Commission Agenda Item No. 9
Presenter:  Mitch Lockwood

Action
Nuisance Alligator Control Permit and Fee Rules
January 26, 2012

I.       Executive Summary:  This item seeks adoption of proposed new nuisance alligator control rules.  The proposed new rules would:

II.      Discussion:  Under Parks and Wildlife Code, Chapter 65, the commission may regulate by proclamation the taking, possession, transportation, and sale of alligators, to include the control of nuisance alligators.  Over the last 20 years, once-imperiled alligator populations in Texas have rebounded spectacularly; however, increased suburban, exurban, and industrial development in coastal counties, particularly along the mid- and upper coast, has resulted in steadily increasing numbers of nuisance alligator complaints.

Staff has determined that the current system for addressing nuisance alligators is problematic, as it depends on a small number of contract hunters whose availability is not always guaranteed and consumes large amounts of staff time with respect to response, evaluation, and disposition of nuisance alligator complaints.  Simply put, the department does not have the resources to investigate nuisance alligator calls.  Staff recommends a new approach based on the utilization of trained nuisance control hunters permitted by the department.  Staff proposes implementation of a permit system that would allow control hunters to contract directly with landowners for the removal of nuisance alligators.

Staff was authorized at the November 2011, meeting of the Regulations Committee to publish the proposed rules for public comment.  The proposed amendments were published in the December 23, 2011, issue of the Texas Register (36 TexReg 8737-8738).  Staff will present a summary of public comment at the time of the meeting.

III.     Recommendation:  The staff recommends the Texas Parks and Wildlife Commission adopt the following motion:

         “The Texas Parks and Wildlife Commission adopts an amendment to §53.8, concerning  Alligator Licenses, Permits, Stamps, and Tags, and new §65.363, concerning Nuisance Alligator Control, with changes as necessary to the proposed text as published in the December 23, 2011, issue of the Texas Register (36 TexReg 8737, 8741).”

            Attachments — 2

  1. Exhibit A – Proposed Nuisance Alligator Control Rule
  2. Exhibit B – Proposed Fee Rule

Commission Agenda Item No. 9
Exhibit A

NUISANCE ALLIGATOR CONTROL RULES
PROPOSAL PREAMBLE

1. Introduction.

         The Texas Parks and Wildlife Department proposes the repeal of §65.363 and new §65.363, concerning Nuisance Alligator Control. The proposed new rule would establish a permit for the control of nuisance alligators; prescribe requirements for permit application and issuance; set forth permit privileges and restrictions; specify reporting, notification, and recordkeeping requirements; and establish provisions for the denial of permit issuance and review of agency decisions to deny permit issuance. For purposes of this preamble, a reference to “permit” or “control permit,” unless otherwise indicated, is a reference to a nuisance alligator control permit.

         Over the last 20 years, once-imperiled alligator populations in Texas have rebounded spectacularly; however, increased suburban, exurban, and industrial development in and adjacent to coastal counties, particularly along the mid- and upper coast, has resulted in increasing numbers of nuisance alligator complaints, especially in areas biologically characterized by diminishing or little to no habitat. Under the current regulatory protocol for nuisance alligator control, the department contracts with qualified individuals for the removal of nuisance alligators. Each control hunter bids for the privilege of conducting nuisance control activities in a specific territory, agreeing to pay a per-foot price to the department for every alligator removed. In return, the control hunter is allowed to retain captured alligators and either sell them to alligator farmers or process and sell the skin and meat. All removals are authorized on a case-by-case basis by the department.

         The department has concluded that given the increased number of nuisance alligator complaints, the current system for addressing nuisance alligators is obsolete and inefficient, as it depends on a small number of contract hunters whose availability is not guaranteed and consumes large amounts of staff time with respect to response, evaluation, and disposition of nuisance alligator complaints. The proposed new rule would implement a new approach that would allow control hunters to contract directly with landowners for the removal of nuisance alligators. The control hunter still would be permitted to retain captured alligators and process or sell them.

