Part 2. TEXAS PARKS AND WILDLIFE DEPARTMENT
Subchapter A. FEES
Division 1. LICENSE, PERMIT, AND BOAT AND MOTOR FEES
The Texas Parks and Wildlife Commission adopts an amendment to §53.17, concerning Miscellaneous Fees, without changes to the proposed text as published in the December 21, 2007, issue of the Texas Register (32 TexReg 9543).
Section 41 of House Bill 12, enacted by the 80th Texas Legislature, amended the Texas Parks and Wildlife Code by adding new Subchapter V to Chapter 43. The provisions of House Bill 12 require the commission by rule to establish permits to allow the possession or transport of live nonindigenous venomous snakes and five named species of constrictors for commercial and recreational purposes, and authorize the commission to adopt rules to implement the new subchapter, including rules governing fees.
The amendment establishes a fee of $20 for a recreational exotic snake permit and a fee of $60 for a commercial exotic snake permit. The fees are intended to recover the cost to the department of administering and enforcing the controlled exotic snake permit program.
A separate notice of adoption published elsewhere in this issue of the Texas Register establishes the recreational exotic snake permit and the commercial exotic snake permit and sets forth the requirements for possession, use, and display of the permits.
The amendment will function by establishing a fee of $20 for a recreational exotic snake permit and a fee of $60 for a commercial exotic snake permit.
The department received two comments opposing adoption of the proposed amendment. One of the commenters stated a specific rationale or reasoning for opposing adoption. The commenter stated that the fees should be higher, high enough to discourage people from owning dangerous snakes. The department disagrees with the comment and responds that House Bill 12 requires the department to establish permits for the recreational and commercial possession of controlled exotic snakes, but does not direct the department to discourage the possession of such snakes. No changes were made as a result of the comment.
The department received two comments supporting adoption of the proposed amendment.
The Texas Wildlife Association commented in support of adoption of the proposed amendment
The amendment is adopted under the provisions of House Bill 12, §41, enacted by the 80th Texas Legislature, which added new Subchapter V to Parks and Wildlife Code, Chapter 43, authorizing the commission to adopt rules to implement the subchapter, including rules governing the possession or transport of a snake covered by this subchapter; permit application forms, fees, and procedures; the release of snakes; reports that the department may require a permit holder to submit to the department; and other matters the commission considers necessary.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on March 3, 2008.
TRD-200801279
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Effective date: March 23, 2008
Proposal publication date: December 21, 2007
For further information, please call: (512) 389-4775
Subchapter J. CONTROLLED EXOTIC SNAKES
The Texas Parks and Wildlife Commission adopts new §§55.651 - 55.657, concerning Controlled Exotic Snakes. Section 55.652 and §55.657 are adopted with changes to the proposed text as published in the December 21, 2007, issue of the Texas Register (32 TexReg 9543). Section 55.651 and §§55.653 - 55.656 are adopted without change and will not be republished.
The change to §55.652, concerning Permit Required, adds new subsections (c) and (d) to allow common carriers to use a bill of lading as a temporary permit when transporting controlled exotic snakes to or through Texas. The change is necessary because the department does not intend for the rules to require that a permit be obtained for incidental possession by commercial carriers.
The change to §55.657, concerning Violations and Penalties, adds a new subsection (c) to clarify that the provisions of Parks and Wildlife Code, Chapter 43, Subchapter V, and the new rules may be enforced by any Texas peace officer.
Section 41 of House Bill 12, enacted by the 80th Texas Legislature, amended the Texas Parks and Wildlife Code by adding new Subchapter V to Chapter 43. The provisions of House Bill 12 require the commission by rule to establish permits to govern the possession or transport of live non-indigenous venomous snakes and five named species of constrictors for commercial and recreational purposes.
New §55.651, concerning Definitions, establishes the meanings of various words and terms used in the subchapter.
New §55.651(1) creates a definition for "commercial possession." House Bill 12 requires the department to establish both recreational and commercial permits. The rules prohibit the sale of a controlled exotic snake by any person other than the holder of a commercial controlled exotic snake permit. By defining "commercial possession" as "the possession of a controlled exotic snake for a commercial purpose," the rules can be enforced based on a person's intent to sell as well as on a consummated sale.
New §55.651(2) creates a definition for "controlled exotic snake." Although the snakes affected by the rules are specifically identified by statute, it is awkward to refer to "venomous non-indigenous snakes and five species of constrictors" throughout the rules. Therefore, the department has created a collective term, "controlled exotic snake," for the sake of convenience. The definition includes all hybrids of the listed species.
New §55.651(3) defines "possession" as "actual care, custody, or control," which is taken from the definition provided by Texas Penal Code, §1.07. The definition is necessary to establish an unambiguous term for purposes of compliance and enforcement.
New §55.651(4) defines "recreational possession" as possession for any purpose other than sale. House Bill 12 requires the department to establish both recreational and commercial permits. The rules, therefore, prohibit the sale of a controlled exotic snake by any person other than the holder of a commercial controlled exotic snake permit. Thus, any purpose or intent other than sale is considered to be a recreational purpose.
New §55.651(5) defines "sale" as the "transfer of ownership or the right of possession or the offer to transfer ownership or the right of possession of a controlled exotic snake to a person for a monetary consideration." A precise definition for "sale" is necessary to unambiguously identify the characteristics of an activity (sale) for which a specific permit is required.
New §55.652, concerning Permit Required, requires a person who possesses a controlled exotic snake to possess a recreational controlled exotic snake permit; requires a person who sells a controlled exotic snake to possess a commercial controlled exotic snake permit; clarifies that possession of a permit does not relieve any person from the obligation to comply with other applicable federal, state, or local law; and cites the statutory list of persons exempted from the rules. House Bill 12 required the department to create both a commercial and a recreational permit; however, there is no statutory guidance as to the specific activities that constitute commercial or recreational use; thus, those activities must be established by rule. The new section is necessary to describe and identify the activities for which a commercial controlled exotic snake permit is required.
