Work Session
Wednesday, March 23, 2022
9:00 a.m.
Texas Parks and Wildlife Department
Commission Hearing Room
4200 Smith School Road
Austin, TX 78744
Arch “Beaver” Aplin, III, Commission Chair
Carter Smith, Executive Director
Approval of the Previous Minutes from the Commission Work Session held January 26, 2022
- Update on the Texas Parks and Wildlife Department’s Progress in Implementing the Texas Parks and Wildlife Department Land and Water Resources Conservation and Recreation Plan – Carter Smith
- Internal Affairs Update
- Staff Recognition
- Hunter Education Program Celebrates 50th Year
- Texas Abandoned Crab Trap Removal Program Update
- Rolling Pines Fire Independent Review Update
- Financial Update – Reggie Pegues
- Briefing – Natural Agenda Update – Michael Goldsmith
- Internal Audit Update – Brandy Meeks
- Edwards Aquifer Habitat Conservation Plan Stakeholder Committee Appointment – Delegation of Authority to the Executive Director – Colette Barron Bradsby (Action Item No. 1)
- Aquatic Vegetation Management Rules – Recommended Adoption of Proposed Changes – Monica McGarrity (Action Item No. 2)
- 2022-2023 Statewide Recreational and Commercial Fishing Proclamation – Recommended Adoption of Proposed Changes – Michael Tennant, Les Casterline (Action Item No. 3)
- Statewide Oyster Fishery Proclamation – Closure of Oyster Reef Areas – Recommended Adoption of Proposed Changes – Robin Riechers (Action Item No. 4)
Fishing Guide License Rules – Request Permission to Publish Proposed Changes in the Texas Register – Les CasterlineWITHDRAWN- 2022-2023 Statewide Hunting and Migratory Game Bird Proclamation – Recommended Adoption of Proposed Changes – Alan Cain, Shawn Gray, Shaun Oldenburger (Action Item No. 5)
Sunset Recommendations – Uniform Rules for Refusal to Issue or Renew Non-Recreational Licenses and Permits – Request Permission to Publish Proposed Changes in the Texas Register – James MurphyWITHDRAWN- Comprehensive Chronic Wasting Disease (CWD) Management Rules – Triple T Provisions – Recommended Adoption of Proposed Changes – Alan Cain (Action Item No. 6)
- Briefing - Chronic Wasting Disease (CWD) Sampling Strategy and Efforts from Free Range Deer and Managed Lands Deer Program (MLDP) – Dr. J. Hunter Reed
- Briefing - Recreation Grants Overview – Dana Lagarde (Work Session and Executive Session)
- Request for Fiber Optic Cable Easement – Bastrop County – Approximately 0.2 Acres at Buescher State Park – Jason Estrella (Work Session and Executive Session) (Action Item No. 8)
- Request for Utility Easement – Palo Pinto County – Approximately 0.1 Acre at Lake Mineral Wells State Park and Trailway – Jason Estrella (Work Session and Executive Session) (Action Item No. 9)
- Land Acquisition Strategy – Liberty County – Approximately 50 Acres at Davis Hill State Park – Jason Estrella (Work Session and Executive Session) (Action Item No. 10)
- Acquisition of Land – Freestone County – Approximately 34 Acres at Richland Creek Wildlife Management Area – Jason Estrella (Work Session and Executive Session) (Action Item No. 11)
- Request for Pipeline Easement – Brazoria County – Approximately 2 Acres at the Justin Hurst Wildlife Management Area – Request Permission to Begin the Public Notice and Input Process – Ted Hollingsworth (Work Session and Executive Session)
- Litigation Update – James Murphy (Executive Session Only)
Land and Water Plan
Financial
Natural Resources
Land Conservation
Executive Session
Work Session Item No. 1
Presenter: Carter Smith
Work Session
Update on the Texas Parks and Wildlife Department’s Progress
in Implementing the Texas Parks and Wildlife Department Land
and Water Resources Conservation and Recreation Plan
March 23, 2022
I. Executive Summary: Executive Director Carter Smith will briefly update the Texas Parks and Wildlife Commission (Commission) on the status of Texas Parks and Wildlife Department’s (TPWD) efforts to implement the Land and Water Resources Conservation and Recreation Plan (plan).
II. Discussion: In 2001, the 77th Texas Legislature directed that TPWD develop a Land and Water Resources Conservation and Recreation Plan (Texas Parks and Wildlife Code section 11.104). In 2002, the Commission adopted the first plan. A revised plan was adopted by the Commission in January 2005. In November 2009, the Commission approved a new plan, effective January 1, 2010, that included broad input from stakeholders and the general public. Minor revisions continue to be made to the plan. The 2015 version of the plan is available on the TPWD website. Executive Director Carter Smith will update the Commission on TPWD’s recent progress in achieving the plan’s goals, objectives, and deliverables.
The plan consists of the following four goals:
- Practice, Encourage, and Enable Science-Based Stewardship of Natural and Cultural Resources
- Increase Access to and Participation in the Outdoors
- Educate, Inform, and Engage Texas Citizens in Support of Conservation and Recreation
- Employ Efficient, Sustainable, and Sound Business Practices
Work Session Item No. 2
Presenter: Reggie Pegues
Work Session
Financial Update
March 23, 2022
I. Executive Summary: The staff will present a financial overview of the Texas Parks and Wildlife Department (TPWD).
II. Discussion: The staff will update the Texas Parks and Wildlife Commission on state park, boat registration/titling, and license fee revenues collected by TPWD for Fiscal Year (FY) 2022. Staff will summarize recent budget adjustments for FY 2022.
Work Session Item No. 3
Presenter: Michael Goldsmith
Briefing
Natural Agenda Update
March 23, 2022
I. Executive Summary: Staff will summarize the development of Texas Parks and Wildlife Department (TPWD) Legislative Strategic Plan / Natural Agenda for the Fiscal Years (FYs) 2023-2027.
II. Discussion: Staff will summarize the status of updates to the TPWD Legislative Strategic Plan, internally titled the TPWD Natural Agenda, for state FYs 2023 to 2027 as prescribed by the Legislative Budget Board and the Governor’s Office.
Work Session Item No. 4
Presenter: Brandy Meeks
Work Session
Internal Audit Update
March 23, 2022
I. Executive Summary: The staff will present an update on the Texas Parks and Wildlife Department (TPWD) Fiscal Year (FY) 2022 Internal Audit Plan and ongoing or completed external audits.
II. Discussion: The staff will provide an update on the TPWD FY 2022 Internal Audit Plan, as well as a briefing of any external audits that have been recently completed or are ongoing.
WITHDRAWN Work Session Item No. 9
Presenter: Les Casterline
Work Session
Fishing Guide License Rules
Request Permission to Publish Proposed Changes in the Texas Register
March 23, 2022
I. Executive Summary: The Texas Parks and Wildlife Department (TPWD) staff requests permission to publish a proposed amendment in the Texas Register to require fishing guides operating on or in shared boundary waters between Texas and Louisiana to possess a valid United States Coast Guard Operator’s License.
II. Discussion: Under the provisions of Texas Parks and Wildlife Code section 47.004, the Texas Parks and Wildlife Commission is authorized to adopt rules governing the issuance and use of a resident fishing guide license, including rules creating separate resident fishing guide licenses for use in saltwater and freshwater.
The Louisiana Department of Wildlife and Fisheries has promulgated rules requiring fishing guides in Louisiana to possess an appropriate United States Coast Guard (USCG) license. The USCG has requested that TPWD align Texas regulations regarding fishing guide documentation requirements with those now in effect in Louisiana in order to prevent confusion on shared boundary waters. Under federal law (33 Code of Federal Regulations chapter 83), an operator’s license issued by USCG is currently required for any person who operates a boat or vessel for hire (which includes fishing guides) in federal waters (which includes the shared boundary waters of Texas and Louisiana). Under current rule in Texas, USCG licensure is required for fishing guides in coastal waters. The proposed amendment would add the boundary waters shared between Texas and Louisiana to the applicability of current Texas rule, thereby creating de facto reciprocity with Louisiana, allowing resident fishing guides from both states to operate in shared waters without legal jeopardy arising from compliance with USCG requirements.
Attachment – 1
Work Session Item No. 9
Exhibit A
FISHING GUIDE LICENSE RULES
PROPOSAL PREAMBLE
1. Introduction
The Texas Parks and Wildlife Department proposes an amendment to 31 TAC §57.997, concerning Fishing Guide License Requirements. The proposed amendment would make department rules regarding federal licensure and documentation requirements consistent with those in effect in Louisiana for boundary waters shared by both states.
The Louisiana Department of Wildlife and Fisheries has promulgated rules requiring fishing guides in Louisiana to possess an appropriate United States Coast Guard (USCG) license and has requested that the department align Texas regulations regarding fishing guide documentation requirements with those now in effect in Louisiana in order to prevent confusion. Under federal law (33 CFR Chapter 83), an operator’s license issued by the USCG is required for any person who operates a boat or vessel for hire (which includes fishing guides) in federal waters (which includes the shared boundary waters of Texas and Louisiana). Under current rule in Texas, USCG licensure is required only for fishing guides in coastal waters. The proposed amendment would add the boundary waters shared between Texas and Louisiana to the applicability of current Texas rule, thereby creating de facto reciprocity with Louisiana, allowing resident fishing guides from both states to operate in shared waters without legal jeopardy arising from compliance with USCG requirements.
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 government as a result of administering the rule.
There will be an effect on persons required to comply with the rule as proposed, which is identical to the economic impacts discussed in the analysis of the impacts to small and microbusinesses later in this preamble.
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 consistency of regulations on shared border waters with Louisiana.
(B) Under 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. 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, 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 a determined that there will be an adverse economic impact on small and microbusinesses as a result of the proposed amendment and has prepared the following regulatory flexibility analysis as required.
Department records indicate that currently there are 1,096 persons licensed as freshwater fishing guides in this state. The proposed rule would affect only those persons who engage in guided fishing on shared boundary waters of Texas and Louisiana, which is unknown. Also unknown is the number of Texas freshwater guides who currently do not possess the appropriate USGS license required by federal law. The department has determined that most if not all fishing guides affected by the proposed rule are small businesses or microbusinesses. For a freshwater guide who operates on shared boundary waters between Texas and Louisiana but does not possess the USCG license required by federal law, the department estimates the cost of compliance with the proposed amendment to be an initial cost of $1,150 and an additional cost of $350 occurring at five-year intervals thereafter. The cost of initial licensure includes an $800 USCG course fee, an estimated cost of $25 for federally required Cardiopulmonary Resuscitation (CPR) training, an estimated $75 cost for a physical examination, and the USCG license fee of $250. Additionally, the USCG requires licensees every five years to complete a CPR training course (estimated cost — $25), undergo a medical examination (estimated cost — $75), and pay a license fee (currently $250). The department notes that the requirement for USCG licensure is a federal requirement currently in effect and the department cannot modify or eliminate it.
The proposed amendment will not affect rural communities.
(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 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 a fee;
(5) create a new regulation;
(6) not expand an existing regulation;
(7) neither increase nor decrease the number of individuals subject to regulation; and
(8) not positively or adversely affect the state’s economy.
4. Request for Public Comment.
Comments on the proposed rule may be submitted to Assistant Commander Les Casterline, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-; email: les.casterline@tpwd.texas.gov or via the department website at www.tpwd.texas.gov.
5. Statutory Authority.
The amendment is proposed under Parks and Wildlife Code, §47.004, which authorizes the commission to adopt rules governing the issuance and use of a resident fishing guide license, including rules creating separate resident fishing guide licenses for use in saltwater and freshwater.
The proposed amendment affects Parks and Wildlife Code, Chapter 47.
6. Rule Text.
§57.997. Fishing Guide License Requirements.
(a) (No change)
(b) This subsection applies on and in all coastal waters of this state and all waters forming a common border between Texas and Louisiana. On or in the waters described in this subsection, no person shall operate a motorboat or vessel while engaged in business as a fishing guide unless that person is in physical possession of a valid, appropriate U.S. Coast Guard operator’s license.
[(b) No person operating a vessel or boat as a fishing guide on or in the coastal waters of this state may be issued a Fishing Guide license unless the person presents documentation to the license deputy that the applicant possesses a valid and appropriate U.S. Coast Guard Operator’s License.]
(c) – (d) (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
WITHDRAWN Work Session Item No. 11
Presenter: James Murphy
Work Session
Sunset Recommendations
Uniform Rules for Refusal to Issue or Renew Non-Recreational Licenses and Permits
Request Permission to Publish Proposed Changes in the Texas Register
March 23, 2022
I. Executive Summary: With this item staff requests permission to publish proposed rules to implement recommendations from the Texas Sunset Advisory Commission regarding department processes for denying issuance or renewal of certain non-recreational licenses and permits. The proposed rules would create a uniform process to guide department decisions to refuse issuance or renewal of specific licenses and permits identified by the Sunset Advisory Commission.
