PART 2. TEXAS PARKS AND WILDLIFE DEPARTMENT
SUBCHAPTER O. COMMERCIAL NONGAME PERMITS
31 TAC §§65.325, 65.327, 65.331
The Texas Parks and Wildlife Department proposes amendments to §§65.325, 65.327, and 65.331, concerning Commercial Nongame Permits.
In April of 2007, the Texas Parks and Wildlife Commission adopted a comprehensive revision of the department's rules governing the possession and sale of nongame wildlife, including the creation of a "prohibited list" of nongame species that cannot be possessed or used for commercial purposes. The rules took effect October 21, 2007.
The primary goal of the rules was to protect wild populations of nongame species on the prohibited list from commercial collection; however, the rules do allow a person to possess not more than six specimens of any species on the prohibited list, provided the specimens are not used for a commercial purpose.
The rules also acknowledged that the creation of the prohibited list would have the consequence of making it unlawful to possess certain species of nongame wildlife that had been lawfully possessed prior to the effective date of the rules. Therefore, the rules required those persons in recreational possession (personal use, as opposed to commercial use) of more than six specimens of species on the prohibited list to report those collections to the department by November 1, 2008. The department's intent in establishing this "grandfather" provision was to provide a window of time for the development of additional rules to address the possession, captive breeding and sale of species on the prohibited list.
The department does not wish to criminalize the possession of specimens on the prohibited list by persons who lawfully possessed those specimens prior to the effective date of the rules, provided the specimens are not used in a commercial activity. The department also does not see any reason to prohibit the commercial use of captive-bred specimens of species on the prohibited list, provided the breeding stock was lawfully acquired (i.e., acquired from a lawful out-of-state source). The proposed amendments to §§65.325, 65.327, and 65.331 are intended, collectively, to accomplish that goal.
The proposed amendment to §65.325, concerning Applicability, would eliminate subsection (c)(1), which established a deadline for commercial dealers to divest themselves of species on the prohibited list. The deadline has passed, making the provision superfluous.
The proposed amendment to §65.325 also alters the provisions of subsection (c)(2)(A) to extend the 'grandfather' provision for specimens held in recreational collections in numbers exceeding the possession limit established in §65.331(e) (the "prohibited list"). The proposed amendment is necessary to provide for continued lawful possession of nongame species that were lawfully possessed prior to October 21, 2007, while affording additional time for the persons possessing the specimens to contact the department and report the collections. Since the current rules became effective on October 21, 2007, there have been only a handful of persons who have complied with the reporting requirements for recreational collections affected by the subchapter. The department has no method to reliably estimate how many persons in the state may be in recreational possession of more than six specimens of any given species on the prohibited list. Anecdotal information and communications with persons knowledgeable with the pet trade suggest that there may be as many as 1,000 people with recreational collections consisting to some degree of species on the prohibited list. The department therefore has determined that it is necessary to extend the 'grandfather' clause in order to conduct more extensive outreach and awareness activities. Accordingly, the department proposes to extend the 'grandfather' clause for an additional two years.
The proposed amendment to §65.325 also clarifies that the exception of rabbits from the applicability of the subchapter affects only the genus Sylvilagus, which consists of species commonly referred to as cottontails. The department is concerned that confusion could occur, because the black-tailed jackrabbit (which is subject to the rules), despite its common name is a member of the genus Lepus, and thus is a hare, not a rabbit.
The proposed amendment to §65.327, concerning Permit Required, would alter subsection (b)(1) to clarify that the provisions of the rule apply to the export of nongame wildlife as well as to the import of nongame wildlife, and that the rules apply to the import or export of nongame wildlife for any purpose, including sale or resale. The proposed amendment also would clarify that rules authorize activity only with respect to lawfully obtained nongame wildlife. Current subsection (b)(1)(D)(iii) requires persons to report and keep records of each instance in which nongame wildlife is shipped out of state, which by definition constitutes export, although that term is not used. However, there are provisions in subparagraph (D) that obviously are applicable to importation but not exportation. By creating a separate subparagraph (E) to isolate the current provisions that apply specifically to export, the department intends to make the rules easier to navigate and understand. Similarly, current subsection (b)(1)(D) authorizes permit holders to import nongame wildlife into Texas "for sale or resale." The department does not intend for this provision to be interpreted as restricting the applicability of the rules to "sale" and "resale" of nongame wildlife, but intends for the rules to apply to any instance in which nongame wildlife is imported to or exported from the state.
