Administrative Rule Review Report         #       AR11-033

Legislative Service Office

15-Jul-11

 

AGENCY:                                           Game and Fish Department

DATE SUBMITTED:                         7/14/2011

SUBJECT:                                           Chapter 22, Watercraft; Chapter 25, Falconry; Chapter 37,

                                                            Raptor Propagation; Chapter 44, Issuance of Licenses,

                                                            Permits, Stamps, Tags, Preference Points & Coupons;

                                                            Chapter 45, Wildlife Rehabilitation; Chapter 46, Fishing

                                                            Regulations.

NATURE OF RULES:                        Legislative and procedural.

STATUTORY AUTHORITY:            W.S. 23-1-302

 

DETERMINATION OF PROCEDURAL COMPLIANCE BASED UPON INFORMATION SUBMITTED BY THE AGENCY TO LSO:  Portions of the changes to Chapter 44 were in response to legislation passed in the 2011 Legislative Session.  The Agency did not provide notice, as required by W.S. 16-3-103(a)(i)(D), that the rules being adopted were new rules.  As a consequence, notice of the proposed rulemaking was not provided to the prime sponsor or committee responsible for the enabling legislation as required by W.S. 28-9-103(d).   Otherwise, procedural compliance is apparently complete to date.

 

SUMMARY OF RULES:      

 

Chapter 22, Watercraft:  No substantive changes were made to these rules, only grammatical corrections were made.

 

Chapter 25, Falconry:  The U.S. Fish and Wildlife Service is in the process of transferring authority for regulation of falconry to the states.  Due to this transfer, these rules were substantially rewritten to provide substantive regulation by the agency.  The statement of reasons provides detailed information about the new regulatory program embodied in the rules and is attached hereto.

 

Chapter 37, Raptor Propagation:  These rules are amended to coordinate with the changes to the Falconry regulation program outlined in Chapter 25.

 

Chapter 44, Regulation for Issuance of Licenses:  These rules are amended to allow landowners to receive an additional limited quota reduced price license.  The rules also clarify that no more than two wild turkey licenses will be issued each year per landowner parcel of land, regardless of change of ownership of the land.  With respect to commissioner complementary licenses, the rules prohibit the issuance of those licenses in hunt areas having a quota of twenty or fewer licenses.  New rule provisions in this Chapter provide for issuance of pioneer licenses for wild turkey and donation of big game licenses to disabled veterans.

 

Chapter 45, Wildlife Rehabilitation:  The rules are amended to allow temporary transfer of possession of an injured raptor to a person holding a falconry permit under Chapter 25.

 

Chapter 46, Fishing Regulations:  These rules are amended every two years to set creel limits for different species of fish and drainages.  These rules set a separate creel limit for lakes and streams, with a reduced limit on streams.  The requirement to keep fish whole during transit has been relaxed.  The rules also remove the requirement that ice fishing shelters be labeled with the name of the owner.

 

FINDINGS:                Chapters 22, 44 and 46 appear to be within the scope of statutory authority and legislative intent.   

 

In Chapters 25, 37 and 45, the agency has incorporated by reference various chapters of the Code of Federal Regulations.  In these amended rules all reference to the date of the CFRs has been omitted.  W.S. 16-3-103(h)(ii) allows for incorporation by reference if "The reference in the rules of the incorporating agency fully identifies the incorporated matter by location, date and otherwise, and states that the rule does not include any later amendments or editions of the incorporated matter.".  Failure to include the specific date of the latest federal regulation and failure to include the statement required places these rules outside the scope of the agency's statutory authority.

 

STAFF RECOMMENDATION:

 

That the Chapters 22, 44 and 46 be approved by the Council as submitted by the Agency but that the Council request the Governor to caution the agency concerning the need to comply with statutory procedural requirements for adoption of new rules, as noted in this rule review report.

 

With respect to Chapters 25, 37 and 45, the recommendation is that Council request that the Governor ensure the rules are amended before filing with the Secretary of State, by including the statements required by the statutory provisions in W.S. 16-3-103(h)(ii).  Making these purely technical amendments will ensure the agency and the public are aware of the statutory requirements.  If the rules are not so amended, the recommendation is that Council recommend the Governor not approve the rules and request the Department to readopt the rules, addressing the issues noted.

 

 

                                                                        _______________________

                                                                        Lynda Cook

                                                                        Staff Attorney

 

 

                                                                        _______________________

                                                                        Dan Pauli

                                                                        Director

LGC/cb