II. Discussion: Under Government Code, Chapter 325, the Sunset Advisory Commission is established to conduct reviews of state agencies to determine if a public need exists for the continuation of a state agency and to identify areas for improvement. Typically, state agencies undergo sunset review once every 12 years. The department underwent sunset review during the last regular session of the legislature and was reauthorized to continue in existence until September 1, 2033. As part of that process, the Sunset Advisory Commission adopted recommendations aimed to improve consistency and fairness for individuals and small business owners licensed by the department, including a directive to provide an option for an informal review for non-recreational license types that do not have an existing statutory review process and alignment of criminal and administrative enforcement processes to ensure fair, strong, and consistent enforcement. The proposed rules (located at Exhibits A and B) collectively implement the recommendation of the Sunset Advisory Commission.
Attachments – 6
Work Session Item No. 11
Exhibit A
SUNSET ADVISORY COMMISSION REGULATORY RECOMMENDATIONS
AGENCY DECISION TO REFUSE LICENSE OR PERMIT ISSUANCE OR RENEWAL
PROPOSAL PREAMBLE
1. Introduction
The Texas Parks and Wildlife Department proposes new 31 TAC §§56.1-56.5, concerning Agency Decision to Refuse License or Permit Issuance or Renewal. The proposed new rules would establish a uniform process to govern department decisions to refuse issuance or renewal of non-recreational licenses and permits for which such processes are not prescribed by statute.
Under Government Code, Chapter 325, the Sunset Advisory Commission is established to conduct reviews of state agencies to determine if a public need exists for the continuation of a state agency and to identify areas for improvement. Typically, state agencies undergo sunset review once every 12 years. The department underwent sunset review during the last regular session of the legislature and was reauthorized to continue in existence until September 1, 2033. As part of that process, the Sunset Advisory Commission adopted recommendations aimed to improve consistency and fairness for individuals and small business owners licensed by the department, including a directive to provide an option for an informal review for non-recreational license types that do not have an existing statutory review process and alignment of criminal and administrative enforcement processes to ensure fair, strong, and consistent enforcement.
Proposed new §56.1, concerning Definitions, would create unambiguous meanings for specialized words and terms used in the rules. “Applicant” would be defined as “a person who seeks to obtain a license or permit issued by the department.” The definition is necessary to make clear that an applicant is a person who seeks to obtain a license or permit generally, whether initial permit or license issuance or renewal. “Final conviction” would be defined as “a final judgment of guilt, the granting of deferred adjudication or pretrial diversion, or the entering of a plea of guilty or nolo contendere.” The definition is necessary to make explicit the various juridical outcomes upon which the process described in the rules is predicated. “License or Permit” would be defined as “a non-recreational license or permit issued by the department, including but not limited to the licenses and permits listed in §56.5 of this title, ” which is necessary to identify the specific licenses and permits to which the rules apply, and to definitively exclude licenses and permits for which the process of denying permit or license issuance or referral is wholly or partially prescribed by statute.
Proposed new §56.2, concerning Refusal to Issue or Renew Permit or License, would identify the specific types of criminal conduct to be considered by the department in determining whether to issue or renew a permit or license. The department believes that a decision to issue or renew a license or permit should take into account the applicant’s history of violations involving the possession of live animals; the commercial exploitation of public wildlife and fisheries resources; major violations of the Parks and Wildlife Code (Class B misdemeanors, Class A misdemeanors, and felonies); specific provisions of the Penal Code involving falsification of governmental records and animal cruelty; and federal laws applicable to conduct regarding unlawful wildlife trafficking or violations of federal airborne hunting laws. The department reasons that it is appropriate to deny the privilege of possessing live wildlife or engaging in the commercial exploitation of a public wildlife resource to persons who exhibit a demonstrable disregard for the statutes and regulations governing such activities. Similarly, it is appropriate to deny such privileges to a person who has exhibited demonstrable disregard for fish and wildlife law in general by committing more egregious (Class B misdemeanors, Class A misdemeanors, and felonies) violations of wildlife law. The department also believes that persons with a criminal history of disregard for honesty or truthfulness with respect to furnishing information required by law in applications, reports, or communications involving governmental records should be prevented from the privilege of possessing or benefiting from wildlife resources. The department similarly believes that persons who have been convicted of animal cruelty should not be allowed to possess or benefit from the possession or use of wildlife resources. Therefore, the proposed new rule would specify that the department may refuse permit or renewal issuance to persons who have been finally convicted of or received deferred adjudication for a violation of Parks and Wildlife Code, Chapter 43, Subchapters C (Permits for Scientific Research, Zoological Collection, Rehabilitation, and Educational Display), E (Permits for Trapping, Transporting and Transplanting Game Animals and Game Birds), G (Permits to Manage Wildlife and Exotic Animals from Aircraft) , L (Deer Breeder’s Permit), or R (Deer Management Permit – White-tailed Deer) or R-1 (Deer Management Permit – Mule Deer); violations of the Parks and Wildlife Code or rules of the commission that are Class A or B misdemeanors, felonies or state jail felonies; violations of Parks and Wildlife Code, §63.002 (which although a Class C misdemeanor, specifically addresses the unlawful possession of live game animals); Penal Code, §37.10 (Tampering with Governmental Record); Penal Code, §42.092 (Cruelty to Nonlivestock Animals); the federal Lacey Act; the federal Airborne Hunting Act; or any statutory or regulatory provision involving conduct or behavior regulated by the permit or license the applicant seeks to obtain or renew.
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 can be and often is 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 denial of a license or permit subject to the provisions of the proposed rule. 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.
In addition to providing for the possible refusal to issue or renew a license or permit on the basis of criminal conduct, the proposed new rule would provide for the ability of the department to deny license or permit issuance or renewal on the basis of noncompliance with applicable administrative provisions. Virtually all of the licenses and permits affected by the proposed new rules require some form of administrative process and oversight, including application processes, the payment of fees, and reporting and/or notification requirements. The application process is used by the department to ensure that a prospective permitee or licensee is qualified to and/or capable of enjoying the privileges of the license or permit. The information contained in reports and notifications is used by the department for a variety of oversight and management purposes, including as a measure to determine regulatory compliance during the period of validity of the permit or license. Therefore, proposed new subsection (b) would provide that the department may refuse to issue or renew a permit or license if an applicant fails to submit a completed application (including all application materials required by the department), the required fee, accurate required reports or notifications, and any additional information or material the department determines necessary to process the application.
Proposed new subsection (c) would provide for denial of permit or license issuance or renewal on the basis of outstanding debt owed to the department by the applicant. Under Parks and Wildlife Code, §12.301, a person who kills, catches, takes, possesses, or injures any fish, shellfish, reptile, amphibian, bird, or animal in violation of the Parks and Wildlife Code or regulation of the department is liable to the state for the value of each fish, shellfish, reptile, amphibian, bird, or animal unlawfully killed, caught, taken, possessed, or injured. Such payments are commonly referred to as “civil restitution.” The department believes that it is entirely reasonable to deny permit or license issuance or renewal to any applicant who has failed to remit required civil restitution for violation of conservation law.
Proposed new subsection (d) would establish the criteria used by the department to guide a decision to refuse permit or license issuance or denial. The department does not intend for denial of permit or license issuance or renewal to be either automatic or permanent; accordingly, the proposed new section would establish a matrix of various factors to be considered when making a determination to deny permit or license issuance or renewal. Those factors include the number of final convictions or administrative penalties; the seriousness of the conduct on which the final conviction or administrative penalty is based; the existence, number, and seriousness of offenses or violations other than offenses or violations that resulted in a final conviction or administrative penalty; the length of time between the most recent final conviction or administrative penalty and the permit or license application; whether the final conviction, administrative penalty, or other offense or violation was the result of negligence or intentional conduct; whether the final conviction or administrative penalty resulted from conduct committed or omitted by the applicant, an agent of the applicant, or both; the accuracy of the permit or license history information provided by the applicant; whether the applicant for a permit or license renewal agreed to any special provisions recommended by the department as conditions to the expiring permit; and other mitigating factors.
Proposed new §56.3, concerning Subpermittees, Volunteers, Agents, and Surrogates, would address the various peripheral roles of persons other than the permittee or licensee who are authorized to engage in activities authorized under a permit or license. In many cases, authorized activities are conducted by other persons in addition to the permittee. The department believes that, in addition to provisions affecting permittees, it is appropriate to prevent persons who have been convicted of or received deferred adjudication for an offense that otherwise is a reason for license or permit denial from assisting in activities involving live animals or that are conducted for the personal benefit of the permitee or licensee. The proposed new provision is necessary to prevent unscrupulous persons from circumventing the intent of the department (that they not engage in an activity for which they are prohibited from obtaining a license or permit to conduct) by using another person to obtain a permit with the objective of continuing to do business as usual in the name of the shadow permittee.
Proposed new §56.4, concerning Review of Agency Decision to Deny Issuance or Renewal of License or Permit, would create a review process for department decisions concerning the issuance and renewal of licenses and permits. The proposed amendment is necessary to create a process to allow persons who have been denied issuance of permits or permit renewals to have the decision reviewed by a panel of senior department managers. The process as proposed would allow the department to reverse such decisions upon further review.
Proposed new §56.5, concerning Permits and Licenses Affected, would list the specific licenses and permits identified by the Sunset Advisory Commission to which the proposed new rules apply.
2. Fiscal Note.
Robert Macdonald, Regulations Coordinator, 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 units of state or local governments as a result of administering the rules.
There will be no effect on persons required to comply with the rules as proposed, as the rules govern an agency process.
3. Public Benefit/Cost Note.
Mr. Macdonald 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 the establishment of a uniform process for an informal review of a department decision to refuse to issue or renew nonrecreational permits or licenses identified by the Sunset Advisory Commission for which a statutorily created review process is not provided.
(B) Under 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. 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, 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 the proposed rule has no direct effect on small businesses, micro-businesses, or rural communities. On this basis, the department has a determined that 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 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.
(F) 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 a fee;
(5) create a new regulation;
(6) not expand an existing regulation;
(7) neither increase nor decrease the number of individuals subject to regulation; and
(8) not positively or adversely affect the state’s economy.
4. Request for Public Comment.
Comments on the proposed rule may be submitted to Robert Macdonald, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4775; email: robert.macdonald@tpwd.texas.gov or via the department website at www.tpwd.texas.gov.
5. Statutory Authority.
The new rules are proposed under Parks and Wildlife Code, §31.0412, which authorizes the commission to adopt rules regarding licenses issued under Parks and Wildlife Code, §31.041, including rules regarding application and renewal procedures; §31.180, which authorizes the commission to promulgate rules necessary to implement Parks and Wildlife Code, Chapter 31, Subchapter G; §43.022, which requires the commission to adopt rules to govern the collecting, holding, possession, propagation, release, display, or transport of protected wildlife for scientific research, educational display, zoological collection, or rehabilitation; §43.855, which authorizes the commission to adopt rules to implement Parks and Wildlife Code, Chapter 43, Subchapter V, including rules to govern permit application forms, fees, and procedures; §43.109, which authorizes the commission to make regulations governing management of wildlife or exotic animals by the use of aircraft, including procedures for permit applications and rules to require, limit, or prohibit any activity as necessary to implement the subchapter; Chapter 67, which authorizes the commission to establish any limitations 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; Chapter 64, which authorizes the commission to prescribe eligibility requirements and fees for and issue any falconry, raptor propagation, or nonresident trapping permit; §65.003, which authorizes the commission to promulgate regulations to provide for permit application forms, fees, and procedures, and hearing procedures; §71.002, which authorizes the commission to promulgate regulations to provide for permit application forms, fees, and procedures, and hearing procedures.
The proposed amendment affects Parks and Wildlife Code, Chapters 31, 43, 65, 67, and 71.
6. Rule Text.
§56.1. Definitions. The following words and terms shall have the following meanings, unless the context clearly indicates otherwise.
(1) Applicant — A person who seeks to obtain a license or permit issued by the department.
(2) Final conviction — A final judgment of guilt, the granting of deferred adjudication or pretrial diversion, or the entering of a plea of guilty or nolo contendere.
(3) License or Permit—A non-recreational license or permit issued by the department, including but not limited to the licenses and permits listed in §56.5 of this title (relating to Permits and Licenses Affected).
§56.2. Refusal to Issue or Renew Permit or License.
(a) Criminal conduct. The department may refuse to issue or renew a license or permit to any person who has been finally convicted of or assessed an administrative penalty for a violation of:
(1) Parks and Wildlife Code, Chapter 43, Subchapter C, E, G, L, R, or R-1;
(2) a provision of the Parks and Wildlife Code not described by paragraph (1) of this section that is a Parks and Wildlife Code:
(A) Class A or B misdemeanor;
(B) state jail felony; or
(C) felony;
(3) Parks and Wildlife Code, §63.002;
(4) Penal Code, §37.10 or §42.092;
(5) the Lacey Act (16 U.S.C. §§3371-3378);
(6) the Airborne Hunting Act (16 U.S.C. §742j-1); or
(7) any statutory or regulatory provision not described in this subsection involving conduct or behavior regulated by the permit or license the applicant seeks to obtain or renew.