New §55.653, concerning Permit Issuance and Period of Validity, requires the payment of a fee for the issuance of a controlled exotic snake permit, establishes a one-year period of validity for each type of permit, provides for a receipt or bill of sale to function as a temporary recreational controlled exotic snake permit for a period of 21 days from the date indicated on the receipt or bill of sale, and includes the statutory provision that a person convicted of a violation of the subchapter may not obtain a permit before the fifth anniversary of the date of the conviction. Since the department must recoup the expense of administering the program, a fee is necessary and must be established by rule. A separate notice of adoption published elsewhere in this issue of the Texas Register would implement the fees for the recreational exotic snake permit and the commercial exotic snake permit. A one-year period of validity was selected because most permits and licenses sold or issued by the department are one-year permits synchronized with the state fiscal year, which allows internal accounting and auditing processes to accurately capture license and permit data on an annualized basis. The provision for the use of a receipt or bill of sale as a temporary recreational controlled exotic snake permit is necessary because the department does not wish to inconvenience the public by requiring the possession of a department-issued permit prior to the purchase of a controlled exotic snake for recreational purposes. Allowing the use of a bill of sale or receipt as a temporary recreational controlled exotic snake permit will allow people to legally possess a controlled exotic snake for recreational purposes for a limited period of time until it is convenient to purchase a department-issued permit.
New §55.654, concerning Possession of Commercial Permit, establishes the requirements for the possession and display of a commercial controlled exotic snake permit. New §55.654(a) requires a commercial controlled exotic snake permit to be purchased for each permanent place of business where controlled exotic snakes are bought, sold, or possessed for sale. The new subsection is necessary because the department by policy has always issued permits to named individuals to facilitate enforcement. The department understands that a single company may operate a business in several locations and that requiring each employee to possess a permit would be burdensome. Therefore, the department reasons that requiring a permit for each place of business would provide a method for easily determining if activities at a given location are lawful without imposing an unreasonable burden on businesses.
New §55.654(b) authorizes an employee of a commercial controlled exotic snake permit holder to buy and sell controlled exotic snakes under the authority of that permit only at a permanent place of business operated by the permittee, provided that the employer's permit or a legible photocopy of the permit is maintained at the place of business during all activities governed by this subchapter. The provision is necessary to allow an employee without a permit to engage in regulated activities at a named location, thus allowing businesses to avoid the expense of having to purchase a commercial controlled exotic snake permit for every employee who engages in the sale of controlled exotic snake as a work duty.
New §55.654(c) allows a commercial controlled exotic snake permit holder to buy and sell controlled exotic snakes at a place other than a permanent place of business, provided the person also possesses on their person the original or a legible photocopy of a valid commercial controlled exotic snake permit. The new subsection is necessary to allow for a permit holder to engage in buying and selling on a mobile basis.
New §55.655, concerning Recordkeeping, requires the holder of a commercial controlled exotic snake permit to maintain a daily record of all purchases, sales, and transfers of controlled exotic snakes. The daily record consists of the name, address, and, if applicable, permit number of all persons from whom controlled exotic snakes are obtained or to whom controlled exotic snakes are sold. The permittee also is required to retain such records for a period of two years and to make them available at the request of any department employee acting within the scope of official duties. The two-year record retention period was selected because that is the statute of limitations for a Class C misdemeanor, which is the statutory penalty for violations of the subchapter. The new section is necessary to enable the department to track the purchase and sales activity of persons in the event that an investigation of a commercial controlled exotic snake permit holder is necessary.
New §55.656, concerning Inspection; Seizure, reiterates the provisions of House Bill 12 that establish the department's inspection authority with respect to enforcing the subchapter and the provisions applicable to the seizure and removal of unlawfully possessed controlled exotic snakes. The provisions are repeated verbatim from Parks and Wildlife Code, §43.852 - 43.854, as added by House Bill 12. Subsection (a) provides that an authorized department employee may inspect at any time and without a warrant a permit or any records required by this subchapter. Subsection (b) authorizes the department to arrange for the seizure and removal of a controlled exotic snake from a person who possesses the snake without the required permit. The person is responsible for any costs incurred by the department in the seizure, removal, and disposition of the snake. The subsection also stipulates that no department employee is required to handle, remove, or dispose of the snake and authorizes the department to contract with a person who has knowledge of or expertise in the handling of a snake covered by this subchapter to assist the department in the handling, removal, and disposition of the snake.
New §55.657, concerning Violations and Penalties, adopts the statutory language regarding violations for the release of a controlled exotic snake, prescribes the penalty for a violation of the subchapter, and creates a defense to prosecution. Under the terms of House Bill 12, a violation of Parks and Wildlife Code, Chapter 43, Subchapter V, or a rule adopted by the commission under authority of Chapter 43, Subchapter V, is a Class C misdemeanor, except for the release of a controlled exotic snake, which is a Class A misdemeanor. The new section also provides that it is a defense to prosecution that a person charged with being unable to present an appropriate permit produces in court an appropriate permit issued to the person and valid at the time the offense was committed. The rule is necessary because it is conceivable that there could be an instance in which a person who is licensed to possess a controlled exotic snake might not be in physical possession of the permit.
The department received 26 comments opposing the adoption of the proposed rules. Of those comments, 25 offered a specific reason or rationale for opposing adoption. Those comments, accompanied by the department's response to each, are as follows.
One commenter opposed adoption of the rules and stated that the rules were pointless. The agency disagrees with the comment and responds that House Bill 12 required the department to establish rules regarding the permits addressed in the rules. The point of the rules is to regulate persons who possess or sell controlled exotic snakes. No changes were made as a result of the comment.
One commenter opposed adoption of the rules and stated that the department did not comply with the legislative intent of House Bill 12 because the rules apply to venomous snakes that are not indigenous to Texas, while the statute applies to venomous snakes not indigenous to United States. The department disagrees with the comment and responds that, although House Bill 12 does not define the term "indigenous," it does delegate rulemaking authority to the commission, including authority to adopt rules on "matters the commission considers necessary." The rules as adopted define a venomous snake to be non-indigenous if it is not native to the state of Texas. No changes were made as a result of the comment.
