Sunset Advisory Commission Recommendations - Proposed Uniform Regulations for License or Permit Issuance or Renewal

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 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 §§56.1-56.7, concerning Agency Decision to Refuse License or Permit Issuance or Renewal and Agency Decision to Suspend or Revoke Affected License or Permit. The proposed new rules would constitute new Chapter 56 and would establish a uniform process governing department decisions to refuse issuance or renewal of non-recreational licenses and permits for which such processes are not prescribed by statute and prescribe a similar process regarding agency decisions to suspend or revoke a license or permit affected by the proposed new subchapter.

        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 processes described in the rules are 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 §56.7 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 is the primary state agency responsible for managing, protecting, and conserving public wildlife and fisheries resources and is statutorily authorized or required to issue a wide variety of permits and licenses for many purposes, including, variously, the take, possession, use, propagation, importation, exportation, purchase, sale, etc., of those resources. As discussed elsewhere in this preamble, the department believes that unscrupulous persons and persons known to exhibit disregard for the law should not enjoy the privileges of exploitation of a public trust resource because their behavior is evidence that they cannot be expected to discharge the responsibilities, requirements, and expectations attendant to such privileges. One example and indication of unscrupulous character is the lack of fidelity to the truth with respect to providing information required by the department to effectively assess and determine a person’s fitness to be allowed to exploit a public trust resource. The department reasons that a person who is untruthful in furnishing information to the department, in addition to committing the criminal offense of falsification of a government record, will be similarly indisposed to faithfully follow and discharge the requirements of a permit or license to exploit a public trust. 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. Animal cruelty is the intentional or reckless disregard for animal welfare that results in unwarranted or unjustified pain or suffering and includes torture, poisoning, killing, causing serious injury, failure to provide necessary food, water, care, or shelter, abandonment, and other, similar, types of abuse. The department reasons that persons with a demonstrable history of either failure to care for animals in that person’s custody or the opportunistic infliction of pain and suffering on animals cannot be entrusted with a permit or license to possess live wildlife resources and should not be able to benefit from any other activity that involves the take and use of live 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. 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.

        The proposed new rule also would allow the department to refuse permit or license issuance or renewal for any statutory or regulatory provision not described in subsection (a)(1)-(6) that involves conduct or behavior regulated by the permit or license the applicant seeks to obtain or renew. The proposed new rule would set forth the criteria to be used in determining whether a criminal conviction directly relates to the duties and responsibilities required under a permit or license sought by an applicant, including the relationship of the crime to the purposes for which a license or permit listed in §56.5 of this title is required; the extent to which the issuance of a license or permit might offer an opportunity to engage in further criminal activity of the same type as that in which the person previously had been involved; the relationship of the crime to the ability or capacity required to perform the duties and discharge the responsibilities under the license or permit being sought; and any correlation between the elements of the crime and the duties and responsibilities of the license or permit being sought. 

        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. The department is the regulatory authority for a wide variety of programs and activities, including hunting, recreational fishing, commercial fishing, operation of the state parks system, water safety, boat and motor titling, environmental protection and much more. Most regulated entities and activities are subject to fees of various kinds, and criminal violations can result in fines. 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 is indebted to the department, including those who have failed to remit required payments to the department as 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 renewal. 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 extent and nature of the person’s past criminal activity with respect to the factors identified, the age of the person when the crime was committed, the amount of time that has elapsed since the person’s last criminal activity involving factors identified in this section, the conduct and work activity of the person before and after the criminal activity, evidence of the person’s rehabilitation or rehabilitative effort while incarcerated or after release; evidence of the person’s compliance with any conditions of community supervision, parole, or mandatory supervision, other evidence of the person’s fitness, including letters of recommendation; and any other adverse or mitigating factors, including 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.