(b) Administrative compliance. The department may refuse to issue or renew a permit or license listed in §56.5 of this title (Relating to Permits and Licenses Affected) if an applicant fails to submit in a timely manner any of the following:
(1) a completed application, including all application materials required by the department;
(2) the required fee;
(3) accurate required reports or notifications;
(4) any additional information or material the department determines necessary to process the application.
(c) Outstanding liability to the department. The department may refuse to issue or renew a permit or license listed in §56.5 of this title if the applicant is liable to the state pursuant to Parks and Wildlife Code §12.301.
(d) Criteria for determination.
(1) In determining whether to issue a permit to or renew a permit, the department shall consider:
(A) the number of final convictions or administrative penalties;
(B) the seriousness of the conduct on which the final conviction or administrative penalty is based;
(C) the existence, number, and seriousness of offenses or violations other than offenses or violations that resulted in a final conviction or administrative penalty described by Subsection (a);
(D) the length of time between the most recent final conviction or administrative penalty and the permit application;
(E) whether the final conviction, administrative penalty, or other offense or violation was the result of negligence or intentional conduct;
(F) whether the final conviction or administrative penalty resulted from conduct committed or omitted by the applicant, an agent of the applicant, or both;
(G) the accuracy of the permit history information provided by the applicant;
(H) for a renewal, whether the applicant agreed to any special provisions recommended by the department as conditions to the expiring permit; and
(I) other mitigating factors.
(2) A determination under this subsection is not permanent and the department shall consider the factors listed in paragraph (1) of this subsection in subsequent applications.
§56.3. Subpermittees, Volunteers, Agents, and Surrogates.
(a) The department may prohibit any person from engaging in activities regulated under a permit or license as a subpermittee, agent, or volunteer if that person is prohibited for any reason from obtaining the permit or license or from engaging in activities authorized by the permit or license.
(b)The department may refuse to issue or renew a permit or license for any person the department has evidence is acting on behalf of or as a surrogate for another person who is prohibited for any reason from obtaining the permit or license or from engaging in activities authorized by the permit or license.
§56.4. Review of Agency Decision to Deny Issuance or Renewal of License or Permit.
(a) An applicant may request a review of a decision of the department to refuse issuance of a license or permit.
(1) An applicant seeking review of a decision of the department with respect to the issuance or renewal of a license or permit must request the review within 10 working days of being notified by the department that the application has been denied.
(2) Within 15 working days of receiving a request for review under this section, the department shall establish a date and time for the review.
(3) The department shall conduct the review within 30 days of receipt of the request required by paragraph (1) of this subsection, unless another date is established in writing by mutual agreement between the department and the requestor.
(4) The request for review shall be presented to a review panel. The review panel shall consist of three department managers with expertise in the area or subject matter germane to the permit or license, appointed or approved by the executive director, or designee. The department employee that made the decision to refuse to issue or renew the license or permit shall not be a member of the review panel.
(5) The decision of the review panel is final.
(b) In conducting a review of a decision by the department to refuse to issue or renew a permit, the department shall consider:
(1) any applicable factors listed under §56.2(d) of this title (relating to Refusal to Issue or Renew Permit or License);
(2) the applicant’s efforts toward rehabilitation;
(3) the likelihood that the applicant would repeat the conduct upon which the refusal is based;
(4) whether the conduct on which the refusal is based involved a threat to public safety; and
(5) other mitigating factors.
§56.5. Permits and Licenses Affected. The provisions of this chapter apply to the following types of permits and licenses.
(1) Aerial Wildlife Management;
(2) Alligator – all;
(3) Bait Shrimp Dealer;
(4) Bait Dealer – all;
(5) CITES Tag Dealer – all;
(6) Commercial Fishing Boat – all;
(7) Commercial Mussel and Clam Fisherman – all;
(8) Commercial Nongame – all;
(9) Controlled Exotic Snake – all;
(10) Controlled Exotic Species – all;
(11) Depredation;
(12) Educational Display;
(13) Falconry – all;
(14) Finfish Import;
(15) Fish Dealer – all;
(16) Fishing Guide – all;
(17) Furbearing Animal – all;
(18) Game Animal Breeder;
(19) Game Bird Breeder – all;
(20) Hunting Cooperative – all;
(21) Marine Dealer, Distributor, or Manufacturer;
(22) Menhaden Boat – all;
(23) Nongame Fish;
(24) Party Boat Operator;
(25) Private Bird Hunting Area;
(26) Scientific Plant Research;
(27) Scientific Research;
(28) Shell Buyer – all;
(29) Shrimp Boat Captain – all;
(30) Shrimp Offloading;
(31) Wildlife Management Association Area Hunting Lease – all;
(32) Wildlife Rehabilitation; and
(33) Zoological.
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
Work Session Item No. 11
Exhibit B
SUNSET ADVISORY COMMISSION REGULATORY RECOMMENDATIONS
AGENCY DECISION TO REFUSE LICENSE OR PERMIT ISSUANCE OR RENEWAL
PROPOSAL PREAMBLE
1. Introduction
The Texas Parks and Wildlife Department proposes new 31 TAC §§56.1-56.5, concerning Agency Decision to Refuse License or Permit Issuance or Renewal. The proposed new rules would establish a uniform process to govern department decisions to refuse issuance or renewal of non-recreational licenses and permits for which such processes are not prescribed by statute.
Under Government Code, Chapter 325, the Sunset Advisory Commission is established to conduct reviews of state agencies to determine if a public need exists for the continuation of a state agency and to identify areas for improvement. Typically, state agencies undergo sunset review once every 12 years. The department underwent sunset review during the last regular session of the legislature and was reauthorized to continue in existence until September 1, 2033. As part of that process, the Sunset Advisory Commission adopted recommendations aimed to improve consistency and fairness for individuals and small business owners licensed by the department, including a directive to provide an option for an informal review for non-recreational license types that do not have an existing statutory review process and alignment of criminal and administrative enforcement processes to ensure fair, strong, and consistent enforcement.
Proposed new §56.1, concerning Definitions, would create unambiguous meanings for specialized words and terms used in the rules. “Applicant” would be defined as “a person who seeks to obtain a license or permit issued by the department.” The definition is necessary to make clear that an applicant is a person who seeks to obtain a license or permit generally, whether initial permit or license issuance or renewal. “Final conviction” would be defined as “a final judgment of guilt, the granting of deferred adjudication or pretrial diversion, or the entering of a plea of guilty or nolo contendere.” The definition is necessary to make explicit the various juridical outcomes upon which the process described in the rules is predicated. “License or Permit” would be defined as “a non-recreational license or permit issued by the department, including but not limited to the licenses and permits listed in §56.5 of this title, ” which is necessary to identify the specific licenses and permits to which the rules apply, and to definitively exclude licenses and permits for which the process of denying permit or license issuance or referral is wholly or partially prescribed by statute.
Proposed new §56.2, concerning Refusal to Issue or Renew Permit or License, would identify the specific types of criminal conduct to be considered by the department in determining whether to issue or renew a permit or license. The department believes that a decision to issue or renew a license or permit should take into account the applicant’s history of violations involving the possession of live animals; the commercial exploitation of public wildlife and fisheries resources; major violations of the Parks and Wildlife Code (Class B misdemeanors, Class A misdemeanors, and felonies); specific provisions of the Penal Code involving falsification of governmental records and animal cruelty; and federal laws applicable to conduct regarding unlawful wildlife trafficking or violations of federal airborne hunting laws. The department reasons that it is appropriate to deny the privilege of possessing live wildlife or engaging in the commercial exploitation of a public wildlife resource to persons who exhibit a demonstrable disregard for the statutes and regulations governing such activities. Similarly, it is appropriate to deny such privileges to a person who has exhibited demonstrable disregard for fish and wildlife law in general by committing more egregious (Class B misdemeanors, Class A misdemeanors, and felonies) violations of wildlife law. The department also believes that persons with a criminal history of disregard for honesty or truthfulness with respect to furnishing information required by law in applications, reports, or communications involving governmental records should be prevented from the privilege of possessing or benefiting from wildlife resources. The department similarly believes that persons who have been convicted of animal cruelty should not be allowed to possess or benefit from the possession or use of wildlife resources. Therefore, the proposed new rule would specify that the department may refuse permit or renewal issuance to persons who have been finally convicted of or received deferred adjudication for a violation of Parks and Wildlife Code, Chapter 43, Subchapters C (Permits for Scientific Research, Zoological Collection, Rehabilitation, and Educational Display), E (Permits for Trapping, Transporting and Transplanting Game Animals and Game Birds), G (Permits to Manage Wildlife and Exotic Animals from Aircraft) , L (Deer Breeder’s Permit), or R (Deer Management Permit – White-tailed Deer) or R-1 (Deer Management Permit – Mule Deer); violations of the Parks and Wildlife Code or rules of the commission that are Class A or B misdemeanors, felonies or state jail felonies; violations of Parks and Wildlife Code, §63.002 (which although a Class C misdemeanor, specifically addresses the unlawful possession of live game animals); Penal Code, §37.10 (Tampering with Governmental Record); Penal Code, §42.092 (Cruelty to Nonlivestock Animals); the federal Lacey Act; the federal Airborne Hunting Act; or any statutory or regulatory provision involving conduct or behavior regulated by the permit or license the applicant seeks to obtain or renew.
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 can be and often is 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 denial of a license or permit subject to the provisions of the proposed rule. 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.
In addition to providing for the possible refusal to issue or renew a license or permit on the basis of criminal conduct, the proposed new rule would provide for the ability of the department to deny license or permit issuance or renewal on the basis of noncompliance with applicable administrative provisions. Virtually all of the licenses and permits affected by the proposed new rules require some form of administrative process and oversight, including application processes, the payment of fees, and reporting and/or notification requirements. The application process is used by the department to ensure that a prospective permitee or licensee is qualified to and/or capable of enjoying the privileges of the license or permit. The information contained in reports and notifications is used by the department for a variety of oversight and management purposes, including as a measure to determine regulatory compliance during the period of validity of the permit or license. Therefore, proposed new subsection (b) would provide that the department may refuse to issue or renew a permit or license if an applicant fails to submit a completed application (including all application materials required by the department), the required fee, accurate required reports or notifications, and any additional information or material the department determines necessary to process the application.
Proposed new subsection (c) would provide for denial of permit or license issuance or renewal on the basis of outstanding debt owed to the department by the applicant. Under Parks and Wildlife Code, §12.301, a person who kills, catches, takes, possesses, or injures any fish, shellfish, reptile, amphibian, bird, or animal in violation of the Parks and Wildlife Code or regulation of the department is liable to the state for the value of each fish, shellfish, reptile, amphibian, bird, or animal unlawfully killed, caught, taken, possessed, or injured. Such payments are commonly referred to as “civil restitution.” The department believes that it is entirely reasonable to deny permit or license issuance or renewal to any applicant who has failed to remit required civil restitution for violation of conservation law.
Proposed new subsection (d) would establish the criteria used by the department to guide a decision to refuse permit or license issuance or denial. The department does not intend for denial of permit or license issuance or renewal to be either automatic or permanent; accordingly, the proposed new section would establish a matrix of various factors to be considered when making a determination to deny permit or license issuance or renewal. Those factors include the number of final convictions or administrative penalties; the seriousness of the conduct on which the final conviction or administrative penalty is based; the existence, number, and seriousness of offenses or violations other than offenses or violations that resulted in a final conviction or administrative penalty; the length of time between the most recent final conviction or administrative penalty and the permit or license application; whether the final conviction, administrative penalty, or other offense or violation was the result of negligence or intentional conduct; whether the final conviction or administrative penalty resulted from conduct committed or omitted by the applicant, an agent of the applicant, or both; the accuracy of the permit or license history information provided by the applicant; whether the applicant for a permit or license renewal agreed to any special provisions recommended by the department as conditions to the expiring permit; and other mitigating factors.
Proposed new §56.3, concerning Subpermittees, Volunteers, Agents, and Surrogates, would address the various peripheral roles of persons other than the permittee or licensee who are authorized to engage in activities authorized under a permit or license. In many cases, authorized activities are conducted by other persons in addition to the permittee. The department believes that, in addition to provisions affecting permittees, it is appropriate to prevent persons who have been convicted of or received deferred adjudication for an offense that otherwise is a reason for license or permit denial from assisting in activities involving live animals or that are conducted for the personal benefit of the permitee or licensee. The proposed new provision is necessary to prevent unscrupulous persons from circumventing the intent of the department (that they not engage in an activity for which they are prohibited from obtaining a license or permit to conduct) by using another person to obtain a permit with the objective of continuing to do business as usual in the name of the shadow permittee.