         Proposed new §65.363(a) would prohibit any person from taking, killing, transporting, selling, or releasing a nuisance alligator in Texas unless the person possesses a valid permit to do so, except as provided in 31 Texas Administrative Code (TAC) §65.49(g), which allows any person to kill an alligator in the immediate defense of human life or to protect livestock or other domestic animals from imminent injury or death. The proposed provision is necessary to establish the acts that encompass nuisance alligator control.

         Proposed new §65.363(b) would set forth the procedure and requirements for the application and issuance of a nuisance alligator control permit. Proposed new subsection (b)(1) would require an applicant to submit a completed application, complete a department-administered course on nuisance alligator control, pass a department-administered examination, and pay a permit fee of $252. Under the current protocol, nuisance alligator complaints are evaluated by department personnel on a case-by-case basis and handled by the department or by a control hunter notified by the department, depending on the circumstances. Under the proposed new protocol, nuisance alligator complaints would be handled directly by control hunters for a price negotiated between the control hunter and the landowner. Because department staff will not be directly involved on a case-by-case basis, the department believes that it is important to ensure that control hunters are qualified and trained to employ appropriate and effective techniques to minimize threats to human safety, determine whether and alligator is a nuisance alligator and ensure that nuisance alligators are treated humanely. For this reason, the proposed rule would require prospective permittees to complete a department-administered course in the proper methods of alligator control, and to pass a test to assess that knowledge, before a permit could be issued. The proposed new subsection would establish an annual deadline of November 1 for the submission of permit applications, which is necessary to allow staff to process applications and conduct training activities at a time of the year when alligators are not active. The proposed new subsection also provides for the refusal of permit issuance to any person who, in the department’s determination, lacks the skill, experience, or aptitude to adequately perform the activities typically involved in nuisance alligator control. There is an inherent danger in approaching and handling alligators under any circumstances, and it is axiomatic that such encounters in urban or suburban environments involve animals and humans under increased stress. Therefore, the department seeks to provide for instances in which a prospective permittee, despite department training, is believed to be unready to conduct control activities.

         Proposed new §65.363(c) would establish the period of validity for a nuisance alligator control permit at one year, which is consistent with validity periods of other, similar types of permits.

         Proposed new §65.363(d) would set forth the privileges and restrictions of a nuisance alligator control permit. Proposed paragraph (1) would authorize a control hunter to contract directly with a  landowner or landowner’s authorized agent (including a political subdivision, governmental entity, or property owner’s association) for a fee or other compensation for the removal of nuisance alligators. As noted previously, the number of nuisance alligator complaints in urban and suburban areas has steadily increased, making it unfeasible for both fiscal and practical reasons for department personnel to continue to supervise nuisance control activities on a case-by-case basis. By allowing control hunters to contract directly with landowners, the department hopes to streamline the process and allow game wardens and biologists to attend to other duties. The proposed new paragraph also would allow control hunters to take nuisance alligators at any time of day, to retain and sell alligators taken under a permit, and to release alligators into suitable habitat with the approval of the department and the owner of the land on which the release occurs.

         Proposed new paragraph (2) would prohibit control hunters from taking alligators that are not nuisance alligators and from using any means, methods, or procedure not approved by the department for the capture, immobilization, transport, or dispatch of a nuisance alligator. The department intends for the proposed rule to be used only in instances when an alligator is a bona fide nuisance as defined in §65.352 (“an alligator that is depredating or a threat to human health or safety”) of the subchapter. The department will specify the authorized means and methods for the capture of nuisance alligators, and the take of nuisance alligators by permittees will be lawful at any time of day.

         Proposed new §65.363(e) would stipulate that all tagging requirements currently in effect would also apply to alligators taken or possessed under a nuisance control permit. By federal law (50 CFR §23.70), alligators cannot be exported from any state that is not approved for export by U.S. Fish and Wildlife Service. To receive export approval, the state must, among other things, require all harvested alligators to be tagged with a CITES (Convention on International Trade in Endangered Species) tag, an identification marker that allows lawfully taken crocodilian species to be differentiated from protected lookalike species.