        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 new rule 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 Revocation or Suspension of License or Permit, would prescribe the informal, internal process and criteria used by the department to revoke or suspend an affected permit or license. The proposed new section would utilize the same criteria enumerated in proposed new §56.2, concerning Refusal to Issue or Renew Permit of License, as the basis for pursuing revocation or suspension of an affected license or permit, and would employ the same process for making determinations. The department notes that the proposed new rule creates an informal internal administrative process that is in addition to but does not replace, negate, or supersede the provisions of Parks and Wildlife Code, Chapter 12, Subchapter F, which governs the revocation or suspension of all licenses or permits issued by the department.

        Proposed new §56.6, concerning Review of Agency Decision to Seek Revocation or Suspension of a License or Permit, would create a review process for department decisions concerning revocation or suspension of affected licenses or permits. The proposed new rule is necessary to create a process to allow persons whom the department has determined should have an affected license or permit revoked or suspended to have the decision reviewed by a panel of senior department managers. The proposed new rule is substantively identical to proposed new §56.4, concerning Review of Agency Decision to Deny Issuance or Renewal of License or Permit. The department notes that the proposed new rule creates an informal internal administrative process that is in addition to but does not replace, negate, or supersede the provisions of Parks and Wildlife Code, Chapter 12, Subchapter F, which governs the revocation or suspension of all licenses or permits issued by the department.

        Proposed new §56.7, 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 rules have 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 Government Code, §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, §12.001, which authorizes the department to collect and enforce the payment of all taxes, licenses, fines, and forfeitures due to the department; §12.508, which authorizes the department to refuse to issue or transfer an original or renewal license, permit, or tag if the applicant or transferee has been finally convicted of a violation under the Parks and Wildlife Code or rule adopted or a proclamation issued under the 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; §43.109, which authorizes the commission to make regulations governing management of wildlife or exotic animals by the use of aircraft; Chapter 43, Subchapter F, which authorizes the commission to adopt regulations necessary to administer that subchapter; Chapter 43, Subchapter H, which authorizes the commission to adopt rules to implement that subchapter; §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; Chapter 44, which provides for the applicability of all laws and regulations of the state to game animals held under a game breeder’s license; Chapter 49, 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; §66.007, which authorizes the department shall make rules governing the issuance and use of permits to possess harmful or potentially exotic harmful fish, shellfish, and aquatic plants; 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; §71.002, which authorizes the commission to promulgate regulations to provide for permit application forms, fees, and procedures, and hearing procedures; Chapter 77, which authorizes the commission to regulate the catching, possession, purchase, and sale of shrimp; and Chapter 78, which authorizes the commission to regulate the taking, possession, purchase, and sale of mussels and clams.

        The proposed new rules affect Parks and Wildlife Code, Chapters 12, 31, 43, 44, 49, 65, 67, 71, 77, and 78.

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 §56.7 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 subsection 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. In determining whether a criminal conviction directly relates to the duties and responsibilities required under a permit or license sought by an applicant, the department shall consider each of the following factors:

                                  (A)  the relationship of the crime to the purposes for which a license or permit listed in §56.7 of this title is required;

                                  (B)  the extent to which the issuance of a license or permit might offer an opportunity to engage in further criminal activity of the same type as that in which the person previously had been involved;

                                  (C)  the relationship of the crime to the ability or capacity required to perform the duties and discharge the responsibilities under the license or permit being sought; and

                                  (D)  any correlation between the elements of the crime and the duties and responsibilities of the license or permit being sought.

                 (b)  Administrative compliance. The department may refuse to issue or renew a permit or license listed in §56.7 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; or

                         (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 §56.7 of this title, as applicable, if the applicant is liable to the state for fees or payment of penalties imposed pursuant to the Parks and Wildlife Code or commission rule, including liability under Parks and Wildlife Code, §12.301.               

                 (d) Criteria for determination.