Proposed new §56.4, concerning Review of Agency Decision to Deny Issuance or Renewal of License or Permit, would create a review process for department decisions concerning the issuance and renewal of licenses and permits. The proposed amendment is necessary to create a process to allow persons who have been denied issuance of permits or permit renewals to have the decision reviewed by a panel of senior department managers. The process as proposed would allow the department to reverse such decisions upon further review.
Proposed new §56.5, concerning Permits and Licenses Affected, would list the specific licenses and permits identified by the Sunset Advisory Commission to which the proposed new rules apply.
2. Fiscal Note.
Robert Macdonald, Regulations Coordinator, 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 units of state or local governments as a result of administering the rules.
There will be no effect on persons required to comply with the rules as proposed, as the rules govern an agency process.
3. Public Benefit/Cost Note.
Mr. Macdonald 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 the establishment of a uniform process for an informal review of a department decision to refuse to issue or renew nonrecreational permits or licenses identified by the Sunset Advisory Commission for which a statutorily created review process is not provided.
(B) Under 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. 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, 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 the proposed rule has no direct effect on small businesses, micro-businesses, or rural communities. On this basis, the department has a determined that 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 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.
(F) 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 a fee;
(5) create a new regulation;
(6) not expand an existing regulation;
(7) neither increase nor decrease the number of individuals subject to regulation; and
(8) not positively or adversely affect the state’s economy.
4. Request for Public Comment.
Comments on the proposed rule may be submitted to Robert Macdonald, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4775; email: robert.macdonald@tpwd.texas.gov or via the department website at www.tpwd.texas.gov.
5. Statutory Authority.
The new rules are proposed under Parks and Wildlife Code, §31.0412, which authorizes the commission to adopt rules regarding licenses issued under Parks and Wildlife Code, §31.041, including rules regarding application and renewal procedures; §31.180, which authorizes the commission to promulgate rules necessary to implement Parks and Wildlife Code, Chapter 31, Subchapter G; §43.022, which requires the commission to adopt rules to govern the collecting, holding, possession, propagation, release, display, or transport of protected wildlife for scientific research, educational display, zoological collection, or rehabilitation; §43.855, which authorizes the commission to adopt rules to implement Parks and Wildlife Code, Chapter 43, Subchapter V, including rules to govern permit application forms, fees, and procedures; §43.109, which authorizes the commission to make regulations governing management of wildlife or exotic animals by the use of aircraft, including procedures for permit applications and rules to require, limit, or prohibit any activity as necessary to implement the subchapter; Chapter 67, which authorizes the commission to establish any limitations 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; Chapter 64, which authorizes the commission to prescribe eligibility requirements and fees for and issue any falconry, raptor propagation, or nonresident trapping permit; §65.003, which authorizes the commission to promulgate regulations to provide for permit application forms, fees, and procedures, and hearing procedures; §71.002, which authorizes the commission to promulgate regulations to provide for permit application forms, fees, and procedures, and hearing procedures.
The proposed amendment affects Parks and Wildlife Code, Chapters 31, 43, 65, 67, and 71.
6. Rule Text.
§56.1. Definitions. The following words and terms shall have the following meanings, unless the context clearly indicates otherwise.
(1) Applicant — A person who seeks to obtain a license or permit issued by the department.
(2) Final conviction — A final judgment of guilt, the granting of deferred adjudication or pretrial diversion, or the entering of a plea of guilty or nolo contendere.
(3) License or Permit—A non-recreational license or permit issued by the department, including but not limited to the licenses and permits listed in §56.5 of this title (relating to Permits and Licenses Affected).
§56.2. Refusal to Issue or Renew Permit or License.
(a) Criminal conduct. The department may refuse to issue or renew a license or permit to any person who has been finally convicted of or assessed an administrative penalty for a violation of:
(1) Parks and Wildlife Code, Chapter 43, Subchapter C, E, G, L, R, or R-1;
(2) a provision of the Parks and Wildlife Code not described by paragraph (1) of this section that is a Parks and Wildlife Code:
(A) Class A or B misdemeanor;
(B) state jail felony; or
(C) felony;
(3) Parks and Wildlife Code, §63.002;
(4) Penal Code, §37.10 or §42.092;
(5) the Lacey Act (16 U.S.C. §§3371-3378);
(6) the Airborne Hunting Act (16 U.S.C. §742j-1); or
(7) any statutory or regulatory provision not described in this subsection involving conduct or behavior regulated by the permit or license the applicant seeks to obtain or renew.
(b) Administrative compliance. The department may refuse to issue or renew a permit or license listed in §56.5 of this title (Relating to Permits and Licenses Affected) if an applicant fails to submit in a timely manner any of the following:
(1) a completed application, including all application materials required by the department;
(2) the required fee;
(3) accurate required reports or notifications;
(4) any additional information or material the department determines necessary to process the application.
(c) Outstanding liability to the department. The department may refuse to issue or renew a permit or license listed in §56.5 of this title if the applicant is liable to the state pursuant to Parks and Wildlife Code §12.301.
(d) Criteria for determination.
(1) In determining whether to issue a permit to or renew a permit, the department shall consider:
(A) the number of final convictions or administrative penalties;
(B) the seriousness of the conduct on which the final conviction or administrative penalty is based;
(C) the existence, number, and seriousness of offenses or violations other than offenses or violations that resulted in a final conviction or administrative penalty described by Subsection (a);
(D) the length of time between the most recent final conviction or administrative penalty and the permit application;
(E) whether the final conviction, administrative penalty, or other offense or violation was the result of negligence or intentional conduct;
(F) whether the final conviction or administrative penalty resulted from conduct committed or omitted by the applicant, an agent of the applicant, or both;
(G) the accuracy of the permit history information provided by the applicant;
(H) for a renewal, whether the applicant agreed to any special provisions recommended by the department as conditions to the expiring permit; and
(I) other mitigating factors.
(2) A determination under this subsection is not permanent and the department shall consider the factors listed in paragraph (1) of this subsection in subsequent applications.
§56.3. Subpermittees, Volunteers, Agents, and Surrogates.
(a) The department may prohibit any person from engaging in activities regulated under a permit or license as a subpermittee, agent, or volunteer if that person is prohibited for any reason from obtaining the permit or license or from engaging in activities authorized by the permit or license.
(b)The department may refuse to issue or renew a permit or license for any person the department has evidence is acting on behalf of or as a surrogate for another person who is prohibited for any reason from obtaining the permit or license or from engaging in activities authorized by the permit or license.
§56.4. Review of Agency Decision to Deny Issuance or Renewal of License or Permit.
(a) An applicant may request a review of a decision of the department to refuse issuance of a license or permit.
(1) An applicant seeking review of a decision of the department with respect to the issuance or renewal of a license or permit must request the review within 10 working days of being notified by the department that the application has been denied.
(2) Within 15 working days of receiving a request for review under this section, the department shall establish a date and time for the review.
(3) The department shall conduct the review within 30 days of receipt of the request required by paragraph (1) of this subsection, unless another date is established in writing by mutual agreement between the department and the requestor.
(4) The request for review shall be presented to a review panel. The review panel shall consist of three department managers with expertise in the area or subject matter germane to the permit or license, appointed or approved by the executive director, or designee. The department employee that made the decision to refuse to issue or renew the license or permit shall not be a member of the review panel.
(5) The decision of the review panel is final.
(b) In conducting a review of a decision by the department to refuse to issue or renew a permit, the department shall consider:
(1) any applicable factors listed under §56.2(d) of this title (relating to Refusal to Issue or Renew Permit or License);
(2) the applicant’s efforts toward rehabilitation;
(3) the likelihood that the applicant would repeat the conduct upon which the refusal is based;
(4) whether the conduct on which the refusal is based involved a threat to public safety; and
(5) other mitigating factors.
§56.5. Permits and Licenses Affected. The provisions of this chapter apply to the following types of permits and licenses.
(1) Aerial Wildlife Management;
(2) Alligator – all;
(3) Bait Shrimp Dealer;
(4) Bait Dealer – all;
(5) CITES Tag Dealer – all;
(6) Commercial Fishing Boat – all;
(7) Commercial Mussel and Clam Fisherman – all;
(8) Commercial Nongame – all;
(9) Controlled Exotic Snake – all;
(10) Controlled Exotic Species – all;
(11) Depredation;
(12) Educational Display;
(13) Falconry – all;
(14) Finfish Import;
(15) Fish Dealer – all;
(16) Fishing Guide – all;
(17) Furbearing Animal – all;
(18) Game Animal Breeder;
(19) Game Bird Breeder – all;
(20) Hunting Cooperative – all;
(21) Marine Dealer, Distributor, or Manufacturer;
(22) Menhaden Boat – all;
(23) Nongame Fish;
(24) Party Boat Operator;
(25) Private Bird Hunting Area;
(26) Scientific Plant Research;
(27) Scientific Research;
(28) Shell Buyer – all;
(29) Shrimp Boat Captain – all;
(30) Shrimp Offloading;
(31) Wildlife Management Association Area Hunting Lease – all;
(32) Wildlife Rehabilitation; and
SUNSET ADVISORY COMMISSION REGULATORY RECOMMENDATIONS
AGENCY DECISION TO REFUSE LICENSE OR PERMIT ISSUANCE OR RENEWAL
CONFORMING CHANGES – CHAPTER 53. FINANCE
PROPOSAL PREAMBLE
1. Introduction.
The Texas Parks and Wildlife Department proposes the repeal of 31 TAC §53.113, concerning Refusal to Issue or Renew License; Review of Agency Decision to Refuse or Renew License.
Under Government Code, Chapter 325, the Sunset Advisory Commission is established to conduct reviews of state agencies to determine if a public need exists for the continuation of a state agency and to identify areas for improvement. Typically, state agencies undergo sunset review once every 12 years. The department underwent sunset review during the last regular session of the legislature and was reauthorized to continue in existence until September 1, 2033. As part of that process, the Sunset Advisory Commission adopted recommendations aimed to improve consistency and fairness for individuals and small business owners licensed by the department, including a directive to provide an option for an informal review for non-recreational license types that do not have an existing statutory review process and alignment of criminal and administrative enforcement processes to ensure fair, strong, and consistent enforcement.
In another proposed rulemaking published elsewhere in this edition of the Texas Register, the department would establish a uniform process for decisions to refuse issuance or renewal of licenses and permits for which such processes are not prescribed by statute. As a result, conforming changes must be made in order to eliminate conflicts with current rules regarding those processes. The proposed repeal would eliminate the current rule governing agency decisions to refuse permit issuance or renewal of licenses for marine dealers, distributors, and manufacturers.
2. Fiscal Note.
Robert Macdonald, Regulations Coordinator, has determined that for each of the first five years that the repeal as proposed is in effect, there will be no fiscal implications to state or local government as a result of administering the repeal.
There will be no effect on persons required to comply with the repeal as proposed.
3. Public Benefit/Cost Note.
Mr. Macdonald also has determined that for each of the first five years that the repeal as proposed is in effect:
(A) The public benefit anticipated as a result of enforcing or administering the proposed repeal will be compliance with the establishment of a uniform process for an informal review of a department decision to refuse to issue or renew all nonrecreational permits or licenses identified by the Sunset Advisory Commission for which a statutorily created review process is not provided.
(B) Under 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. 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, 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 the proposed repeal has no effect on small businesses, micro-businesses, or rural communities. On this basis, the department has a determined that 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 repeal 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 repeal.
(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 repeal.
(F) In compliance with the requirements of Government Code, §2001.0221, the department has prepared the following Government Growth Impact Statement (GGIS). The repeal 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 a fee;
(5) not create a new regulation;
(6) not expand an existing regulation;
(7) neither increase nor decrease the number of individuals subject to regulation; and
(8) not positively or adversely affect the state’s economy.
4. Request for Public Comment.
Comments on the proposed rule may be submitted to Robert Macdonald, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4775; email: robert.macdonald@tpwd.texas.gov or via the department website at www.tpwd.texas.gov.
5. Statutory Authority.
The repeal is proposed under Parks and Wildlife Code, §31.0412, which authorizes the commission to adopt rules regarding licenses issued under Parks and Wildlife Code, §31.041, including rules regarding application and renewal procedures.
The proposed repeal affects Parks and Wildlife Code, Chapter 31.
6. Rule Text.
§53.113. Refusal to Issue or Renew License; Review of Agency Decision to Refuse or Renew License
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
(33) Zoological.
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
Work Session Item No. 11
Exhibit C
SUNSET ADVISORY COMMISSION REGULATORY RECOMMENDATIONS
AGENCY DECISION TO REFUSE LICENSE OR PERMIT ISSUANCE OR RENEWAL
CONFORMING CHANGES – CHAPTER 55. LAW ENFORCEMENT
PROPOSAL PREAMBLE
1. Introduction
The Texas Parks and Wildlife Department proposes amendments to 31 TAC §55.404, concerning Party Boat Operator License — General Provisions, and §55.653, concerning Controlled Exotic Snakes.