         Proposed new §65.363(f) would prescribe the reporting, notification, and recordkeeping requirements for nuisance control hunters. Proposed new paragraph (1) would prohibit nuisance control activities unless certain information regarding the owner of the land where the control activities take place is possessed in writing on the person of the control hunter. The department seeks to ensure that all alligators taken under a control permit are in fact nuisance alligators and that each nuisance alligator can be traced back to a named complainant who is legally able to authorize the removal of nuisance alligators from the property where control activities are or have been conducted. The department does not intend for a control permit to authorize indiscriminate or unlimited alligator harvest. Proposed new paragraph (2) would require each control hunter to maintain a daily log of nuisance control activities, to include the case number of the nuisance alligator complaint (if the nuisance complaint was referred to the control hunter by the department), the date and location of each nuisance alligator captured, the sex and length of each alligator captured, and the disposition of each alligator captured. As mentioned in the discussion of proposed paragraph (1), the department does not intend to create a way for unscrupulous persons to engage in wholesale removal of alligators under the guise of nuisance control. Requiring permittees to maintain a record of activities in real time creates two checks on such behavior. First, because the proposed new rule also would require permittees to submit hide tag utilization reports and quarterly harvest reports, inconsistencies between those reports and the daily log will alert the department to possible unscrupulous behavior. Second, department game wardens will from time to time make spot checks in the field to ensure that daily logs are being maintained and that the information in the logs is accurate. Proposed new paragraph (3) would require control hunters to retain an invoice or receipt for each alligator taken by the permittee that is sold or otherwise transferred to another person. The department has determined that the creation of a paper trail is necessary to establish and/or verify that any given alligator was lawfully taken. Proposed new paragraph (4) would require that all records and documents required under the proposed new section be retained and kept on file for inspection upon request of a department employee acting within the official scope of duty for a two–year period immediately following the expiration of the period of validity of the permit. 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 Parks and Wildlife Code, Chapter 65, the statutory authority for the regulation of alligators by the department. The proposed new provision is necessary to enable the department to track the activities of persons in the event that an investigation is necessary. Proposed new paragraph (5) would require control hunters to complete an alligator hide tag report immediately upon the take of a nuisance alligator and to submit it to the department within seven days of take; require control hunters to submit quarterly reports of nuisance control activity, and specify that the department may refuse to issue a new or subsequent permit to anyone who has not complied with the provisions of the proposed new paragraph. As discussed previously, the export of alligators from a state is prohibited unless the state has been approved to do so by the U.S. Fish and Wildlife Service (Service). In order to receive export approval, the state annually must furnish the Service an assessment of the condition of the wild alligator population; a description of the types of information on which the assessment is based, such as an analysis of carcass demographics, population models, analysis of past harvest levels as a function of skin prices or harvester effort, or indices of abundance independent of harvest information, such as nest surveys, spotlighting surveys, or nuisance complaints; harvest control measures, including laws regulating harvest seasons and methods; total allowable harvest; tagging or marking requirements for skins and parts; habitat evaluation; and information on nuisance alligator management programs. In order for the department to provide this information to the Service, which in turn allows alligators harvested in Texas to be exported, the department must get data from persons who raise or take alligators. The data are also useful in the event that law enforcement investigations become necessary.

