Commission Agenda Item No. 1
Presenter: James Murphy
Action
Rule Review
Recommended Adoption of Proposed Changes and Completed Rule Review
March 25, 2021
I. Executive Summary: With this item, the staff seeks adoption of proposed rulemaking resulting from the third stage of the quadrennial review of Texas Parks and Wildlife Department (TPWD) regulations required by the Administrative Procedure Act. The proposed rulemaking would affect Title 31, Texas Administrative Code (TAC) chapters 57 (Fisheries), 58 (Oysters, Shrimp, and Finfish), and 65 (Wildlife).
II. Discussion: Under Texas Government Code section 2001.039, a state agency is required to review each rule under its jurisdiction at least once every four years. The review must include an assessment of whether the reasons for initially adopting a rule continue to exist. Notice of the proposed review must be published in the Texas Register for public comment. Following the review, rules must be re-adopted, adopted with changes, or repealed based upon the review.
The TPWD rule review process is divided into three groups of chapters within TAC that contain TPWD’s regulations. The process for each chapter occurs over three Texas Parks and Wildlife Commission (Commission) meetings. In the first meeting, the staff seeks permission to begin the rule review process and to publish notice of the rule review in the Texas Register. In the second meeting, the staff seeks permission to publish any proposed rule changes or repeals resulting from the rule review in the Texas Register for public comment. In the third meeting, the staff seeks adoption of proposed rule changes and adoption of the completed rule review (i.e., re-adoption of the remaining unchanged rules).
At its November 9, 2020 Work Session meeting, the staff received permission to publish a Notice of Intent to Conduct Rule Review for the third group of chapters under review: chapter 57 (Fisheries), chapter 58 (Oysters, Shrimp, and Finfish), and chapter 65 (Wildlife). The notice was published in the December 18, 2020 issue of the Texas Register (45 TexReg 9253). TPWD received no public comment regarding the proposed review.
The staff received permission to publish the proposed rules at the January 20, 2021 Work Session meeting. The proposed rules were published in the February 19, 2021 issue of the Texas Register (46 TexReg 1226, 1230). A summary of public comment will be presented at the time of the meeting.
III. Recommendation: The staff recommends the Commission adopt the proposed motions:
Motion one: “The Texas Parks and Wildlife Commission adopts amendments to 31 TAC §§65.194, concerning Competitive Hunting Dog Event (Field Trials) and Fees, and 65.327, concerning Commercial Nongame Permits, with changes as necessary to the proposed text as published in the February 19, 2021 issue of the Texas Register (46 TexReg 1226, 1230).”
Motion two: “The Texas Parks and Wildlife Commission adopts the completed rule review of 31 TAC Chapters 57, 58, and 65 as published in the December 18, 2020 issue of the Texas Register (45 TexReg 9253), finding that the original reasons for adopting the rules continue to exist, as required by Government Code, §2001.039, and authorizes the publication of a Notice of Adopted Rule Review to that effect in the Texas Register.”
Attachments – 2
Commission Agenda Item No. 1
Exhibit A
LEGISLATIVE RULES REVIEW
CHAPTER 65. WILDLIFE – SUBCHAPTER H. PUBLIC LANDS PROCLAMATION
PROPOSAL PREAMBLE
1. Introduction.
The Texas Parks and Wildlife Department proposes an amendment to 31 TAC §65.194, concerning Competitive Hunting Dog Event (Field Trials) and Fees. The proposed amendment would require an applicant for a field trial permit to supply a Social Security number as part of the application process and eliminate the requirement that all participants and spectators at a field trial conducted under a permit provide Social Security numbers to the department. Both state and federal laws regarding child support collection require the department to obtain Social Security numbers for each person to whom a recreational license is issued. Tex. Fam. Code §§231.302, 42 U.S.C. §666. The department has determined that for purposes of compliance with federal and state laws regarding child support enforcement, it is necessary only for the person to whom the field trial permit is actually issued to provide that information.
2. Fiscal Note.
Len Polasek, Regional 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 administering or enforcing the rule.
3. Public Benefit/Cost Note.
Mr. Polasek also has determined that for each of the first five years that the rule as proposed is in effect:
(A) The public benefit anticipated as a result of enforcing or administering the proposed rule will be reduced regulatory complexity associated with the administration of field trial permit events.
There will be no adverse economic effect on persons required to comply with the rule.
(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, micro-businesses, or rural communities. 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 and microbusinesses and rural communities. Those guidelines state that an agency need only consider a proposed rule’s direct adverse economic impacts to determine if any further analysis is required. The department 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 proposed rule would result in no direct economic effect on any small businesses, micro-businesses, or rural community. Therefore, neither the economic impact statement nor the regulatory flexibility analysis described in Government Code, Chapter 2006, is required.
(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.
(F) 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 neither create nor eliminate a government program; not result in an increase or decrease in the number of full-time equivalent employee needs; not result in a need for additional General Revenue funding; not affect the amount of an existing fee; not create, expand, or repeal an existing regulation; decrease the number of individuals subject to regulation (by eliminating the requirement for the collection of Social Security numbers for participants and spectators at field trials); and not positively or adversely affect the state’s economy.