Under Government Code, Chapter 325, the Sunset Advisory Commission is established to conduct reviews of state agencies to determine if a public need exists for the continuation of a state agency and to identify areas for improvement. Typically, state agencies undergo sunset review once every 12 years. The department underwent sunset review during the last regular session of the legislature and was reauthorized to continue in existence until September 1, 2033. As part of that process, the Sunset Advisory Commission adopted recommendations aimed to improve consistency and fairness for individuals and small business owners licensed by the department, including a directive to provide an option for an informal review for non-recreational license types that do not have an existing statutory review process and alignment of criminal and administrative enforcement processes to ensure fair, strong, and consistent enforcement.
In another proposed rulemaking published elsewhere in this edition of the Texas Register, the department would establish a uniform process for decisions to refuse issuance or renewal of non-recreational licenses and permits for which such processes are not prescribed by statute. As a result, conforming changes must be made in order to eliminate conflicts with current rules regarding those processes. The proposed amendments would eliminate the current rules governing agency decisions to refuse permit issuance or renewal of licenses for holders of party boat operators licenses and holders of controlled exotic snake permits.
2. Fiscal Note.
Robert Macdonald, Regulations Coordinator, 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 government as a result of administering the rules.
There will be no effect on persons required to comply with the rules as proposed.
3. Public Benefit/Cost Note.
Mr. Macdonald 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 the establishment of a uniform process for an informal review of a department decision to refuse to issue or renew all nonrecreational permits or licenses identified by the Sunset Advisory Commission for which a statutorily created review process is not provided.
(B) Under 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. 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, 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 the proposed rules have no effect on small businesses, micro-businesses, or rural communities. On this basis, the department has a determined that 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 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.
(F) 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 a fee;
(5) not create a new regulation;
(6) not expand an existing regulation;
(7) neither increase nor decrease the number of individuals subject to regulation; and
(8) not positively or adversely affect the state’s economy.
4. Request for Public Comment.
Comments on the proposed rule may be submitted to Robert Macdonald, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4775; email: robert.macdonald@tpwd.texas.gov or via the department website at www.tpwd.texas.gov.
5. Statutory Authority.
The amendment is proposed under Parks and Wildlife Code, §31.180, which authorizes the commission to promulgate rules necessary to implement Parks and Wildlife Code, Chapter 31, Subchapter G.
The proposed amendments affect Parks and Wildlife Code, Chapter 31.
6. Rule Text.
§55.404. Party Boat Operator License — General Provisions.
(a) – (d) (No change.)
[(e) Refusal to Issue or Renew License; Review of Agency Decision to Refuse or Renew License.
[(1) The department may refuse to issue or renew a license under this subchapter if:]
[(A) an applicant is liable to the state under Parks and Wildlife Code §12.301;]
[(B) an applicant has a final conviction or has been assessed an administrative penalty for a violation of:]
[(i) Parks and Wildlife Code, Chapter 31, involving reckless or negligent behavior, or behavior that placed passengers in peril.]
[(ii) a provision of the Parks and Wildlife Code that is punishable as a Parks and Wildlife Code:]
[(I) Class A or B misdemeanor;]
[(II) state jail felony; or]
[(III) felony;]
[(iii) a violation of Penal Code, Chapter 49 involving the operation of a motorboat;]
[(iv) a violation of Water Code, §26.121; or]
[(v) any federal or state law relating to the sale, distribution, financing, registration, or taxing of a vessel, motorboat, or outboard motor; or]
[(C) the department has evidence that the applicant is acting on behalf of or as a surrogate for another person or entity who has a final conviction or has been assessed an administrative penalty for any violation listed in this subsection.]
[(2) The department will not issue a party boat operator license to a person who is prohibited from holding an equivalent license in another state.]
[(3) In determining whether to issue or renew a license under this section, the department may consider:]
[(A) the number of final convictions or administrative penalties;]
[(B) the seriousness of the conduct on which the final conviction or administrative penalty is based;]
[(C) the existence, number, and seriousness of offenses or violations other than offenses or violations that resulted in a final conviction or administrative penalty described by paragraph (1) of this subsection;]
[(D) the length of time between the most recent final conviction or administrative penalty and the license application;]
[(E) whether the final conviction, administrative penalty, or other offense or violation was the result of negligence or intentional conduct;]
[(F) whether the final conviction or administrative penalty resulted from conduct committed or omitted by the applicant, an agent of the applicant, or both; and
[(G) other mitigating factors.]
[(4) The department shall provide to the applicant a written statement of the reasons for a decision to deny the issuance or renewal of a license.]
[(5) An applicant may request a review of a decision of the department with respect to license issuance or denial. The request for review must be made within 30 days of being notified by the department that the application for a license or license renewal has been denied. The review request must be in writing and addressed to: Marine Enforcement, Texas Parks and Wildlife Department, 4200 Smith School Rd., Austin, TX 78744. If no review request is received within 30 days of the date of the letter notifying the licensee of the department’s intent to refuse issuance or renewal of the license, the decision to deny the issuance or renewal of a license is final.]
[(A) Within 10 working days of receiving a request for review under this section, the department shall establish a date and time for the review.]
[(B) The department shall conduct the review within 30 days of receipt of the request required by subparagraph (A) of this section, unless another date is established in writing by mutual agreement between the department and the requestor.]
[(C) The request for review shall be presented to a review panel. The review panel shall consist of three department managers with knowledge in marine regulations, appointed or approved by the executive director or his or her designee.]
[(D) The decision of the review panel is final.]
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
The amendment is proposed under Parks and Wildlife Code, §43.855, which authorizes the commission to adopt rules to implement Parks and Wildlife Code, Chapter 43, Subchapter V, including rules to govern permit application forms, fees, and procedures.
The proposed amendment affects Parks and Wildlife Code, Chapter 43.
§55.653. Permit Issuance and Period of Validity.
(a) — (c) (No change.)
[(d) A person convicted of a violation of this subchapter may not obtain a permit before the fifth anniversary of the date of the conviction.]
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
Work Session Item No. 11
Exhibit D
SUNSET ADVISORY COMMISSION REGULATORY RECOMMENDATIONS
AGENCY DECISION TO REFUSE LICENSE OR PERMIT ISSUANCE OR RENEWAL
CONFORMING CHANGES – CHAPTER 57. FISHERIES
PROPOSAL PREAMBLE
1. Introduction
The Texas Parks and Wildlife Department proposes amendments to 31 TAC §57.124, concerning Refusal to Issue; Review of Agency Decision to Refuse Issuance, and §57.384, concerning Refusal to Issue; Review of Agency Decision to Refuse Issuance.
Under Government Code, Chapter 325, the Sunset Advisory Commission is established to conduct reviews of state agencies to determine if a public need exists for the continuation of a state agency and to identify areas for improvement. Typically, state agencies undergo sunset review once every 12 years. The department underwent sunset review during the last regular session of the legislature and was reauthorized to continue in existence until September 1, 2033. As part of that process, the Sunset Advisory Commission adopted recommendations aimed to improve consistency and fairness for individuals and small business owners licensed by the department, including a directive to provide an option for an informal review for non-recreational license types that do not have an existing statutory review process and alignment of criminal and administrative enforcement processes to ensure fair, strong, and consistent enforcement.
In another proposed rulemaking published elsewhere in this edition of the Texas Register, the department would establish a uniform process for decisions to refuse issuance or renewal of non-recreational licenses and permits for which such processes are not prescribed by statute. As a result, conforming changes must be made in order to eliminate conflicts with current rules regarding those processes. The proposed amendments would eliminate the current rules governing agency decisions to refuse permit issuance or renewal of exotic aquatic species permits and permits to possess or sell nongame fish taken from public fresh waters. The proposed amendments would also retitle the affected sections accordingly.
2. Fiscal Note.
Robert Macdonald, Regulations Coordinator, 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 government as a result of administering the rules.
There will be no effect on persons required to comply with the rules as proposed.
3. Public Benefit/Cost Note.
Mr. Macdonald 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 the establishment of a uniform process for an informal review of a department decision to refuse to issue or renew all nonrecreational permits or licenses identified by the Sunset Advisory Commission for which a statutorily created review process is not provided.
(B) Under 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. 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, 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 the proposed rules have no effect on small businesses, micro-businesses, or rural communities. On this basis, the department has a determined that 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 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.
(F) 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 a fee;
(5) not create a new regulation;
(6) not expand an existing regulation;
(7) neither increase nor decrease the number of individuals subject to regulation; and
(8) not positively or adversely affect the state’s economy.
4. Request for Public Comment.
Comments on the proposed rule may be submitted to Robert Macdonald, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4775; email: robert.macdonald@tpwd.texas.gov or via the department website at www.tpwd.texas.gov.
5. Statutory Authority.
The amendment is proposed under Parks and Wildlife Code, §66.007, which authorizes the commission to promulgate rules necessary to implement that section.
The proposed amendment affects Parks and Wildlife Code, Chapter 66.
6. Rule Text.
§57.124. Refusal to Issue[; Review of Agency Decision to Refuse Issuance].
[(a) Refusal to issue.]
[(1)] In addition to the provisions of Chapter 56 of this title (relating to Agency Decision to Refuse License or Permit Issuance or Renewal), the[The] department may refuse issuance or renewal, as applicable, of a permit to any person or for any facility if the department determines that a prospective activity constitutes a threat to native species, habitats, or ecosystems or is inconsistent with department management goals and objectives.
[(2) The department may refuse issuance, amendment, or renewal, as applicable, of a (permit to any person:]
[(A) who has been convicted of, pleaded guilty or nolo contendere to, received deferred adjudication or pre-trial diversion for, or been assessed an administrative or civil penalty for a violation of:]
[(i) this subchapter;]
[(ii) Parks and Wildlife Code, §§66.007, 66.0072, or 66.015;]
[(iii) Parks and Wildlife Code that is a Class B misdemeanor, a Class A misdemeanor, or felony;]
[(iv) Penal Code, §37.10;]
[(v) Lacey Act, 16 U.S.C. §§3371-3378; or]
[(vi) a provision of federal law applicable to grass carp.]
[(B) if another person employed, authorized, or otherwise utilized to perform permitted activities by the applicant has been convicted of, pleaded guilty or nolo contendere to, or received deferred adjudication or pre-trial diversion for an offense listed in subsection (a)(2)(A) of this section.]
[(3) The department may refuse to issue a permit to any person the department has evidence is acting on behalf of or as a surrogate for another person who is not eligible for a permit under the provisions of this subchapter.]
[(4) The department may refuse to renew the permit of any person who is not in compliance with applicable reporting or recordkeeping requirements.]
[(5) The duration of the denial period may be:]
[(A) determined by the department based upon the severity and relevance of the conviction and the applicant’s conviction and permit compliance history; and]
[(B) up to a period of five calendar years.]
[(b) Review of agency decision to refuse issuance.]
[(1) An applicant for a permit or permit renewal may request a review of a decision of the department to refuse issuance of a permit or permit renewal (as applicable).]
[(2) An applicant seeking review of a decision of the department must submit a written request for review within 10 working days of being notified by the department that the application for a permit or permit renewal has been denied.]
[(3) Within 10 working days of receiving a request for review under this section, the department shall establish a date and time for the review.]
[(4) The department shall seek to conduct the review within 30 days of receipt of the request required by paragraph (2) of this subsection unless another date is established in writing by mutual agreement between the department and the requestor.]
[(5) The request for review shall be presented to a review panel. The review panel shall consist of three department managers with knowledge of relevant resources or programs, appointed or approved by the executive director or designee.]
[(6) The decision of the review panel is final.]
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
The amendment is proposed under Parks and Wildlife Code, Chapter 67, which authorizes the commission to establish any limitations 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.
The proposed amendment affects Parks and Wildlife Code, Chapter 67.
§57.384. Refusal to Issue[; Review of Agency Decision to Refuse Issuance].
[(a)] The department may refuse to authorize any prospective activity on any water body or impose restrictions on permitted species, water bodies, devices, or live transfer if the department determines that:
(1) – (4) (No change.)
[(5) the applicant or assistant(s) have been:]
[(A) convicted of, pleaded guilty or nolo contendere to, or received deferred adjudication for a violation of Parks and Wildlife Code or a regulation of the commission; or]
[(B) convicted, pleaded guilty or nolo contendere, received deferred adjudication or pre-trial diversion, or assessed a civil penalty for a violation of 16 U.S.C. §§3371 — 3378 (the Lacey Act); or]
[(C) the department has evidence that the applicant is acting on behalf of or as a surrogate for another person not eligible for a permit under this subsection.]
[(b) An applicant for a permit under this subchapter may request a review of a decision of the department to refuse issuance of a permit or permit renewal.]
[(1) An applicant seeking review of a decision of the department with respect to permit issuance under this subchapter shall submit a written request to the department within 10 working days of being notified by the department of permit denial.]