         Proposed new subsection (g) would set forth the conditions under which the department could refuse to issue a control permit, based on the criminal history of a permittee or applicant with regard to wildlife law. The proposed new subsection would allow the department to refuse permit issuance to any person who has been convicted of, pleaded nolo contendere to, or received deferred adjudication for a violation of Parks and Wildlife Code, Chapter 43, Subchapters C, E, L, or R, or a violation of Parks and Wildlife Code, Chapter 65; a violation of Parks and Wildlife Code that is a Class B misdemeanor, a Class A misdemeanor, or felony; or a violation of Parks and Wildlife Code, §63.002. In addition, the proposed new subsection would allow the department to refuse permit issuance to any person who has been convicted of, pleaded nolo contendere to, received deferred adjudication or pre-trial diversion for, or assessed a civil penalty for a violation of 16 U.S.C. §§3371-3378 (the Lacey Act). The department has determined that the decision to issue a permit should take into account an applicant’s history of violations involving the capture and possession of live animals, major violations of the Parks and Wildlife Code (Class B misdemeanors, Class A misdemeanors, and felonies), and violations involving alligators (Parks and Wildlife Code, Chapter 65). The department reasons that it is appropriate to deny the privilege of taking wildlife resources for personal benefit to persons who exhibit a demonstrable disregard for the regulations governing wildlife. Similarly, it is appropriate to deny the privilege of personally benefitting from wildlife to a person who has exhibited demonstrable disregard for wildlife law in general by committing more egregious (Class B misdemeanors, Class A misdemeanors, and felonies) violations of wildlife law.

         The denial of the ability to conduct nuisance alligator control activities as a result of an adjudicative status listed in the proposed new rule would not be automatic, but within the discretion of the department. Factors that may be considered by the department in determining whether to refuse permit issuance based on adjudicative status include, but are not limited to, the seriousness of the offense, the number of offenses, the existence or absences of a pattern of offenses, the length of time between the offense and the permit application, the applicant’s efforts towards rehabilitation, and the accuracy of the information provided by the applicant regarding the applicant’s prior permit history.

         Proposed new subsection (h) would provide a mechanism for persons who have been denied permit issuance to have the opportunity have such decisions reviewed by department managers. The proposed new subsection is intended to help ensure that decisions affecting permit privileges are correct.

         Proposed new §65.363(i) would establish the broad context of acts that would constitute an offense under the rule and the Parks and Wildlife Code.

2. Fiscal Note.

         Mitch Lockwood, Big Game Program Director, has determined that for each of the first five years that the rule as proposed is in effect, there will be fiscal implications to state government as a result of enforcing or administering the rule. Those implications are expected to be positive, since the nuisance alligator control permit is a new protocol intended to eliminate the substantial costs incurred by the department in administering the present nuisance alligator control protocol. The department expended approximately $121,000 in salary in Fiscal Year 2009 (the last full fiscal year for which data is available) on nuisance alligator control activities, primarily in the form of biologist and game warden time (travel, investigation, and disposition) for approximately 1,100 nuisance alligator complaints. This estimate was derived by multiplying the number of complaints by an estimated four-hour commitment of staff time per complaint at the average hourly salary of a field game warden ($25.66), which represents the majority of nuisance alligator control activities undertaken by the department. This estimate does not include fuel, equipment, or administrative costs, which are not segregated at a scale fine enough to isolate those costs with respect to nuisance alligator control administration.

         Although the department will incur costs associated with providing mandatory nuisance alligator control hunter training (approximately $500 per student), data entry and administrative expenses related to data analysis (approximately $15,000 per year), and loss of revenue from the elimination of control hunter payments and loss of hide fees (approximately $9,836 per year, using the last four years of data) to the department , that cost is expected to be significantly lower than the current costs of administering nuisance alligator control activities and may well be offset or more than offset by an increase in permit issuance.   

         There will be no fiscal implications for other units of state or local government as a result of enforcing or administering the rule.

3. Public Benefit – Cost Note.

         Mr. Lockwood has also determined that for each of the first five years the rule as proposed is in effect:

         (A) The public benefit anticipated as a result of enforcing or administering the rule as proposed will be the control of nuisance alligators.

         (B) Under the 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 affect on small businesses and micro-businesses. As required by Government Code, §2006.002(g), the Office of the Attorney General has prepared guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small 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 most if not all businesses affected by the proposed rule qualify as small or microbusinesses. The department also has determined that there will be no adverse economic effects on small businesses, microbusinesses, and persons required to comply with the amendments as proposed. Although the proposed rule would impose a permit fee of $252 (proposed in a separate rulemaking published elsewhere in this issue of the Texas Register), the elimination of the per-foot charge paid to the department, coupled with the permittee’s ability to both charge a fee for nuisance control services and sell the meat and hides, means that the net effect of the proposed rule on small and microbusinesses and persons required to comply will be positive. Accordingly, the department has not prepared a regulatory flexibility analysis under Government Code, Chapter 2006.