One commenter opposed adoption of the rules and stated that the rules were an improper implementation of House Bill 12 because they were adopted "in violation of §2001.001." The commenter cited the text of Government Code, §2001.001, and stated that House Bill 12 was unethical because House Bill 1309, which had contained similar statutory language, had died in committee and much of the statutory language was added to House Bill 12. Because of that, in the commenter's view, the rules violated "§2001.001." The department disagrees with the comment and responds that, although House Bill 1309 was not passed by the 80th Texas Legislature, House Bill 12 was passed. House Bill 12 required and authorized the commission to adopt rules regarding controlled exotic snakes. In addition, Government Code, Chapter 2001, applies only to rulemaking activities by state agencies and does not apply to the legislative process. The department also responds that the rules were proposed and adopted in full compliance with all applicable provisions of state law. No changes were made as a result of the comment.
One commenter opposed adoption of the rules and stated that there is no reason to change something that is working, that the snakes affected by the rules are not bad and that more people are killed by dogs each year than by reptiles. The department disagrees with the comment and responds that House Bill 12 directs the department to adopt rules to require persons who possess or sell certain snakes to obtain a permit to do so. The requirements of House Bill 12 cannot be altered or eliminated by the commission. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the department should gather more information. The commenter stated that the rules will result in an enforcement nightmare and will cause ordinary people to become criminals. The department disagrees with the comment and responds that House Bill 12 directs the department to adopt rules by April 1, 2008 to require persons who possess or sell certain snakes to obtain a permit to do so, which the department has done. The department notes that House Bill 12, §54, requires the formation of an interim legislative committee to study the issue and report its findings to the legislature and the governor by November 1, 2008. The department also notes that there will be a significant effort to inform the public and all persons who may be involved in buying and selling controlled exotic snakes of the existence of the rules. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the passage of House Bill 12 was unethical; that the cost of the permits will not provide enough public benefit to warrant the time and cost; and that people affected by the proposed rules will go underground to avoid having to purchase a permit. The department disagrees with the comment and responds that House Bill 12, as enacted by the 80th Texas Legislature, requires and authorizes the commission to establish rules regarding controlled exotic snakes. The department also responds that the department has attempted to establish fees sufficient to recoup the cost of administering and enforcing the rules, and will adjust the fees if necessary. The department further responds that persons who choose not to purchase a permit will be in violation of the law and at risk of citation, prosecution, and punishment. No changes were made as a result of the comment.
One commenter opposed adoption of the rules and stated that there should be an additional class of permit for persons who own multiple snakes but who are not engaged in commercial activities. The department disagrees with the comment and responds that an additional class of permit is unnecessary. A person who has purchased a recreational controlled exotic snake permit may purchase or possess as many controlled exotic snakes as the person wishes, provided the person does not engage in a commercial activity. No changes were made as a result of the comment.
One commenter opposed adoption of the rules and stated that it was just another way for the government to make money off of people who enjoy snakes, that people pay a lot of money for snakes and will not release them, that dogs kill more people than snakes do, and that the rules are discriminatory and un-American. The department disagrees with the comment and responds that the rules as adopted include those fees considered necessary only for the department to recoup the costs of discharging the directives of House Bill 12, which requires persons who possess or sell certain snakes to obtain a permit to do so from the department. The department also responds that the requirements of House Bill 12, including the creation of an offense for the release of a controlled exotic snake, cannot be altered or eliminated by the commission. The department further responds that the rules do not unlawfully discriminate against any group or individual. No changes were made as a result of the comments.
Two commenters opposed adoption of the rules and stated that the rules were one more step towards the loss of freedom. The department disagrees with the comment and responds that nothing in the rules prohibits the possession, purchase, or sale of controlled exotic snakes, so long as the person in possession has obtained the appropriate permit. No changes were made as a result of the comments.
One commenter opposed adoption of the rules and stated that it was just one more way for the state to take money from the public, that the state will seize snakes and "give them to their friends," and that Texas would lose significant revenues generated by reptile exhibitions. The department disagrees with the comment and responds that the rules as adopted include those fees considered necessary only for the department to recoup the costs of discharging the directives of House Bill 12; that the department will follow the law in disposing of any snakes seized by the department; and that, since the rules do not prohibit the possession, sale, or purchase of controlled exotic snakes (so long as the person in possession has obtained the appropriate permit), there should not be any resultant economic impacts from the rules' effect on reptile exhibitions, other than the cost of the permit. No changes were made as a result of the comment.
One commenter opposed adoption of the rules and stated that the government was going to a lot of time and effort to outlaw pets and that cornsnakes did not harm people or the environment. The department disagrees with the comment and responds that the rules as adopted do not prohibit any person from possessing a controlled exotic snake and that the rules do not apply to cornsnakes, which are non-venomous. No changes were made as a result of the comment.
One commenter opposed adoption of the rules and stated that the recordkeeping requirements were unnecessary and that permits should be valid for five years instead of one. The department disagrees with the comment and responds that the recordkeeping requirements are necessary for the department to ensure compliance and to gather data to present to the interim legislative committee that is studying the issue. The department chose a one-year period of validity for permits because many of the snakes affected by the rules are owned by children and adolescents who would be unable to afford the fee for a five-year permit.
One commenter opposed adoption and stated that there were more important issues to worry about. The department disagrees with the comment and responds that the rules were required and authorized by House Bill 12. No changes were made as a result of the comment.
One commenter opposed adoption and stated that no one should have to have a permit to own a snake. The department disagrees with the comment and responds that, under the provisions of House Bill 12, a person who possesses a controlled exotic snake must have a permit issued by the department. No changes were made as a result of the comment.
One commenter opposed adoption of the rules and stated that the rules will not, as the department stated in the proposal preamble, result in the enhanced health and safety of the public; is a waste of time and money; and should not be administered by the department because the regulated animals are non-indigenous. The department disagrees with the comment and responds that the legislative intent of House Bill 12, §41, is to provide for greater public health and safety. The department reiterated that intent in the proposed rulemaking. The department also responds that the rules are required by statute and that the commission has no authority to delay or stop their implementation. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the law was based upon extreme prejudice toward reptile owners, enthusiasts, breeders, retailers, and the animals themselves. The department disagrees with the comment and responds that the statute, as enacted by the legislature, requires the department to adopt rules. No changes were made as a result of the comment.