The proposed amendment to §65.327 also would add new subsection (b)(1)(F) to explicitly authorize the holder of a nongame dealer permit to breed and sell all species of nongame wildlife, provided the brood stock is lawfully acquired and the person is in compliance with the documentation requirements of the subchapter.
The proposed amendment to §65.327 also would alter subsection (b)(2)(B) to allow the holder of a nongame dealer permit to purchase and sell all species of nongame wildlife, provided the person complies with the documentation requirements of the subchapter as they relate to species on the prohibited list.
The proposed amendment to §65.331, concerning Commercial Activity, would alter subsection (e) to allow for the commercial use of species listed in subsection (e), provided the specimens are lawfully obtained and the person is in compliance with all applicable reporting and recordkeeping requirements of the subchapter. The proposed amendment also would remove the cornsnake (Pantherophis guttata ), the house mouse, and the rough-footed mud turtle from the list of species that are prohibited from use in commercial activity. The cornsnake is not native to Texas. The house mouse is not wildlife and should not have been included on the list. The rough-footed mud turtle should not have been on the list because it is protected from take under the provisions of Chapter 65, Subchapter G, which regulates endangered and threatened species.
Matt Wagner, Wildlife Diversity Program Director, has determined that for each of the first five years that the amendments as proposed are in effect, there will be no fiscal implications to state or local government as a result of enforcement or administration of the amended rules.
Mr. Wagner also has determined that for each year of the first five years the amendments as proposed are in effect, the public benefit anticipated as a result of enforcing or administering the amended rules will be rules that offer the opportunity for persons to engage in the breeding and sale of all species of nongame wildlife while continuing to afford protection to wild populations.
There will be no adverse economic effect on persons required to comply with the amendments as proposed.
The department has determined that small or micro-businesses may be affected by the proposed amendments; however, the amendments as proposed will not result in direct adverse economic impacts on small businesses or micro-businesses, but may have a beneficial effect by allowing for the importation, propagation, and sale of species that are currently unlawful to possess for commercial purposes. The department cannot determine the number of entities affected by the amended rules that may qualify as small or micro-businesses; however, the proposed amendments would not add new reporting or recordkeeping requirements; require any new professional expertise, capital costs, or costs for modification of existing processes or procedures; lead to loss of sales or profits; change market competition; or increase taxes or fees.
The purpose of the proposed amendments is to create an opportunity for persons to engage in the breeding and sale of all species of nongame wildlife without weakening protections for wild populations and to maintain accurate lists of indigenous wildlife in rules governing indigenous wildlife.
Since the department has determined that the amendments as proposed will not result in direct adverse economic impact on small businesses and micro-businesses, the department therefore has not considered alternatives to reduce the direct adverse economic impact of the proposed amendments on small businesses and micro-businesses.
In view of the information currently available to the department, no reasonable alternative to the proposed amendments could be identified that achieve the objective of the proposed amendments and be as effective and less burdensome to small businesses or micro-businesses.
The department has not drafted a local employment impact statement under the Administrative Procedures Act, §2001.022, as the agency has determined that the amended rules will not impact local economies.
The department has determined that there will not be a taking of private real property, as defined by Texas Government Code, Chapter 2007, as a result of the proposed amendments.
Comments on the proposed amendments may be submitted to Nancy Gallacher, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4978 (e-mail: nancy.gallacher@tpwd.state.tx.us).
