise in the activities conducted under the permit in question. The amendment is intended to help ensure that decisions affecting permit issuance and renewal are correct.

2. Fiscal Note.

        Meredith Longoria, Nongame and Rare Species Program Leader, 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 administering or enforcing the proposed rules.

3. Public Benefit/Cost Note.

        Ms. Longoria also has determined that for each of the first five years that the rules as proposed are in effect:

        (A) The public benefit anticipated as a result of enforcing or administering the proposed rules will be a standardized method of addressing the refusal to issue or renew various permits.

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

        (C) 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), in April 2008, the Office of the Attorney General issued guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small businesses. These guidelines state that “[g]enerally, there is no need to examine the indirect effects of a proposed rule on entities outside of an agency’s regulatory jurisdiction.” The 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. The guidelines also list examples of the types of costs that may result in a “direct economic impact.” Such costs may include costs associated with additional recordkeeping or reporting requirements; new taxes or fees; lost sales or profits; changes in market competition; or the need to purchase or modify equipment or services.

        The department has determined that the rules as proposed will not affect small businesses, micro-businesses, or rural communities, since the rules do not impose any direct economic impacts on the regulated community. Therefore, the department has not prepared the economic impact statement or regulatory flexibility analysis described in Government Code, Chapter 2006.

        (D) 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.

        (E) The department has determined that Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rules.

        (F) 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.

        (G) The department has determined that because the rules as proposed does not impose a cost on regulated persons, it is not necessary to repeal or amend any existing rule.

        (H) In compliance with the requirements of Government Code, §2001.0221, the department has prepared the following Government Growth Impact Statement (GGIS).  The rules as proposed, if adopted, will:

                 (1) neither create nor eliminate a government program;

                 (2) not result in an increase or decrease in the number of full-time equivalent employee needs;

                 (3) not result in a need for additional General Revenue funding;

                 (4) not affect the amount of any fee;

                 (5) create new regulations (implementing a standardized process for refusal of permit issuance or denial);

                 (6) not expand, limit, or repeal an existing regulation;

                 (7) not increase the number of individuals subject to regulation; and

                 (8) neither positively nor adversely affect the state’s economy.

4. Request for Public Comment.