One commenter opposed adoption of the rules and stated that husbandry of venomous snakes is relatively safe. The commenter also stated that House Bill 12 restricts liberties, creates bureaucracy and provides no benefit to the public health. The department disagrees with the comment and responds that House Bill 12 directs the department to create and administer a permit program regarding controlled exotic snakes. The rules accomplish that directive. No changes were made as a result of the comment.
One commenter opposed adoption of the rules and stated that the definition of "commercial" is more restrictive than it appears to be. The commenter stated that captive-breeding activities or the simple possession of a breeding pair of snakes could be viewed as a commercial activity, and that captive breeding operations would have to purchase a commercial controlled exotic snake permit even if breeding operations were not fruitful. The department disagrees with the comment and responds that the definition of "commercial possession" is clear and unambiguous; a person who engages in the sale or offering for sale of controlled exotic snakes is engaged in commercial possession. All other uses are recreational purposes. No changes were made as a result of the comment.
One commenter opposed adoption of the rules and stated that as written, they could be used by the department to revoke permits for up to five years on technical violations of permit and recordkeeping requirements. The department disagrees with the comment. The provision in question is a statutory provision that cannot be modified or eliminated by the commission. Nevertheless, the recordkeeping requirements of the new rules are not believed to be onerous or difficult to comply with; however, commercial permit holders are required to maintain accurate records; and the department encourages all persons to comply with the rules. No changes were made as a result of the comment.
One commenter opposed adoption of the rules and stated that liberties will suffer if permits are made prohibitively difficult to obtain. The department disagrees with the comment and responds that permits can be purchased for an affordable fee wherever hunting and fishing licenses are sold. No changes were made as a result of the comment.
One commenter opposed adoption of the rules and stated that there was no provision in the rules for a recreational controlled exotic snake permit holder to sell an animal at a later date without obtaining a commercial permit. The department acknowledges that a person who sells a controlled exotic snake must have a commercial permit and responds that the rules are unambiguous: if a person engages or intends to engage in a commercial activity, that person must obtain a commercial controlled exotic snake permit. No changes were made as a result of the comment.
One commenter opposed adoption of the rules and stated that most of the people that keep controlled exotic snakes are hobbyists, not businesses, and may only have two or three animals but may sell them amongst friends at some point in their life. The commenter stated that the rules make all transactions commercial and thus don't provide hobbyists with a way to divest themselves of unwanted animals. The department disagrees with the comment and responds that House Bill 12 requires the department to establish separate permits for recreational and commercial possession of controlled exotic snakes. The department decided to employ a "bright line" in determining what qualifies as a commercial activity. By defining a commercial activity as the possession of a controlled exotic snake for purpose of sale, the department created an easily enforceable provision that would not involve having to determine if any given sale constituted sale by a hobbyist or sale by a business. The department also responds that snakes can be given away, or the person can simply purchase a commercial controlled exotic snake permit and sell the snakes. No changes were made as a result of the comments.
One commenter opposed adoption of the rule and stated that it wasn't right to require a commercial permit holder to also hold a recreational permit as well. The department agrees with the comment and responds that the rules do not require a commercial permit holder to also hold a recreational permit. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the department has no legitimate interest in knowing the identities of out-of-state sellers and buyers and that the recordkeeping requirements of the rules, therefore, interfere with interstate commerce. The department disagrees with the comment and responds that it is important to determine that controlled exotic snakes possessed in Texas have been lawfully obtained and/or sold within the state. The identities of buyers and sellers are, therefore, crucial in ensuring compliance and conducting investigations of alleged violations. No changes were made as a result of the comment.
One commenter opposed adoption and stated that data from permit holders should not be accessible under the Texas Public Information Act because it could "contain sensitive competitive business data as well as information on individuals that may be covered by federal privacy laws." The department disagrees with the comment. There are no reporting requirements under the rule that would provide the department with any "sensitive competitive business data." The rules only require that permit holders maintain certain records at their place of business. In addition, personal information regarding recreational permit holders, including name, address, telephone number, social security number, or driver's license number is confidential under Parks and Wildlife Code, §11.030, and department rules. Commercial permit holders have the option to elect to keep their personal information confidential as well. In the event that a commercial permittee provides commercial information to the department, the permittee should clearly label the information as confidential and must be willing to submit arguments to the Office of the Attorney General about why the information is confidential (Government Code, §552.305).
The department received eight comments supporting adoption of the rules as proposed.
The Texas Wildlife Association commented in support of adoption of the proposed rules.
The new sections are adopted under the provisions of House Bill 12, §41, enacted by the 80th Texas Legislature, which added new Subchapter V to Parks and Wildlife Code, Chapter 43. Section 43.851 requires the commission to adopt rules regarding permitting of controlled exotic snakes and to establish separate rules for commercial and recreational activity regarding exotic snakes. Section 43.855 authorizes the commission to adopt rules to implement the subchapter, including rules governing the possession or transport of a snake covered by this subchapter; permit application forms, fees, and procedures; the release of snakes; reports that the department may require a permit holder to submit to the department; and other matters the commission considers necessary.
§55.652.Permit Required.
(a) Except as provided by Parks and Wildlife Code, §43.851(c), it is an offense for any person in this state to:
(1) possess a controlled exotic snake for any purpose other than sale unless that person possesses a valid recreational controlled exotic snake permit issued by the department; or
(2) sell or possess for commercial purposes a controlled exotic snake unless that person possesses a valid commercial controlled exotic snake permit issued by the department.
(b) A permit issued under this subchapter does not relieve any person of the responsibility of complying with any federal, state, or local law or ordinance regulating the possession and transportation of controlled exotic snakes.
