Proposed Amendments to Rules Governing Permits for Aerial Management of Wildlife and Exotic Species

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PERMITS FOR AERIAL MANAGEMENT OF WILDLIFE AND EXOTIC SPECIES

PROPOSAL PREAMBLE

1. Introduction

        The Texas Parks and Wildlife Department (TPWD) proposes amendments to 31 TAC §65.151, concerning Definitions, and §65.152, concerning General Rules.

        The proposed amendments would clarify that it is lawful to use unmanned aerial vehicles (UAVs, or “drones”) at night to locate feral hogs for purposes of lethal control.

        Under federal law (16 U.S.C. §742j-1, commonly referred to as the Airborne Hunting Act, or AHA) it is unlawful to shoot or attempt to shoot or intentionally harass any bird, fish, or other animal from aircraft (including drones) except for certain specified reasons, including protection of wildlife, livestock, and human health except as may be provided by state law pursuant to federal authority. Parks and Wildlife Code, Chapter 43, Subchapter G, is the statutory authority for regulating airborne wildlife management in Texas; under Parks and Wildlife Code §43.109, the Parks and Wildlife Commission is authorized to promulgate regulations governing the management of wildlife by the use of aircraft.

            The recent advent and popularity of drones has resulted in a number of inquiries to the department regarding their use at night, particularly with respect to the lethal control of feral hogs. Feral hogs are an extremely destructive nuisance species, causing great damage to agricultural crops and wildlife habitats across the state, and the department vigorously encourages the public to control feral hog populations in order to protect native wildlife and their habitats. Current rules prohibit the take of wildlife or exotic animals (including members of the swine family, such as feral hogs) from aircraft at night (defined as the hours between one half-hour after sunset and one-half hour before sunrise). The department wishes to clarify that although wildlife and exotic animals may not be taken by means of drones at any time, it is lawful to use drones solely for purposes of locating feral hogs, including at night. The proposed rules also would clarify that any person who operates a drone pursuant to an aerial wildlife permit must possess the permit while doing so, and that any person who participates in the capture, take, shooting, or attempted capture, take, or shooting of feral hogs as a result of the use of a drone to locate feral hogs for purposes of eventual take or capture is a gunner for the purposes of the subchapter, and all reporting and recordkeeping requirements of the subchapter apply to such persons.

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 governments as a result of enforcing or administering the rules.

        There will be no fiscal implications for 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 the rules as proposed are in effect:

        (A) The public benefit anticipated as a result of enforcing or administering the rules as proposed will be regulatory clarity.

        (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 will not result in any direct economic costs to any small businesses, micro-businesses, or rural communities; therefore, the department has 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 any fee;

                         (5) not create a new regulation;

                         (6) not limit or repeal 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 Comments.

        Comments on the proposed rules may be submitted to Assistant Commander Stormy King, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 552-4627; email: stormy.king@tpwd.texas.gov or via the department website at www.tpwd.texas.gov.

5. Statutory Authority.

        The amendments are proposed under Parks and Wildlife Code, §43.109, which provides the commission with authority to make regulations governing the management of wildlife or exotic animals by the use of aircraft under this subchapter, including forms and procedures for permit applications; procedures for the management of wildlife or exotic animals by the use of aircraft; limitations on the time and the place for which a permit is valid; establishment of prohibited acts; rules to require, limit, or prohibit any activity as necessary to implement Parks and Wildlife Code, Chapter 43, Subchapter G.

        The proposed amendments affect Parks and Wildlife Code, Chapter 43, Subchapter G.

6. Rule Text.

        §65.151. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.

                 (1) – (5) (No change.)

                 (6) Gunner—

                         (A) A Landowner, Agent, or Subagent who captures, takes, shoots, or attempts to capture, take, or shoot wildlife or exotic animals from an aircraft; and

                         (B) any person who participates in the capture, take, shooting, or attempted capture, take, or shooting of feral hogs as a result of the use of a drone to locate feral hogs for purposes of eventual take or capture.

                 (7) – (12) (No change.)

                 (13) Unmanned Aerial Vehicle (UAV, or drone) — An aircraft that is remotely controlled or flown by an operator who is not physically present in the aircraft while it is flying.

        §65.152. General Rules.

                 (a) A person who holds an AMP is authorized to engage in the management of wildlife and exotic animals by the use of aircraft only on the tract(s) of land specified in the LOA. The AMP must be carried in an aircraft when the aircraft is engaged in activities authorized by the AMP, unless the aircraft is a UAV, in which case the AMP shall be in possession of the operator.

                 (a) – (d) (No change.)

                 (e) It is lawful for a pilot operating under a valid AMP or AMP holder to use a UAV at any time solely for the purpose of locating feral hogs; however, no person may take or attempt to take feral hogs from a UAV.

                 (f)[(e)] These rules do not exempt any person from the requirement for other licenses or permits required by statute or rule of the commission.

                 (g)[(f)] The department may waive the fee requirements of this subchapter for an employee of a governmental entity acting in the scope and course of official duties.

                 (h)[(g)] The department will not approve an LOA for the take of feral hogs on a tract of land where feral hogs have been released or liberated by or with the approval of the Landowner or Agent for the purpose of being hunted.

        This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s legal authority to adopt.

        Issued in Austin, Texas, on

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