[(2) The department shall conduct the review and notify the applicant of the results within 10 working days of receiving a request for review. The decision of the review panel shall be final.]
[(3) The request for review shall be presented to a review panel. The review panel shall consist of the following:]
[(A) the Deputy Executive Director for Natural Resources (or his or her designee);]
[(B) the Director of the Inland Fisheries Division (or his or her designee), as appropriate; and]
[(C) a department employee designated by the Director of the Inland Fisheries Division.]
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
Work Session Item No. 11
Exhibit E
SUNSET ADVISORY COMMISSION REGULATORY RECOMMENDATIONS
AGENCY DECISION TO REFUSE LICENSE OR PERMIT ISSUANCE OR RENEWAL
CONFORMING CHANGES – CHAPTER 65. WILDLIFE
PROPOSAL PREAMBLE
1. Introduction
The Texas Parks and Wildlife Department proposes the repeal of 31 TAC §65.230 and amendments to §§65.154, concerning Issuance of Permit; Amendment and Renewal; 65.255, concerning Bobcat Dealer Permits; 65.264, concerning Permit Application Requirements; 65.329, concerning Permit Application; 65.363, concerning Nuisance Alligator Control; 65.376, concerning Possession of Live Fur-bearing Animals; and 57.384, concerning Refusal to Issue; Review of Agency Decision to Refuse Issuance.
Under Government Code, Chapter 325, the Sunset Advisory Commission is established to conduct reviews of state agencies to determine if a public need exists for the continuation of a state agency and to identify areas for improvement. Typically, state agencies undergo sunset review once every 12 years. The department underwent sunset review during the last regular session of the legislature and was reauthorized to continue in existence until September 1, 2033. As part of that process, the Sunset Advisory Commission adopted recommendations aimed to improve consistency and fairness for individuals and small business owners licensed by the department, including a directive to provide an option for an informal review for non-recreational license types that do not have an existing statutory review process and alignment of criminal and administrative enforcement processes to ensure fair, strong, and consistent enforcement.
In another proposed rulemaking published elsewhere in this edition of the Texas Register, the department would establish a uniform process for decisions to refuse issuance or renewal of non-recreational licenses and permits for which such processes are not prescribed by statute. As a result, conforming changes must be made in order to eliminate conflicts with current rules regarding those processes. The proposed amendments would eliminate the current rules governing agency decisions to refuse permit issuance or renewal for various permits and licenses and retitle affected sections where necessary.
2. Fiscal Note.
Robert Macdonald, Regulations Coordinator, 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 government as a result of administering the rules.
There will be no effect on persons required to comply with the rules as proposed.
3. Public Benefit/Cost Note.
Mr. Macdonald 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 the establishment of a uniform process for an informal review of a department decision to refuse to issue or renew all nonrecreational permits or licenses identified by the Sunset Advisory Commission for which a statutorily created review process is not provided.
(B) Under 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. 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, 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 the proposed rules have no effect on small businesses, micro-businesses, or rural communities. On this basis, the department has a determined that 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 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.
(F) 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 a fee;
(5) not create a new regulation;
(6) not expand an existing regulation;
(7) neither increase nor decrease the number of individuals subject to regulation; and
(8) not positively or adversely affect the state’s economy.
4. Request for Public Comment.
Comments on the proposed rule may be submitted to Robert Macdonald, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4775; email: robert.macdonald@tpwd.texas.gov or via the department website at www.tpwd.texas.gov.
5. Statutory Authority.
The amendment is proposed under Parks and Wildlife Code, §43.109, which authorizes the commission to make regulations governing management of wildlife or exotic animals by the use of aircraft, including procedures for permit applications and rules to require, limit, or prohibit any activity as necessary to implement the subchapter.
The proposed amendment affects Parks and Wildlife Code, Chapter 43.
6. Rule Text.
§65.154. Issuance of Permit; Amendment and Renewal.
(a) Upon the filing of a properly executed application and payment of the fee specified by §53.15 of this title (relating to Miscellaneous Fisheries and Wildlife Licenses and Permits), the department may issue or renew an AMP to an individual if:
(1) [the applicant has not failed to disclose any material information required, or has not made any false statement regarding any material fact in connection with the application;]
[(2)] the applicant will use the AMP only for the purpose of protecting or aiding in the administration or protection of land, water, wildlife, livestock, domesticated animals, human life, or crops; and
(2)[(3)] the AMP requested, in the judgment of the department, will aid in the management of wildlife and exotic animals and will not have a deleterious effect on indigenous species.
(b) – (c) (No change.)
[(d) The department may refuse to issue to or renew an AWMP for any person who has been finally convicted of, pleaded nolo contendere to, received deferred adjudication, or assessed an administrative penalty for a violation of:]
[(1) Parks and Wildlife Code, Chapter 43, Subchapter C, E, G, L, R, or R-1;]
[(2) a provision of the Parks and Wildlife Code that is not described by paragraph (1) of this subsection that is punishable as a Parks and Wildlife Code:]
[(A) Class A or B misdemeanor;]
[(B) state jail felony; or]
[(C) felony;]
[(3) Parks and Wildlife Code, §63.002;]
[(4) the Lacey Act (16 U.S.C. §§3371-3378); or]
[(5) 16 U.S.C. §742j-1 (commonly referred as the Airborne Hunting Act, or AHA).]
[(e) The department may refuse to issue an AMP to or renew an AMP for any person the department has evidence is acting on behalf of or as a surrogate for another person who is prohibited by the provisions of this subchapter from obtaining an AMP or engaging in AMP activities.]
[(f) An applicant for an AMP or AMP renewal may request a review of a decision of the department to refuse issuance of an AMP or AMP renewal (as applicable).]
[(1) An applicant seeking review of a decision of the department with respect to the issuance or renewal of an AMP must request the review within 10 working days of being notified by the department that the application has been denied.]
[(2) Within 10 working days of receiving a request for review under this section, the department shall establish a date and time for the review.]
[(3) The department shall conduct the review within 30 days of receipt of the request required by paragraph (2) of this subsection, unless another date is established in writing by mutual agreement between the department and the requestor.]
[(4) The request for review shall be presented to a review panel. The review panel shall consist of three department managers with expertise in the management of wildlife from aircraft, appointed or approved by the executive director, or designee.]
[(5) The decision of the review panel is final.]
(d)[(g)] No 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 this section may act or contract to act as a gunner for an AMP holder.
(e)[(h)] An AMP is not transferable or assignable.
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
The amendment is proposed under Parks and Wildlife Code, Chapter 67, which authorizes the commission to establish any limitations 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.
The proposed amendment affects Parks and Wildlife Code, Chapter 67.
§65.255. Bobcat Dealer Permits.
(a) – (d) (No change.)
[(e) The department reserves the right to refuse tag issuance to any dealer not in compliance with the provisions of this subchapter.]
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
The amendment is proposed under Parks and Wildlife Code, Chapter 64, which authorizes the commission to prescribe eligibility requirements and fees for and issue any falconry, raptor propagation, or nonresident trapping permit.
The proposed amendment affects Parks and Wildlife Code, Chapter 64.
§65.264. Permit Application Requirements.
(a) – (f) (No change.)
[(g) The department may refuse permit issuance or renewal to any person who within five years of applying for a permit issued under the authority of this subchapter has been finally convicted of or received deferred adjudication for:
[(1) a violation of Parks and Wildlife Code, Chapter 43, Subchapters C, E, L, or R or Chapter 49;
[(2) a violation of Parks and Wildlife Code that is a Class B misdemeanor, a Class A misdemeanor, or felony; or
[(3) a violation of Parks and Wildlife Code, §63.002.]
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
The amendment is proposed under Parks and Wildlife Code, Chapter 67, which authorizes the commission to establish any limitations 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.
The proposed amendment affects Parks and Wildlife Code, Chapter 67.
§65.329. Permit Application.
(a) – (b) (No change.)
[(c) The department may 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:]
[(1) Parks and Wildlife Code, Chapter 43, Subchapters C, E, L, or R;]
[(2) Parks and Wildlife Code, Chapter 67;]
[(3) a provision of the Parks and Wildlife Code that is punishable as a Class A or B Parks and Wildlife Code misdemeanor, a Parks and Wildlife Code state jail felony, or a Parks and Wildlife Code felony;]
[(4) Parks and Wildlife Code, §63.002; or]
[(5) the Lacey Act (16 U.S.C. §§3371-3378).]
[(d) The department may prohibit any person from acting as an agent of any permittee if the person has been convicted of, pleaded nolo contendere to, received deferred adjudication, or been assessed an administrative penalty for an offense listed in subsection (c) of this section.]
[(e) The department may refuse to issue a permit to any person the department has evidence is acting on behalf of or as a surrogate for another person who is prohibited by the provisions of this subsection from engaging in permitted activities.]
[(f) The department may refuse to issue or renew a permit to any person who is not in compliance with applicable reporting or recordkeeping requirements.]
[(g) An applicant for a permit or permit renewal may request a review of a decision of the department to refuse issuance of a permit or permit renewal (as applicable).]
[(h) An applicant seeking review of a decision of the department with respect to permit issuance must request the review within 10 working days of being notified by the department that the application for a permit or permit renewal has been denied.]
[(1) Within 10 working days of receiving a request for review under this section, the department shall establish a date and time for the review.]
[(2) The department shall conduct the review within 30 days of receipt of the request required by subsection (g) of this section, unless another date is established in writing by mutual agreement between the department and the requestor.]
[(3) The request for review shall be presented to a review panel. The review panel shall consist of three department managers with expertise in the subject of the permit, appointed or approved by the executive director, or designee.]
[(4) The decision of the review panel is final.]
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
The amendment is proposed under Parks and Wildlife Code, §65.003, which authorizes the commission to promulgate regulations to provide for permit application forms, fees, and procedures, and hearing procedures.
The proposed amendment affects Parks and Wildlife Code, Chapter 65.
§65.363. Nuisance Alligator Control.
(a) (No change.)
(b) Permit Application and Issuance.
(1) (No change.)
(2) In addition to the provisions of Chapter 56 of this title (relating to Agency Decision to Refuse License or Permit Issuance or Renewal Based on Personal Conduct) the[The] department may refuse to issue a permit to any person who, in the department’s determination, lacks the skill, experience, or aptitude to adequately perform the activities typically involved in nuisance alligator control.
(c) – (f) (No change.)
[(g) Denial of Permit Issuance. The department may refuse permit issuance to any person who has been convicted of, pleaded nolo contendere to, or received deferred adjudication for:]
[(1) a violation of Parks and Wildlife Code, Chapter 43, Subchapters C, E, L, or R, or Parks and Wildlife Code, Chapter 65;]
[(2) a violation of Parks and Wildlife Code that is a Class B misdemeanor, a Class A misdemeanor, or a felony;]
[(3) a violation of Parks and Wildlife Code, §63.002; or]
[(4) convicted, pleaded nolo contendere, received deferred adjudication or pre-trial diversion, or assessed a civil penalty for a violation of 16 U.S.C. §§3371 — 3378 (the Lacey Act).]
[(h) Review of Agency Decision. An applicant for a permit under this subchapter may request a review of a decision of the department to refuse issuance of a permit.]
[(1) An applicant seeking review of a decision of the department with respect to permit issuance under this subchapter shall first contact the department within 10 working days of being notified by the department of permit denial.]
[(2) The department shall schedule a review within 10 days of receipt of a request for a review. The department shall conduct the review and notify the applicant of the results within 45 working days of receiving a request for review.]
[(3) The request for review shall be presented to a review panel. The review panel shall consist of the following, or their designees:]
[(A) the Deputy Executive Director for Fisheries and Wildlife;]
[(B) the Director of the Wildlife Division; and]
[(C) the Deputy Division Director of the Wildlife Division.]
[(4) The decision of the review panel is the final department decision.]
(g)[(i)] Prohibited Acts. It is an offense for a permittee to:
(1) violate a provision of this subchapter;
(2) violate a condition of a permit issued under this subchapter; or
(3) treat or allow the treatment of an alligator in a cruel manner as defined in Penal Code, §42.092.
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
The amendment is proposed under Parks and Wildlife Code, §71.002, which authorizes the commission to promulgate regulations to provide for permit application forms, fees, and procedures, and hearing procedures.
The proposed amendment affects Parks and Wildlife Code, Chapter 71.
§65.376. Possession of Live Fur-bearing Animals.
(a) – (f) (No change.)
[(g) The department may 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:]
[(1) Parks and Wildlife Code, Chapter 43, Subchapters C, E, L, or R;]
[(2) Parks and Wildlife Code, Chapter 71;]
[(3) a provision of the Parks and Wildlife Code that is punishable as a Class A or B Parks and Wildlife Code misdemeanor, a Parks and Wildlife Code state jail felony, or a Parks and Wildlife Code felony;]
[(4) Parks and Wildlife Code, §63.002; or]
[(5) the Lacey Act (16 U.S.C. §§3371-3378).]