(c) For controlled exotic snakes imported to Texas by common carrier, a bill of lading shall function as a temporary permit until the controlled exotic snakes are received by the consigner indicated on the manifest.
(d) For controlled exotic snakes transported through Texas by common carrier, a bill of lading shall function as a temporary permit during transit.
§55.657.Violations and Penalties.
(a) A person may not intentionally, knowingly, recklessly, or with criminal negligence release or allow the release from captivity of a snake covered by this subchapter.
(b) A person who violates any provision of the subchapter is subject to the penalties prescribed by Parks and Wildlife Code, §43.856.
(c) The provisions of Parks and Wildlife Code, Chapter 43, Subchapter V and this subchapter may be enforced by any Texas peace officer.
(d) It is a defense to prosecution under §55.652 of this title (relating to Permit Required) that the person charged produces in court an appropriate permit issued to the person and valid when the offense was committed.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on March 3, 2008.
TRD-200801280
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Effective date: March 23, 2008
Proposal publication date: December 21, 2007
For further information, please call: (512) 389-4775
Subchapter C. INTRODUCTION OF FISH, SHELLFISH AND AQUATIC PLANTS
The Texas Parks and Wildlife Commission adopts amendments to §57.251 and §57.252, concerning Introduction of Fish, Shellfish and Aquatic Plants, without change to the proposed text as published in the December 21, 2007, issue of the Texas Register (32 TexReg 9550).
Parks and Wildlife Code, §12.015, requires the department to regulate the introduction and stocking of fish, shellfish, and aquatic plants into the public water of the state. Under Parks and Wildlife Code, §66.015, the department is required to adopt rules governing the issuance of permits for the introduction of fish, shellfish, and aquatic plants into public waters. Additionally, Agriculture Code, Chapter 134, requires the department to adopt rules to carry out its duties under that chapter.
The department's statutory responsibility is to protect the health and viability of native populations of fish, shellfish, and aquatic life in state waters, including endangered species. Although offshore aquaculture is being practiced elsewhere in the world, it is in its infancy in the United States in general and the Gulf of Mexico in particular. At the present time, there are no offshore aquaculture operations permitted or in the process of being permitted by the department.
In November of 2006, the Texas Parks and Wildlife Commission adopted rules to govern offshore aquaculture activities in Texas waters. As adopted, the rules created a definition for "outside waters." Although the adoption preamble noted that the definition was necessary to "identify the broad geographical area in which offshore aquaculture operations are lawful," the rule text did not reflect the commission's intent to restrict offshore aquaculture to outside waters. Additionally, the department is concerned that the use of the term "outside waters" is potentially confusing, since the same term is used in the department's regulations governing the shrimp fishery. Therefore, the amendment to §57.251 replaces the term "outside waters" with the term "offshore aquaculture zone" (OAZ) and simplifies the definition for clarity's sake.
The amendment to §57.252 clarifies that the department will not issue an offshore aquaculture permit for a facility that is not located in the offshore aquaculture zone, and removes the stipulation that offshore aquaculture activities be confined to Outer Continental Shelf Blocks. Previously, §57.252(b) stated that aquaculture permits would authorize activities in specific Outer Continental Shelf Blocks (OCSB). In developing the original rule, the department had been under the impression that the OCSB grid system also applied to state waters, which it does not. The block system carries into state waters, but it does not carry the same naming convention. Therefore, the amendment removes the reference to OCSBs and simply restricts permitted activities to the offshore aquaculture zone, which is defined in §57.251 as discussed previously in this preamble.
The department's intent in restricting prospective offshore aquaculture operations to the OAZ is to minimize risk exposure to sensitive bay, river, and inshore ecosystems from potential negative impacts of aquaculture operations offshore.
There is scientific concern over a number of issues raised by aquaculture operations, such as genetic dilution of wild stocks; invasive species vectors; epidemiological and disease issues; impacts of escapement by species that could cause significant environmental harm; habitat destruction; and water diversions that could disrupt aquatic ecosystems, water quality, habitat, and species diversity.
Aquaculture operations are by necessity energy-intensive animal feeding areas. These areas can produce large, concentrated amounts of wastes underneath and around fish cages, and plumes of nutrients and waste can be transported by wind, tides, currents, and boat traffic. Similarly, the chemicals and antibiotics used in fish farming could have effects when discharged directly into open waters; and fish contamination could occur from consumption of fish meal.
The ecology of Texas' inshore hydrology is characterized by shallow water depth, slow water exchange, and seasonal freshwater inflows. This area of the state is important nursery habitat for estuarine fisheries, a major source of organic biomass for coastal food webs, a critical factor in stabilizing coastal erosion and sedimentation, and the arena in which many major nutrient cycling and water quality processes occur. Therefore, the department seeks to restrict aquaculture operations to the open waters of the Gulf of Mexico until such time as the ecological impacts can be definitively understood.
The amendments as adopted will function by establishing unambiguous meanings for words and terms used in the subchapter, and by specifically identifying the geographical area where offshore aquaculture activities could be permitted.
The department received no comments opposing adoption of the proposed amendments.
The department received four comments supporting adoption of the proposed amendments.
No groups or associations commented on the proposed amendments.
The amendments are adopted under Parks and Wildlife Code, §12.015, which requires the department to regulate the introduction and stocking of fish, shellfish, and aquatic plants into the public water of the state; §66.015(c), which requires the department to establish rules related to the issuance of permits for the introduction of fish, shellfish, or aquatic plants into the public water of the state; and Agriculture Code, §134.005, which requires the commission to adopt rules necessary to carry out its responsibilities under that chapter to regulate aquaculture.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on March 3, 2008.
TRD-200801281
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Effective date: March 23, 2008
Proposal publication date: December 21, 2007
For further information, please call: (512) 389-4775
The Texas Parks and Wildlife Commission adopts the repeal of §65.607 and amendments to §§65.601 - 65.605, 65.608, and 65.610 - 65.612, concerning the Deer Breeder Permits. Section 65.604 is adopted with changes to the proposed text as published in the December 14, 2007, issue of the Texas Register (32 TexReg 9269) and will be republished. The repeal of §65.607 and amendments to §§65.601 - 65.603, 65.605, 65.608, and 65.610 - 65.612 are adopted without change and will not be republished.