                         (1) If the department determines that a criminal conviction directly relates to the duties and responsibilities required under a permit or license, the department shall consider the following in determining whether to take an action authorized under this subchapter:

                                  (A)  the extent and nature of the person’s past criminal activity with respect to the factors identified in this section;

                                  (B)  the age of the person when the crime was committed;

                                  (C)  the amount of time that has elapsed since the person’s last criminal activity involving factors identified in this section;

                                  (D)  the conduct and work activity of the person before and after the criminal activity;

                                  (E)  evidence of the person’s rehabilitation or rehabilitative effort while incarcerated or after release;

                                  (F)  evidence of the person’s compliance with any conditions of community supervision, parole, or mandatory supervision;

                                  (G)  other evidence of the person’s fitness, including letters of recommendation; and

                                  (H) other adverse or mitigating factors, including but not limited to:               

                                          (i)  the number of final convictions or administrative penalties;

                                          (ii)  the seriousness of the conduct on which the final conviction or administrative penalty is based;

                                          (iii)  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) of this section;

                                          (iv)  the length of time between the most recent final conviction or administrative penalty and the permit application;

                                          (v)  whether the final conviction, administrative penalty, or other offense or violation was the result of negligence or intentional conduct;

                                          (vi)  whether the final conviction or administrative penalty resulted from conduct committed or omitted by the applicant, an agent of the applicant, or both;

                                          (vii)  the accuracy of the permit history information provided by the applicant;

                                          (viii)  for a renewal, whether the applicant agreed to any special provisions recommended by the department as conditions to the expiring permit.

                                  (2) A determination under this section is not permanent and the department shall consider the factors listed in 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 submit a written request for 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 working 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 license or 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. Revocation or Suspension of Licenses of Affected License or Permit.

                 (a) Criminal conduct. The department may suspend or revoke a license or permit issued 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 subsection 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. In determining whether a criminal conviction directly relates to the duties and responsibilities required under a permit or license, the department shall consider each of the following factors:

                                  (A)  the relationship of the crime to the purposes for which a license or permit listed in §56.7 of this title (Relating to Permits and Licenses Affected) is required;

                                  (B)  the extent to which continued licensure or permit privileges might offer an opportunity to engage in further criminal activity of the same type as that in which the person previously had been involved;

                                  (C)  the relationship of the crime to the ability or capacity required to perform the duties and discharge the responsibilities under the license or permit; and

                                  (D)  any correlation between the elements of the crime and the duties and responsibilities of the license or permit.

                 (b)  Administrative compliance. The department may suspend or revoke a permit or license listed in §56.7 of this title if the licensee or permittee made a false or misleading statement in connection with the permittee’s or licensee’s original or renewal application, either in the formal application itself or in any other written instrument relating to the application submitted to the commission or its officers or employees.

                 (c) Outstanding liability to the department. The department may suspend or revoke a permit or license listed in §56.7 of this title, as applicable, if the applicant is liable to the state for fees or payment of penalties imposed pursuant to the Parks and Wildlife Code or commission rule, including liability under Parks and Wildlife Code, §12.301.           

                 (d) Criteria for determination.

                         (1) If the department determines that a criminal conviction directly relates to the duties and responsibilities required under a permit or license, the department shall consider the following in determining whether to take an action authorized under this section:

                                  (A)  the extent and nature of the person’s past criminal activity with respect to the factors identified in this section;

                                  (B)  the age of the person when the crime was committed;

                                  (C)  the amount of time that has elapsed since the person’s last criminal activity involving factors identified in this section;

                                  (D)  the conduct and work activity of the person before and after the criminal activity;

                                  (E)  evidence of the person’s rehabilitation or rehabilitative effort while incarcerated or after release;

                                  (F)  evidence of the person’s compliance with any conditions of community supervision, parole, or mandatory supervision;

                                  (G)  other evidence of the person’s fitness, including letters of recommendation; and

                                  (H) other adverse or mitigating factors, including but not limited to:               

                                          (i)  the number of final convictions or administrative penalties;

                                          (ii)  the seriousness of the conduct on which the final conviction or administrative penalty is based;