The amendments are proposed under the authority of Texas Parks and Wildlife Code, §67.004, which authorizes the commission to establish any limits on the taking, possession, propagation, transportation, importation, exportation, sale, or offering for sale of nongame fish or wildlife that the department considers necessary to manage the species; and §67.0041, which authorizes the department to issue permits for the taking, possession, propagation, transportation, sale, importation, or exportation of a nongame species of fish or wildlife if necessary to properly manage that species.
The proposed amendments affect Texas Parks and Wildlife Code, Chapter 67.
§65.325.Applicability.
(a) (No change.)
(b) Exceptions. This subchapter does not apply to the following nongame wildlife:
(1) - (3) (No change.)
(4) rabbits (genus Sylvilagus);
(5) - (7) (No change.)
(c) Transitional Provisions for Possession of Certain Nongame Wildlife.
[(1) The holder of a permit issued
under this subchapter who is in lawful possession of nongame wildlife
prior to the effective date of this section who would be in violation
of this subchapter after the effective date of this section by continuing
to possess the nongame wildlife for commercial activity must sell,
donate, or otherwise dispose of the nongame wildlife by May 1, 2008.]
[(2)] A person in lawful possession of nongame
wildlife listed in §65.331(e) of this title (relating to
Commercial Activity) prior to October 21, 2007 [the
effective date of this section who would be in violation after the
effective date of this section and] who possesses the nongame
wildlife for personal, noncommercial use may continue to possess the
nongame wildlife and any increase, provided:
(1) [(A)] the person contacts
the department by no later than November 1, 2010 [2008]
and reports the person's name and address, and the species and number
of the nongame wildlife in possession; and
(2) [(B)] the person does not
engage in any commercial activity involving the nongame wildlife possessed
under this section.
§65.327.Permit Required.
(a) (No change.)
(b) Permit Privileges and Restrictions.
(1) The holder of a valid nongame dealer permit may:
(A) (No change.)
(B) sell lawfully obtained nongame wildlife to anyone;
(C) (No change.)
(D) [may] import nongame wildlife into Texas
for any purpose, including sale or resale, or [
including] for purposes of export, provided the person:
(i) - (ii) (No change.)
(iii) completes and mails to the department a department-supplied
Notice of Import/Export within 24 hours of each instance of [
shipping such wildlife out-of-state or
] receiving such nongame wildlife from out-of-state; and
(iv) maintains all documentation required by this paragraph
for a period of two years following the importation of the nongame
wildlife. The documentation required by this paragraph includes the
dealer's copy of each Notice of Import/Export. All documentation shall
be provided at the request of any department employee acting within
the scope of official duties;[.]
(E) export lawfully obtained nongame wildlife from Texas for any reason, including sale or resale, provided the person:
(i) completes and mails to the department a department-supplied Notice of Import/Export within 24 hours of each instance of shipping such wildlife out-of-state; and
(ii) maintains the dealer's copy of each Notice of Import/Export for a period of two years following each instance of exportation of nongame wildlife. The documentation required by this paragraph shall be provided at the request of any department employee acting within the scope of official duties; and
(F) engage in captive breeding of all species of nongame wildlife.
(2) The holder of a valid nongame permit:
(A) (No change.)
(B) may purchase or acquire nongame wildlife [listed
in §65.331(d) of this title] from the holder of a valid
nongame dealer permit or lawful out-of-state source; but
(C) (No change.)
(3) - (6) (No change.)
(c) - (e) (No change.)
§65.331.Commercial Activity.
(a) - (d) (No change.)
(e) No person shall engage in commercial activity involving
any nongame species not listed in subsection (d) of this section,
except as provided in §65.327[(e)
] of this title (relating
to Permit Required) and subsection (b) of this section. This prohibition
on commercial activity includes, but is not limited to, the following species:
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.
Filed with the Office of the Secretary of State on June 30, 2008.
TRD-200803399
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Earliest possible date of adoption: August 10, 2008
For further information, please call: (512) 389-4775