The change to §65.604, concerning Disease Monitoring, alters subsection (c) to replace the "and" with an "or." As worded, the provision requires that a facility meet two specific requirements in order to be eligible for the department to authorize the transfer of deer. The department's intent is that satisfaction of either of the requirements is sufficient.
The repeal and amendments are necessary to implement the requirements of House Bill 1308, enacted by the 80th Texas Legislature, which amended Parks and Wildlife Code, Chapter 43, Subchapter E, to make changes recommended by the Breeder User Group, an ad hoc group of deer breeders and to make housekeeping and clean-up type changes to improve clarity and sense.
The title of 31 TAC Chapter 65, Subchapter T, is affected by House Bill 1308, which eliminates the term "scientific breeder" and replaces it with the term "deer breeder."
The repeal of §65.607, concerning Marking of Deer, has the effect of eliminating provisions regarding the marking of deer held in captivity under a deer breeder's permit. House Bill 1308 added new Parks and Wildlife Code, §43.3561, which creates a statutory provision for identification of breeder deer. The proposed repeal is necessary to prevent conflict between the rules and their enabling statute.
House Bill 1308 made a number of changes involving terminology. Already mentioned is the change of "scientific breeder" to "deer breeder." Similarly, the amendments also replace the term "scientific breeder deer" with the term "breeder deer" throughout the subchapter. The changes are necessary to make regulatory language consistent with statutory language.
The amendment to §65.601, concerning Definitions, introduces a new definition, eliminates or alters several current definitions, and redesignates the paragraphs in the section accordingly.
The amendment to §65.601 adds a definition for "accredited test facility." Prior to this rulemaking, disease testing was done by the Texas Veterinary Medical Diagnostic Laboratories; however, the United States Department of Agriculture has certified additional laboratories to perform testing for Chronic Wasting Disease. Therefore, the amendment defines an "accredited test facility" as "any laboratory approved by the U.S. Department of Agriculture to test white-tailed deer or mule deer for Chronic Wasting Disease" and replaces references in §65.604, concerning Disease Monitoring, as necessary.
The amendment to §65.601 eliminates the definitions for "common carrier," "deer," "propagation," and "scientific." "Deer" is now defined by statute (Parks and Wildlife Code, §43.351) and "common carrier," "propagation," and "scientific" are no longer used in the subchapter and thus are unnecessary.
The amendment to former §65.601(9), redesignated as paragraph (7), alters the definition of "sale" to include releases or deliveries for a consideration, barter, or even exchange. Prior to this rulemaking, the definition was applicable only to a transfer of possession and did not address the scenario in which a person who is not a deer breeder might purchase a breeder deer and liberate it, in which case the deer would not be possessed by the purchaser. The amendment is necessary to ensure that the rules apply to all of the various possible situations and circumstances in which breeder deer are bought and sold.
The amendment to former §65.601(12), redesignated as paragraph (9), alters the definition of "transfer permit" to reference the definition of "transfer" in Parks and Wildlife Code, §43.351(7). Parks and Wildlife Code, §43.351(7), defines "transfer" as "any movement of breeder deer from a breeder facility, a nursing facility, or a deer management permit facility other than to an accredited veterinarian for medical purposes." Prior to this rulemaking, the regulatory definition of "transfer permit" implied that a transfer permit was required for all movement of breeder deer; however, an exception in §65.610(e)(6) allows breeder deer to be moved without a transfer permit for medical treatment by a veterinarian. The amendment is necessary to make the definition of "transfer permit" accurate.
The amendment to former §65.601(13) alters the definition of "unique number" to match the description of "unique number" in Parks and Wildlife Code, §43.3561, as added by House Bill 1308.
The amendment to §65.602, concerning Permit Requirement and Permit Privileges, implements statutory terminology, replaces a reference to the Texas Administrative Code (TAC) with a reference to the Parks and Wildlife Code, and eliminates a time-dependent provision that is no longer necessary. As previously noted, House Bill 1308 made a number of changes that necessitate alterations of regulatory terminology for the sake of consistency. The amendment makes those changes where necessary throughout the section. House Bill 1308 also removed the commission's explicit rulemaking authority with respect to the marking of breeder deer. The amendment, therefore, removes a reference to 31 TAC §65.607, concerning Marking of Deer, because that section is repealed by this rulemaking. The reference is replaced with a reference to Parks and Wildlife Code, §43.3561, which prescribes marking requirements by statute. Prior to this rulemaking, §65.602(c) specified that the provisions of that subsection were to be effective until March 31, 2007. This deadline was created as part of a previous rulemaking related to disease surveillance and is no longer necessary because the deadline has passed.
The amendment to §65.603, concerning Application and Permit Issuance, alters terminology as discussed previously, eliminates the breeding plan required as part of an application for a breeder permit, eliminates the requirement that an application for a permit be notarized, clarifies a provision relating to the certification of the adequacy of prospective breeding facilities, allows the department to delay the denial of a permit renewal if the permittee is making acceptable progress towards resolving deficiencies, and rewords a provision governing the submission of site plans following facility modification.
Prior to this rulemaking, §65.603 required an applicant for a breeder permit to submit a breeding plan to the department for approval. The department has determined that the original purpose for the requirement no longer exists. When the former scientific breeder's permit was created, it was thought necessary to monitor breeding operations to determine if further specific regulations would be required. The department has determined that, in general, deer-breeding expertise has progressed beyond the experimental stage and there is no reason to continue to require the breeding plan.
The previous rule also required an applicant for a breeder permit to have the completed application notarized. Notarization is not necessary as a means to certify that the information is accurate and true to the applicant's knowledge, because the application is a government record; and falsification is, therefore, an offense under Penal Code, §37.10. Therefore, the requirement is unnecessary and is eliminated.