[(h) The department may prohibit any person from acting as an agent of any permittee if the person has been convicted of, pleaded nolo contendere to, received deferred adjudication, or been assessed an administrative penalty for an offense listed in subsection (g) of this section.]
[(i) The department may refuse to issue a permit to any person the department has evidence is acting on behalf of or as a surrogate for another person who is prohibited by the provisions of this subsection from engaging in permitted activities.]
[(j) The department may refuse to issue or renew a permit to any person who is not in compliance with applicable reporting or recordkeeping requirements.]
[(k) An applicant for a permit or permit renewal may request a review of a decision of the department to refuse issuance of a permit or permit renewal (as applicable).]
[(l) An applicant seeking review of a decision of the department with respect to permit issuance must request the review within 10 working days of being notified by the department that the application for a permit or permit renewal has been denied.]
[(1) Within 10 working days of receiving a request for review under this section, the department shall establish a date and time for the review.]
[(2) The department shall conduct the review within 30 days of receipt of the request required by subsection (k) of this section, unless another date is established in writing by mutual agreement between the department and the requestor.]
[(3) The request for review shall be presented to a review panel. The review panel shall consist of three department managers with expertise in the subject of the permit, appointed or approved by the executive director, or designee.]
[(4) The decision of the review panel is final.]
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
The repeal is proposed under Parks and Wildlife Code, Chapter 43, Subchapter H, which authorizes the commission to adopt rules to implement that subchapter, including rules governing the circumstances required to qualify for a permit.
The proposed repeal affects Parks and Wildlife Code, Chapter 71.
§65.230. Permit Denial.
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
Work Session Item No. 11
Exhibit F
SUNSET ADVISORY COMMISSION REGULATORY RECOMMENDATIONS
AGENCY DECISION TO REFUSE LICENSE OR PERMIT ISSUANCE OR RENEWAL
CONFORMING CHANGES – CHAPTER 65. WILDLIFE
PROPOSAL PREAMBLE
1. Introduction
The Texas Parks and Wildlife Department proposes the repeal of 31 TAC §65.230 and amendments to §§65.154, concerning Issuance of Permit; Amendment and Renewal; 65.255, concerning Bobcat Dealer Permits; 65.264, concerning Permit Application Requirements; 65.329, concerning Permit Application; 65.363, concerning Nuisance Alligator Control; 65.376, concerning Possession of Live Fur-bearing Animals; and 57.384, concerning Refusal to Issue; Review of Agency Decision to Refuse Issuance.
Under Government Code, Chapter 325, the Sunset Advisory Commission is established to conduct reviews of state agencies to determine if a public need exists for the continuation of a state agency and to identify areas for improvement. Typically, state agencies undergo sunset review once every 12 years. The department underwent sunset review during the last regular session of the legislature and was reauthorized to continue in existence until September 1, 2033. As part of that process, the Sunset Advisory Commission adopted recommendations aimed to improve consistency and fairness for individuals and small business owners licensed by the department, including a directive to provide an option for an informal review for non-recreational license types that do not have an existing statutory review process and alignment of criminal and administrative enforcement processes to ensure fair, strong, and consistent enforcement.
In another proposed rulemaking published elsewhere in this edition of the Texas Register, the department would establish a uniform process for decisions to refuse issuance or renewal of non-recreational licenses and permits for which such processes are not prescribed by statute. As a result, conforming changes must be made in order to eliminate conflicts with current rules regarding those processes. The proposed amendments would eliminate the current rules governing agency decisions to refuse permit issuance or renewal for various permits and licenses and retitle affected sections where necessary.
2. Fiscal Note.
Robert Macdonald, Regulations Coordinator, 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 government as a result of administering the rules.
There will be no effect on persons required to comply with the rules as proposed.
3. Public Benefit/Cost Note.
Mr. Macdonald 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 the establishment of a uniform process for an informal review of a department decision to refuse to issue or renew all nonrecreational permits or licenses identified by the Sunset Advisory Commission for which a statutorily created review process is not provided.
(B) Under 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. 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, 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 the proposed rules have no effect on small businesses, micro-businesses, or rural communities. On this basis, the department has a determined that 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 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.
(F) 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 a fee;
(5) not create a new regulation;
(6) not expand an existing regulation;
(7) neither increase nor decrease the number of individuals subject to regulation; and
(8) not positively or adversely affect the state’s economy.
4. Request for Public Comment.
Comments on the proposed rule may be submitted to Robert Macdonald, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4775; email: robert.macdonald@tpwd.texas.gov or via the department website at www.tpwd.texas.gov.
5. Statutory Authority.
The amendment is proposed under Parks and Wildlife Code, §43.109, which authorizes the commission to make regulations governing management of wildlife or exotic animals by the use of aircraft, including procedures for permit applications and rules to require, limit, or prohibit any activity as necessary to implement the subchapter.
The proposed amendment affects Parks and Wildlife Code, Chapter 43.
6. Rule Text.
§65.154. Issuance of Permit; Amendment and Renewal.
(a) Upon the filing of a properly executed application and payment of the fee specified by §53.15 of this title (relating to Miscellaneous Fisheries and Wildlife Licenses and Permits), the department may issue or renew an AMP to an individual if:
(1) [the applicant has not failed to disclose any material information required, or has not made any false statement regarding any material fact in connection with the application;]
[(2)] the applicant will use the AMP only for the purpose of protecting or aiding in the administration or protection of land, water, wildlife, livestock, domesticated animals, human life, or crops; and
(2)[(3)] the AMP requested, in the judgment of the department, will aid in the management of wildlife and exotic animals and will not have a deleterious effect on indigenous species.
(b) – (c) (No change.)
[(d) The department may refuse to issue to or renew an AWMP for any person who has been finally convicted of, pleaded nolo contendere to, received deferred adjudication, or assessed an administrative penalty for a violation of:]
[(1) Parks and Wildlife Code, Chapter 43, Subchapter C, E, G, L, R, or R-1;]
[(2) a provision of the Parks and Wildlife Code that is not described by paragraph (1) of this subsection that is punishable as a Parks and Wildlife Code:]
[(A) Class A or B misdemeanor;]
[(B) state jail felony; or]
[(C) felony;]
[(3) Parks and Wildlife Code, §63.002;]
[(4) the Lacey Act (16 U.S.C. §§3371-3378); or]
[(5) 16 U.S.C. §742j-1 (commonly referred as the Airborne Hunting Act, or AHA).]
[(e) The department may refuse to issue an AMP to or renew an AMP for any person the department has evidence is acting on behalf of or as a surrogate for another person who is prohibited by the provisions of this subchapter from obtaining an AMP or engaging in AMP activities.]
[(f) An applicant for an AMP or AMP renewal may request a review of a decision of the department to refuse issuance of an AMP or AMP renewal (as applicable).]
[(1) An applicant seeking review of a decision of the department with respect to the issuance or renewal of an AMP must request the review within 10 working days of being notified by the department that the application has been denied.]
[(2) Within 10 working days of receiving a request for review under this section, the department shall establish a date and time for the review.]
[(3) The department shall conduct the review within 30 days of receipt of the request required by paragraph (2) of this subsection, unless another date is established in writing by mutual agreement between the department and the requestor.]
[(4) The request for review shall be presented to a review panel. The review panel shall consist of three department managers with expertise in the management of wildlife from aircraft, appointed or approved by the executive director, or designee.]
[(5) The decision of the review panel is final.]
(d)[(g)] No 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 this section may act or contract to act as a gunner for an AMP holder.
(e)[(h)] An AMP is not transferable or assignable.
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
The amendment is proposed under Parks and Wildlife Code, Chapter 67, which authorizes the commission to establish any limitations 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.
The proposed amendment affects Parks and Wildlife Code, Chapter 67.
§65.255. Bobcat Dealer Permits.
(a) – (d) (No change.)
[(e) The department reserves the right to refuse tag issuance to any dealer not in compliance with the provisions of this subchapter.]
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
The amendment is proposed under Parks and Wildlife Code, Chapter 64, which authorizes the commission to prescribe eligibility requirements and fees for and issue any falconry, raptor propagation, or nonresident trapping permit.
The proposed amendment affects Parks and Wildlife Code, Chapter 64.
§65.264. Permit Application Requirements.
(a) – (f) (No change.)
[(g) The department may refuse permit issuance or renewal to any person who within five years of applying for a permit issued under the authority of this subchapter has been finally convicted of or received deferred adjudication for:
[(1) a violation of Parks and Wildlife Code, Chapter 43, Subchapters C, E, L, or R or Chapter 49;
[(2) a violation of Parks and Wildlife Code that is a Class B misdemeanor, a Class A misdemeanor, or felony; or
[(3) a violation of Parks and Wildlife Code, §63.002.]
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
The amendment is proposed under Parks and Wildlife Code, Chapter 67, which authorizes the commission to establish any limitations 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.
The proposed amendment affects Parks and Wildlife Code, Chapter 67.
§65.329. Permit Application.
(a) – (b) (No change.)
[(c) The department may 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:]
[(1) Parks and Wildlife Code, Chapter 43, Subchapters C, E, L, or R;]
[(2) Parks and Wildlife Code, Chapter 67;]
[(3) a provision of the Parks and Wildlife Code that is punishable as a Class A or B Parks and Wildlife Code misdemeanor, a Parks and Wildlife Code state jail felony, or a Parks and Wildlife Code felony;]
[(4) Parks and Wildlife Code, §63.002; or]
[(5) the Lacey Act (16 U.S.C. §§3371-3378).]
[(d) The department may prohibit any person from acting as an agent of any permittee if the person has been convicted of, pleaded nolo contendere to, received deferred adjudication, or been assessed an administrative penalty for an offense listed in subsection (c) of this section.]
[(e) The department may refuse to issue a permit to any person the department has evidence is acting on behalf of or as a surrogate for another person who is prohibited by the provisions of this subsection from engaging in permitted activities.]
[(f) The department may refuse to issue or renew a permit to any person who is not in compliance with applicable reporting or recordkeeping requirements.]
[(g) An applicant for a permit or permit renewal may request a review of a decision of the department to refuse issuance of a permit or permit renewal (as applicable).]
[(h) An applicant seeking review of a decision of the department with respect to permit issuance must request the review within 10 working days of being notified by the department that the application for a permit or permit renewal has been denied.]
[(1) Within 10 working days of receiving a request for review under this section, the department shall establish a date and time for the review.]
[(2) The department shall conduct the review within 30 days of receipt of the request required by subsection (g) of this section, unless another date is established in writing by mutual agreement between the department and the requestor.]
[(3) The request for review shall be presented to a review panel. The review panel shall consist of three department managers with expertise in the subject of the permit, appointed or approved by the executive director, or designee.]
[(4) The decision of the review panel is final.]
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
The amendment is proposed under Parks and Wildlife Code, §65.003, which authorizes the commission to promulgate regulations to provide for permit application forms, fees, and procedures, and hearing procedures.
The proposed amendment affects Parks and Wildlife Code, Chapter 65.
§65.363. Nuisance Alligator Control.
(a) (No change.)
(b) Permit Application and Issuance.
(1) (No change.)
(2) In addition to the provisions of Chapter 56 of this title (relating to Agency Decision to Refuse License or Permit Issuance or Renewal Based on Personal Conduct) the[The] department may refuse to issue a permit to any person who, in the department’s determination, lacks the skill, experience, or aptitude to adequately perform the activities typically involved in nuisance alligator control.
(c) – (f) (No change.)
[(g) Denial of Permit Issuance. The department may refuse permit issuance to any person who has been convicted of, pleaded nolo contendere to, or received deferred adjudication for:]
[(1) a violation of Parks and Wildlife Code, Chapter 43, Subchapters C, E, L, or R, or Parks and Wildlife Code, Chapter 65;]
[(2) a violation of Parks and Wildlife Code that is a Class B misdemeanor, a Class A misdemeanor, or a felony;]
[(3) a violation of Parks and Wildlife Code, §63.002; or]
[(4) convicted, pleaded nolo contendere, received deferred adjudication or pre-trial diversion, or assessed a civil penalty for a violation of 16 U.S.C. §§3371 — 3378 (the Lacey Act).]
[(h) Review of Agency Decision. An applicant for a permit under this subchapter may request a review of a decision of the department to refuse issuance of a permit.]
[(1) An applicant seeking review of a decision of the department with respect to permit issuance under this subchapter shall first contact the department within 10 working days of being notified by the department of permit denial.]
[(2) The department shall schedule a review within 10 days of receipt of a request for a review. The department shall conduct the review and notify the applicant of the results within 45 working days of receiving a request for review.]
[(3) The request for review shall be presented to a review panel. The review panel shall consist of the following, or their designees:]
[(A) the Deputy Executive Director for Fisheries and Wildlife;]
[(B) the Director of the Wildlife Division; and]
[(C) the Deputy Division Director of the Wildlife Division.]