                                          (iii)  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) of this section;

                                          (iv)  the length of time between the most recent final conviction or administrative penalty and the permit application;

                                          (v)  whether the final conviction, administrative penalty, or other offense or violation was the result of negligence or intentional conduct;

                                          (vi)  whether the final conviction or administrative penalty resulted from conduct committed or omitted by the applicant, an agent of the applicant, or both;

                                          (vii)  the accuracy of the permit history information provided by the applicant;

                                          (viii)  for a renewal, whether the applicant agreed to any special provisions recommended by the department as conditions to the expiring permit.

                                  (2) A determination under this section is not permanent and the department shall consider the factors listed in this subsection in subsequent determinations.

          §56.6. Review of Agency Decision to Seek Revocation or Suspension of a License or Permit.

                 (a) A licensee or permittee may request a review of a preliminary decision of the department to seek revocation or suspension of a license or permit.

                         (1) An applicant seeking review of a preliminary decision of the department with respect to the revocation or suspension of a license or permit must submit a written request for the review within 10 working days of being notified by the department of a preliminary decision to revoke or suspend a license or permit.

                         (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 working 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 seek suspension or revocation of the license or permit shall not be a member of the review panel.

                         (5) A decision of the review panel to not seek revocation or suspension of a permit or license is final. A decision of the review panel to seek revocation or suspension of a permit or license is subject to the opportunity for a hearing provided in Parks and Wildlife Code §12.502.

                 (b) In conducting a review of a decision by the department to seek revocation or suspension of a permit or license, the department shall consider:

                         (1) any applicable factors listed under §56.5(d) of this title (relating to Revocation or Suspension of Licenses of 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.

                 (c) The department may combine the notice of the department’s preliminary decision to seek revocation or suspension of a license or permit with the notice of an opportunity for a hearing provided in Parks and Wildlife Code §12.502.

        §56.7. 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

SUNSET 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 525, the Sunset Advisory Commission is established to conduct reviews of state agencies to determine if there is a continuing need for the agency exist 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 the next sunset review in 2034. 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 repeal may be submitted to Allison Winney, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-8560; email: allison.winney@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

SUNSET 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 525, the Sunset Advisory Commission is established to conduct reviews of state agencies to determine if there is a continuing need for the agency exist 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 the next sunset review in 2034. 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 rules may be submitted to Allison Winney, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-8560; email: allison.winney@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

SUNSET 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 525, the Sunset Advisory Commission is established to conduct reviews of state agencies to determine if there is a continuing need for the agency exist 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 the next sunset review in 2034. 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 rules may be submitted to Allison Winney, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-8560; email: allison.winney@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

SUNSET 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 amendments to 31 TAC §§65.154, concerning Issuance of Permit; Amendment and Renewal; 65.255 and 65.256, 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 525, the Sunset Advisory Commission is established to conduct reviews of state agencies to determine if there is a continuing need for the agency exist 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 the next sunset review in 2034. 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 department notes that the proposed amendment to §65.256, concerning Penalties, corrects an inaccurate internal reference with respect to violations. The penalties for violation of the subchapter are prescribed by statute and the rule text is simply intended to recapitulate that fact; however the statement in current rule is inaccurate and should reflect the fact that violations of the subchapter, not the subsection, are punishable as provided in Parks and Wildlife Code.

        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 compliance with the recommendations of the Texas Sunset Commission.

                 (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 rules may be submitted to Allison Winney, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-8560; email: allison.winney@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.]

        §65.256. The penalties for violations of this subchapter[subsection] shall be as prescribed in Parks and Wildlife Code, Chapter 67.

        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

SUNSET 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 525, the Sunset Advisory Commission is established to conduct reviews of state agencies to determine if there is a continuing need for the agency exist 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 the next sunset review in 2034. 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 rules may be submitted to Allison Winney, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-8560; email: allison.winney@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

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