Prior to this rulemaking, §65.603(a)(3)(C)(i)(II), redesignated as subsection (a)(2)(A)(ii), required a statement from a certified wildlife biologist to the effect that a prospective breeding facility was "adequate to conduct the proposed activities." Because Parks and Wildlife Code, Chapter 43, Subchapter L, and the rules specify the exact activities that may be conducted under a deer breeder permit, there is no need to require a statement of proposed activities. Therefore, the provision has been reworded to require a statement from a certified wildlife biologist that the prospective deer breeding facility is adequate for the lawful conduct of activities governed by the subchapter.
Former §65.603(d) provided for the renewal of a breeder permit, provided the permittee submitted an application for renewal and was otherwise in compliance with the requirements of the subchapter; however, the rule did not explicitly state a requirement for timely renewal. Therefore, the amendment specifies that an application for a renewal must be timely filed. All deer breeder permits expire each July 1. The department notifies each permittee of pending expiration and reminds the permittee to submit a renewal application if they desire to continue deer breeding. The department considers that a renewal application is timely filed if it is received prior to the expiration of the current permit. However, the department is sympathetic to unpredictable and unexpected events that can occur; therefore, the amendment allows the department to consider the particulars of an applicant's situation in the event the applicant is unable to timely file a renewal application, with the understanding that the applicant must be making satisfactory progress towards resolution of the situation.
Prior to this rulemaking, §65.603(f) required permittees to submit an accurate diagram to the department whenever a breeder facility was "enlarged or added to." The provision was intended to apply to changes that increase the size of the facility or include physical area that was not previously part of the facility. The regulated community has commented that the current language could be misunderstood to mean that changes to the placement of pens or gates within a permitted facility would require the filing of a new diagram with the department. Therefore, the amendment requires a new diagram to be submitted to the department whenever a permittee alters "the exterior dimensions of a breeder facility, either by enlargement or reconfiguration."
The amendment to §65.604, concerning Disease Monitoring, eliminates a time-sensitive provision that is no longer necessary and identifies the effective date of a previous rulemaking. The amendment also allows for the testing of deer for Chronic Wasting Disease at any facility approved by the U.S. Department of Agriculture to perform such tests.
Prior to this rulemaking, §65.604(a) stipulated that the provisions of subsections (b) - (d) and (g) were to take effect April 1, 2007. This effective date was created in order to defer the effectiveness of those provisions until other provisions governing disease-surveillance requirements could be brought into effect. The current provision is no longer necessary because that date has passed and those requirements are now in effect.
Similarly, former §65.604(e) and (f), redesignated as subsections (d) and (e), referred to "the effective date of this subsection." The language was necessary because the department wished to defer the effectiveness of those subsections. Now that the effective date is known, the department has identified it in the rules so that interested parties will not have to search through previous rulemakings.
The amendment to §65.605, concerning Holding Facility Standards and Care of Deer, removes a reference to §65.607, concerning Marking of Deer, because that section has been repealed. The reference has been replaced with a reference to Parks and Wildlife Code, §43.3561, which prescribes marking requirements by statute. The amendment also makes changes to terminology as discussed. The amendment also removes the requirement that notification of an escaped deer be notarized. Notarization is not necessary as a means to certify that the information is accurate and true to the applicant's knowledge, because the notification application is a government record and falsification is, therefore, an offense under Penal Code, §37.10. Therefore, the current requirement is unnecessary.
The amendment to §65.608, concerning Annual Reports and Records, eliminates a provision requiring permittees to maintain documentation attesting to the source or origin of deer held by the permittee. Under the provisions of House Bill 1308, Parks and Wildlife Code, §43.359 was amended to require a deer breeder to maintain an accurate and legible record of all breeder deer acquired, purchased, propagated, sold, transferred, or disposed of and any other information required by the department that reasonably relates to the regulation of deer breeders. Additionally, House Bill 1308 amended Parks and Wildlife Code, §43.359, to require deer breeders to make any information required under Parks and Wildlife Code, Chapter 43, Subchapter L, for the previous two reporting years available to a game warden or another authorized department employee. Therefore, the provision is no longer necessary.
The amendment to §65.610, concerning Transfer of Deer, makes changes to terminology, makes references to statutory provisions, clarifies the meaning of a provision affecting permit possession, and rewords a provision for clarity.
The amendment to §65.610(c) allows the temporary possession of breeder deer by a person who is not a permitted deer breeder, provided the person possesses a valid transfer permit. Under previous rule, possession of breeder deer by unpermitted persons could only occur for purposes of release. Discussions with the Breeder User Group convinced the department that employees of deer breeders should be allowed to transport breeder deer under the authority of a transfer permit.
Under previous §65.610(d)(2), the release of buck breeder deer was prohibited during an open season and during the 10-day period immediately prior to an open season, unless the buck's antlers had been removed. House Bill 1308 provided an exception to this prohibition by allowing the transfer of antlered buck deer to another breeding facility or to a facility operated under a deer management permit. The amendment provides for the exceptions created under House Bill 1308.
Previous §65.610(d)(3) allowed a person who is not a breeder permit holder to be in possession of breeder deer under a transfer permit if the deer are being transported for purposes of release. The provision is no longer necessary because of the amendment to 65.610(c), which authorizes temporary possession of breeder deer by a person who is not a permitted deer breeder.
Previous §65.610(e)(4) was awkwardly worded. The amendment restates the provision in a clearer fashion.
The amendment to §65.611, concerning Prohibited Acts, eliminates three subsections that are no longer necessary and identifies the effective date of a previous rulemaking.
Previous §65.611(c) prohibited the possession of deer taken from the wild within a breeder facility. However, under House Bill 1308, Parks and Wildlife Code, §43.365 was amended to eliminate the offense of taking, trapping, or capturing or attempting to take, trap, or capture white-tailed deer or mule deer from the wild. Parks and Wildlife Code, §43.061, makes it an offense for any person to capture, transport, or transplant any game animal or game bird from the wild unless that person has obtained a permit to trap, transport, and transplant from the department. Additionally, the violation of under §43.061 is a Class B misdemeanor rather than a Class C misdemeanor. As a result, former subsection (c) became unnecessary.