[(4) The decision of the review panel is the final department decision.]
(g)[(i)] Prohibited Acts. It is an offense for a permittee to:
(1) violate a provision of this subchapter;
(2) violate a condition of a permit issued under this subchapter; or
(3) treat or allow the treatment of an alligator in a cruel manner as defined in Penal Code, §42.092.
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
The amendment is proposed under Parks and Wildlife Code, §71.002, which authorizes the commission to promulgate regulations to provide for permit application forms, fees, and procedures, and hearing procedures.
The proposed amendment affects Parks and Wildlife Code, Chapter 71.
§65.376. Possession of Live Fur-bearing Animals.
(a) – (f) (No change.)
[(g) The department may 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:]
[(1) Parks and Wildlife Code, Chapter 43, Subchapters C, E, L, or R;]
[(2) Parks and Wildlife Code, Chapter 71;]
[(3) a provision of the Parks and Wildlife Code that is punishable as a Class A or B Parks and Wildlife Code misdemeanor, a Parks and Wildlife Code state jail felony, or a Parks and Wildlife Code felony;]
[(4) Parks and Wildlife Code, §63.002; or]
[(5) the Lacey Act (16 U.S.C. §§3371-3378).]
[(h) The department may prohibit any person from acting as an agent of any permittee if the person has been convicted of, pleaded nolo contendere to, received deferred adjudication, or been assessed an administrative penalty for an offense listed in subsection (g) of this section.]
[(i) The department may refuse to issue a permit to any person the department has evidence is acting on behalf of or as a surrogate for another person who is prohibited by the provisions of this subsection from engaging in permitted activities.]
[(j) The department may refuse to issue or renew a permit to any person who is not in compliance with applicable reporting or recordkeeping requirements.]
[(k) An applicant for a permit or permit renewal may request a review of a decision of the department to refuse issuance of a permit or permit renewal (as applicable).]
[(l) An applicant seeking review of a decision of the department with respect to permit issuance must request the review within 10 working days of being notified by the department that the application for a permit or permit renewal has been denied.]
[(1) Within 10 working days of receiving a request for review under this section, the department shall establish a date and time for the review.]
[(2) The department shall conduct the review within 30 days of receipt of the request required by subsection (k) of this section, unless another date is established in writing by mutual agreement between the department and the requestor.]
[(3) The request for review shall be presented to a review panel. The review panel shall consist of three department managers with expertise in the subject of the permit, appointed or approved by the executive director, or designee.]
[(4) The decision of the review panel is final.]
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
The repeal is proposed under Parks and Wildlife Code, Chapter 43, Subchapter H, which authorizes the commission to adopt rules to implement that subchapter, including rules governing the circumstances required to qualify for a permit.
SUNSET ADVISORY COMMISSION REGULATORY RECOMMENDATIONS
AGENCY DECISION TO REFUSE LICENSE OR PERMIT ISSUANCE OR RENEWAL
CONFORMING CHANGES – CHAPTER 69. RESOURCE PROTECTION
PROPOSAL PREAMBLE
1. Introduction
The Texas Parks and Wildlife Department proposes amendments to 31 TAC §69.303, concerning Application for Permit and Permit Issuance.
Under Government Code, Chapter 325, the Sunset Advisory Commission is established to conduct reviews of state agencies to determine if a public need exists for the continuation of a state agency and to identify areas for improvement. Typically, state agencies undergo sunset review once every 12 years. The department underwent sunset review during the last regular session of the legislature and was reauthorized to continue in existence until September 1, 2033. As part of that process, the Sunset Advisory Commission adopted recommendations aimed to improve consistency and fairness for individuals and small business owners licensed by the department, including a directive to provide an option for an informal review for non-recreational license types that do not have an existing statutory review process and alignment of criminal and administrative enforcement processes to ensure fair, strong, and consistent enforcement.
In another proposed rulemaking published elsewhere in this edition of the Texas Register, the department would establish a uniform process for decisions to refuse issuance or renewal of non-recreational licenses and permits for which such processes are not prescribed by statute. As a result, conforming changes must be made in order to eliminate conflicts with current rules regarding those processes. The proposed amendments would eliminate the current rules governing agency decisions to refuse permit issuance or renewal for various permits and licenses and retitle affected sections where necessary.
2. Fiscal Note.
Robert Macdonald, Regulations Coordinator, 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 government as a result of administering the rules.
There will be no effect on persons required to comply with the rules as proposed.
3. Public Benefit/Cost Note.
Mr. Macdonald 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 the establishment of a uniform process for an informal review of a department decision to refuse to issue or renew all nonrecreational permits or licenses identified by the Sunset Advisory Commission for which a statutorily created review process is not provided.
(B) Under 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. 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, 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 the proposed rules have no effect on small businesses, micro-businesses, or rural communities. On this basis, the department has a determined that 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 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.
(F) 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 a fee;
(5) not create a new regulation;
(6) not expand an existing regulation;
(7) neither increase nor decrease the number of individuals subject to regulation; and
(8) not positively or adversely affect the state’s economy.
4. Request for Public Comment.
Comments on the proposed rule may be submitted to Robert Macdonald, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4775; email: robert.macdonald@tpwd.texas.gov or via the department website at www.tpwd.texas.gov.
5. Statutory Authority.
The amendment is proposed under Parks and Wildlife Code, §43.022, which requires the commission to adopt rules to govern the collecting, holding, possession, propagation, release, display, or transport of protected wildlife for scientific research, educational display, zoological collection, or rehabilitation.
The proposed amendment affects Parks and Wildlife Code, Chapter 43.
6. Rule Text.
§69.303. Application for Permit and permit issuance.
(a) (No change.)
[(b) The department may 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:]
[(1) Parks and Wildlife Code, Chapter 43, Subchapters C, E, L, or R;]
[(2) a provision of the Parks and Wildlife Code that is punishable as a Class A or B Parks and Wildlife Code misdemeanor, a Parks and Wildlife Code state jail felony, or a Parks and Wildlife Code felony;]
[(3) Parks and Wildlife Code, §63.002; or]
[(4) the Lacey Act (16 U.S.C. §§3371-3378).]
[(c) The department may prohibit any person from acting as an agent of any permittee if the person has been convicted of, pleaded nolo contendere to, received deferred adjudication, or assessed an administrative penalty for an offense listed in subsection (b) of this section.]
[(d) The department may refuse to issue a permit to any person the department has evidence is acting on behalf of or as a surrogate for another person who is prohibited by the provisions of this section from engaging in permitted activities.]
[(e) The department may refuse to issue or renew a permit to any person who is not in compliance with applicable reporting or recordkeeping requirements.]
[(f) An applicant for a permit or permit renewal may request a review of a decision of the department to refuse issuance of a permit or permit renewal (as applicable).]
[(g) An applicant seeking review of a decision of the department with respect to permit issuance must request the review within 10 working days of being notified by the department that the application for a permit or permit renewal has been denied.]
[(1) Within 10 working days of receiving a request for review under this section, the department shall establish a date and time for the review.]
[(2) The department shall conduct the review within 30 days of receipt of the request required by subsection (f) of this section, unless another date is established in writing by mutual agreement between the department and the requestor.]
[(3) The request for review shall be presented to a review panel. The review panel shall consist of three department managers with expertise in the subject of the permit, appointed or approved by the executive director, or designee.]
[(4) The decision of the review panel is final.]
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
The proposed repeal affects Parks and Wildlife Code, Chapter 71.
§65.230. Permit Denial.
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
Work Session Item No. 13
Presenter: Dr. J. Hunter Reed
Briefing
Briefing - Chronic Wasting Disease (CWD) Sampling Strategy and Efforts from Free Range Deer and Managed Lands Deer Program (MLDP)
March 23, 2022
I. Executive Summary: Texas Parks and Wildlife Department (TPWD) staff will brief the Texas Parks and Wildlife Commission (Commission) on the Chronic Wasting Disease (CWD) sampling strategy employed across Texas. The briefing will include a brief overview of CWD epidemiology in Texas, the TPWD surveillance strategy, and challenges of sampling free-ranging populations.
II. Discussion: CWD is an emerging and insidious disease threat to free-ranging and captive populations of CWD susceptible species including, but not limited to, White-tailed Deer and Mule Deer. Since 2012 when CWD was first discovered in Texas, there has been a steady increase in the number of CWD positive animals detected in both captive and free-ranging settings. Captive deer populations are monitored through postmortem and antemortem surveillance completed by facility owners, while free-ranging populations are largely monitored through TPWD’s statewide CWD sampling program.
The strategy behind TPWD’s statewide sampling program is to increase CWD testing in parts of Texas where TPWD is most concerned for the spread of CWD in free-ranging populations. Areas that are close to CWD zones, states with confirmed cases of CWD, and/or epidemiologically-linked facilities would all likely contribute to a CWD testing increase. With increased testing, TPWD hopes to increase its detection probability as well as detect CWD at a lower prevalence. To date, TPWD staff alone have collected nearly 100,000 CWD samples in support of this sampling program.
TPWD staff will present the challenges of CWD testing in free-ranging populations and hold a discussion on methods for overcoming those challenges during the briefing.
Work Session Item No. 14
Presenter: Dana Lagarde
Briefing
Briefing - Recreation Grants Overview
March 23, 2022
I. Executive Summary: Texas Parks and Wildlife Department (TPWD) staff will brief the Texas Parks and Wildlife Commission on the Recreation Grants Branch. The briefing will include an overview of the programs administered by the branch.
II. Discussion: The Recreation Grants Branch is housed within the State Parks Division and supports the TPWD mission by administering federal and state grant funds to manage and conserve the natural and cultural resources of Texas and to provide hunting, fishing, and outdoor recreation opportunities for the use and enjoyment of present and future generations. This is accomplished by assisting TPWD with the application and management of relative federal grant funding and by providing competitive state and federal grant funding opportunities to eligible entities in Texas.
Grant funding administered by the Recreation Grants Branch is divided into five main programs. Each program includes one or more grant opportunity and/or funding source, each with its own standards and requirements for application, evaluation, and award. The five areas are:
- Boating Grants Program
- Community Outdoor Outreach Program Grants
- Local Park Grants Program
- Recreational Trails Grants Program
- Target Range Grants Program
Work Session Item No. 19
Presenter: Ted Hollingsworth
Work Session
Request for Pipeline Easement – Brazoria County
Approximately 2 Acres at the Justin Hurst Wildlife Management Area
Request Permission to Begin the Public Notice and Input Process
March 23, 2022
I. Executive Summary: Texas Parks and Wildlife Department (TPWD) staff has received a request from Phillips 66 for an easement adjacent to an existing pipeline corridor across a portion of the Justin Hurst Wildlife Management Area (WMA) for the installation of a 12-inch natural gas transmission pipeline.
II. Discussion: The Justin Hurst WMA consists of 14,734 acres of coastal prairies, bottomland hardwoods, and marshes, and it serves as significant habitat for a number of resident and migratory species, including waterfowl and wading birds. It is bordered on the north by the Village of Jones Creek, on the east by Port of Freeport lands, and on the south by the Gulf Intracoastal Waterway.
Phillips 66 wishes to deliver natural gas from their Clemens underground storage facility northwest of the Justin Hurst WMA to customers and potential customers in Freeport, east of the Justin Hurst WMA. The communities of Jones Creek, Clute, and Lake Jackson make a more direct route infeasible. The company holds a major pipeline easement across the Justin Hurst WMA which currently hosts more than a dozen pipelines. Reaching the Clemens facility from the existing corridor would require a spur pipeline route that would depart from the company’s existing easement. Moving from that easement into another existing corridor that crosses the recently acquired “Huntington Estate” unit of the Justin Hurst WMA is the route preferred by Phillips 66 and appears to be the route that would result in the least impact to the Justin Hurst WMA.
Texas Parks and Wildlife Department staff has met with Phillips 66 representatives to review route analyses and discuss ways for the project to comply with Texas Parks and Wildlife Code chapter 26, which states that the Texas Parks and Wildlife Commission may authorize the issuance of an easement if it finds there is no feasible and prudent alternative to the use or taking of TPWD land and that the project includes all reasonable planning to minimize harm to the land.
Attachments – 3
Work Session Item No. 19
Exhibit A
Location Map for the Justin Hurst Wildlife Management Area in Brazoria County
Work Session Item No. 19
Exhibit B
Vicinity Map for the Justin Hurst Wildlife Management Area (WMA)
60 Miles South of Houston
Work Session Item No. 19
Exhibit C
Map of Phillips 66’s Requested Easement Route Shown in Red
Justin Hurst Wildlife Management Area Outlined in White
Justin Hurst Huntington Unit Outlined in Orange
Work Session Item No. 20
Presenter: James Murphy
Executive Session Only
Litigation Update
March 23, 2022
I. Executive Summary: Attorneys for the Texas Parks and Wildlife Department (TPWD) will update and advise the Texas Parks and Wildlife Commission regarding pending or anticipated