4. Request for Public Comment.
Comments on the proposal may be submitted to Robert Macdonald at (512) 389-4775, e-mail: robert.macdonald@tpwd.texas.gov. Comments also may be submitted via the department’s website at http://www.tpwd.texas.gov/business/feedback/public_comment/.
5. Statutory Authority.
The amendment is proposed under the authority of Parks and Wildlife Code, §81.403, which authorizes the department to issue permits authorizing access to public hunting land or for specific hunting, fishing, recreational, or other use of public hunting land or wildlife management areas; requires the conditions for the issuance and use of such permits to be prescribed by rule; and requires the department to charge a permit fee by rule.
The proposed amendment affects Parks and Wildlife Code, Chapter 81.
6. Rule Text.
§65.194. Competitive Hunting Dog Event (Field Trials) and Fees.
(a) The department may authorize field trials on public hunting lands. All activities conducted pursuant to this section shall be subject to the provisions of this subchapter, except as specifically provided in this section.
(1) (No change.)
(2) An application for a Field Trial Permit shall be submitted at least 90 days in advance of the proposed event to the Wildlife Division regional director in whose region the proposed event would take place. The application shall include, at a minimum:
(A) the name, address, and telephone number of the sponsoring person(s) or organization(s), and the social security number of the person to whom the permit will be issued, if approved;
(B) – (H) (No change.)
(3) – (4) (No change.)
(5) The field trial permit shall be present and available on-site during all field trial activities. The permittee shall, prior to commencing any competition, attach to the permit an accurate list containing the names [and social security numbers] of all dog handlers and officials who at any time participate in the event, and the names [and social security numbers] of all spectators. The aggregate number of participants named on the list shall not exceed the number of participants authorized by the field trial permit. The list shall be sent to the regional director no later than ten days following the conclusion of the event.
(6) – (9) (No change.)
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
Commission Agenda Item No. 1
Exhibit B
LEGISLATIVE RULES REVIEW
CHAPTER 65. WILDLIFE – SUBCHAPTER O. COMMERCIAL NONGAME PERMITS
PROPOSAL PREAMBLE
1. Introduction.
The Texas Parks and Wildlife Department proposes an amendment to 31 TAC §65.327, concerning Commercial Nongame Permits. The proposed amendment would remove an unnecessary internal reference in subsection (b). The provision referenced (§65.331(b)) is not germane, as it consists of prohibited means and methods.
The proposed amendment is a result of the department’s review of its regulations under the provisions of Government Code, §2001.039, which requires each state agency to review each of its regulations no less frequently than every four years and to re-adopt, adopt with changes, or repeal each rules as a result of the review.
2. Fiscal Note.
Robert Macdonald, Regulations Coordinator, 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 administering or enforcing the rule.
3. Public Benefit/Cost Note.
Mr. Macdonald also has determined that for each of the first five years that the rule as proposed is in effect:
(A) The public benefit anticipated as a result of enforcing or administering the proposed rule will be accurate regulations.
There will be no adverse economic effect on persons required to comply with the rule.
(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, micro-businesses, or rural communities. 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 and microbusinesses and rural communities. Those guidelines state that an agency need only consider a proposed rule’s direct adverse economic impacts to determine if any further analysis is required. The department 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 proposed rule would result in no direct economic effect on any small businesses, micro-businesses, or rural community. Therefore, neither the economic impact statement nor the regulatory flexibility analysis described in Government Code, Chapter 2006, is required.
(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.
(F) 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 neither create nor eliminate a government program; not result in an increase or decrease in the number of full-time equivalent employee needs; not result in a need for additional General Revenue funding; not affect the amount of an existing fee; not create, expand, or repeal an existing regulation; not increase or decrease the number of individuals subject to regulation; and not positively or adversely affect the state’s economy.
4. Request for Public Comment.
Comments on the proposal may be submitted to Robert Macdonald at (512) 389-4775, e-mail: robert.macdonald@tpwd.texas.gov. Comments also may be submitted via the department’s website at http://www.tpwd.texas.gov/business/feedback/public_comment/.
5. Statutory Authority.
The amendment is proposed under the authority of Parks and Wildlife Code, §67.004, which authorizes the commission to establish any limits on the taking, possession, propagation, transportation, importation, exportation, sale, or offering for sale of nongame fish or wildlife that the department considers necessary to manage the species; and §67.0041, which authorizes the department to issue permits for the taking, possession, propagation, transportation, sale, importation, or exportation of a nongame species of fish or wildlife if necessary to properly manage that species.
The proposed amendment affects Parks and Wildlife Code, Chapter 67.
6. Rule Text.
65.327. Permit Required.
(a) (No change.)
(b) Permit Privileges and Restrictions.
(1) The holder of a valid nongame dealer permit may:
(A) collect nongame wildlife listed in §65.331[(b) and] (d) of this title (relating to Commercial Activity) from the wild;
(B) – (G) (No change.)
(2) – (6) (No change.)
(c) – (e) (No change.)
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