The amendment to §65.611 also eliminates former subsection (f), which prohibits the hunting or killing of breeder deer within a breeder facility. House Bill 1308 amended Parks and Wildlife Code, §43.365, to allow for the euthanization of breeder deer for humane dispatch or disease testing and prohibits the hunting or killing of breeder deer except as provided by commission rule.
The amendment to §65.611 also eliminates former subsection (h), which prohibits the sale of breeder deer unless either the purchaser or seller possesses a permit valid for the transaction. The amendments affecting the transfer permit make the provisions of subsection (h) redundant and, therefore, unnecessary.
Previous §65.611(i), redesignated as subsection (f), states that the subsection does not apply to breeder deer possessed before the effective date of the subsection. When the rule was promulgated, the effective date of the rulemaking was not known. Now that the effective date is known, the amendment would identify that date for the sake of ease and convenience.
The amendment to §65.612, concerning Disposition of Deer, changes terminology where necessary as previously discussed.
The rules as adopted will function by implementing the requirements of House Bill 1308, enacted by the 80th Texas Legislature, which amended Parks and Wildlife Code, Chapter 43, Subchapter L; by making the rules less burdensome; and by making regulatory terminology clearer and more accurate.
The department received three comments opposing adoption of the proposed rules. Of those comments, two expressed a specific rationale or reasoning for opposing adoption. Those comments, accompanied by the department's response to each, are as follows.
One commenter opposed adoption of the proposed rules and stated that captive deer breeding should be eliminated entirely. The department disagrees with the comment and responds that Parks and Wildlife Code, Chapter 43, Subchapter L, requires the department to "issue a permit to a qualified person to possess live breeder deer in captivity." The commission does not have the authority to eliminate or modify that requirement. No changes were made as a result of the comment.
One commenter opposed adoption of the proposed rules and stated that deer belong to the state and the only deer breeding should be done in the wild. The department disagrees with the comment and responds that Parks and Wildlife Code, Chapter 43, Subchapter L, requires the department to "issue a permit to a qualified person to possess live breeder deer in captivity." The commission does not have the authority to eliminate or modify that requirement. No changes were made as a result of the comment.
The department received five comments supporting adoption of the proposed rules.
The Texas Wildlife Association commented in support of adoption of the proposed rules.
Subchapter T. DEER BREEDER PERMITS
31 TAC §§65.601 - 65.605, 65.608, 65.610 - 65.612
The amendments are adopted under Parks and Wildlife Code, §43.357, which authorizes the commission to make regulations governing the possession of breeder deer held under Parks and Wildlife Code, Chapter 43, Subchapter L; the recapture of lawfully possessed breeder deer that have escaped from the facility of a deer breeder; permit applications and fees; reporting requirements; procedures and requirements for the purchase, transfer, sale, or shipment of breeder deer; the endorsement of a deer breeder facility by a certified wildlife biologist; the number of breeder deer that a deer breeder may possess; and the dates for which a deer breeder permit is valid.
§65.604.Disease Monitoring.
(a) No person shall remove, or authorize or cause the removal of a live breeder deer from a facility permitted under this subchapter unless:
(1) the facility is designated by the department as movement qualified; or
(2) the removal is specifically authorized by the department.
(b) No person shall knowingly or intentionally allow the introduction of a live breeder deer from a facility that is not movement qualified into a facility permitted under this subchapter.
(c) The department may authorize the transfer of breeder deer from a facility that is not movement qualified or for which there is no valid deer breeder permit to a facility permitted under this subchapter; however, the receiving facility shall not allow any breeder deer to be moved from the facility for a period of one year from the date the transfer occurs.
(d) A facility permitted under this subchapter is movement qualified if no CWD test results of 'detected' have been returned from an accredited test facility for breeder deer submitted from the facility or at least one of the following criteria is satisfied:
(1) the facility is certified by the Texas Animal Health Commission (TAHC) as having a CWD Monitored Herd Status of Level A or higher;
(2) less than five eligible breeder deer mortalities have occurred within the facility as of May 23, 2006; or
(3) CWD test results of 'not detected' have been returned from an accredited test facility on a minimum of 20% of all eligible breeder deer mortalities occurring within the facility as of May 23, 2006.
(e) An eligible mortality is any lawfully possessed breeder deer aged 16 months or older that has died within a facility after May 23, 2006.
(f) A facility is no longer movement qualified if it cannot meet the requirements of subsection (d) of this section as of March 31 of any year; however, a facility may reestablish movement qualified status at any time by meeting the requirements of subsection (d) of this section.
(g) If a person receives or accepts into a facility that is movement qualified a breeder deer from a facility that is known by the person not to be a movement qualified facility, the receiving facility immediately and automatically loses movement qualified status for a period of one year from the date the transfer occurred, as determined by the department.
(h) Except as provided in this subsection, no person shall introduce into or remove deer from or allow or authorize breeder deer to be introduced into or removed from any facility for which a test result of 'detected' has been obtained from an accredited test facility. The provisions of this subsection take effect immediately upon the posting of notice by the department at the facility that a 'detected' result has been obtained and continue in effect until:
(1) the facility meets the requirements of subsection (d) of this section; and
(2) the department specifically authorizes the resumption of permitted activities at the facility.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on March 3, 2008.
TRD-200801282
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Effective date: March 23, 2008
Proposal publication date: December 14, 2007
For further information, please call: (512) 389-4775
The repeal is adopted under Parks and Wildlife Code, §43.357, which authorizes the commission to make regulations governing the possession of breeder deer held under Parks and Wildlife Code, Chapter 43, Subchapter L; the recapture of lawfully possessed breeder deer that have escaped from the facility of a deer breeder; permit applications and fees; reporting requirements; procedures and requirements for the purchase, transfer, sale, or shipment of breeder deer; the endorsement of a deer breeder facility by a certified wildlife biologist; the number of breeder deer that a deer breeder may possess; and the dates for which a deer breeder permit is valid.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on March 3, 2008.
TRD-200801283
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Effective date: March 23, 2008
Proposal publication date: December 14, 2007
For further information, please call: (512) 389-4775