         There will be an economic cost for persons to comply with the rule as proposed, namely, the $252 fee to obtain the nuisance alligator control permit, and the cost of recordkeeping, which is estimated to be less than $100 per year per permittee.

         (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 rule 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 rule.

         (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 rule.

         (F) The department has determined that the proposed rule is in compliance with Government Code, §505.11 (Actions and Rules Subject to the Coastal Management Program) and §505.22 (Consistency Required for New Rules and Rule Amendments Subject to the Coastal Management Program).

 4. Request for Public Comment.

         Comments on the proposed rule may be submitted to Robert Macdonald, Texas Parks and Wildlife Department 4200 Smith School Road, Austin, Texas, 78744; (512) 389-4775 (e-mail: robert.macdonald@tpwd.state.tx.us).

5. Statutory Authority.

         The new rule is proposed under the authority of Parks and Wildlife Code, §65.003,  which authorizes the commission to regulate taking, possession, propagation, transportation, exportation, importation, sale, and offering for sale of alligators, alligator eggs, or any part of an alligator that the commission considers necessary to manage this species, including regulations to provided for the periods of time when it is lawful to take, possess, sell, or purchase alligators, alligator hides, alligator eggs, or any part of an alligator; and limits, size, means, methods, and places in which it is lawful to take or possess alligators, alligator hides, alligator eggs, or any part of an alligator; and control of nuisance alligators.

         The proposed new rule affects Parks and Wildlife Code, Chapter 65.

         §65.363. Nuisance Alligator Control.

                 (a) Permit Required. Except as provided in §65.49(g) of this title (relating to Alligators), no person may take, kill, transport, sell, or release a nuisance alligator, or offer to take, kill, transport, sell, or release a nuisance alligator unless that person possesses a valid nuisance alligator control permit issued by the department.

                 (b) Permit Application and Issuance.

                         (1) The department may issue a nuisance alligator control permit to a person who has:

                                  (A) submitted a completed application on a form supplied by the department;

                                  (B) completed a department-administered course on nuisance alligator control;

                                  (C) taken a department-administered examination and obtained a minimum passing score as determined by the department; and

                                  (D) paid the nonrefundable fee prescribed by Chapter 53, Subchapter A of this title (relating to Fees).

                         (2) In order to be considered for permit issuance in any given year, an applicant shall submit a completed application to the department by no later than November 1.

                         (3) The department may refuse to issue a permit to any person who, in the department’s determination, lacks the skill, experience, or aptitude to adequately perform the activities typically involved in nuisance alligator control.

                 (c) Period of Validity. A nuisance alligator control permit is valid from the date of issuance through August 31 of the following year.

                 (d) Permit Privileges and Restrictions.

                         (1) A permittee under this section may:

                                  (A)  contract directly with a landowner or landowner’s authorized agent (including a political subdivision, governmental entity, or property owner’s association, as defined by Property Code, §2004.004), for a fee or other compensation to be determined by the parties involved, for the removal of a nuisance alligator or alligators;

                                  (B) capture or kill a nuisance alligator at any time of day;

                                  (C) retain and sell nuisance alligators, alive or dead, taken under a nuisance alligator control permit as provided under §65.357 of this title (relating to Purchase and Sale of Alligators); and

                                  (D) release nuisance alligators in areas of suitable habitat with the prior written approval of the department and the owner (or the owner’s authorized agent) of the property where the release occurs.

                         (2) A permittee may not:

                                  (A) capture or kill an alligator that is not a nuisance alligator; or

                                  (B) use any means, method, or procedure not approved by the department for the capture, immobilization, transport, or dispatch of a nuisance alligator.

                 (e) Tagging Requirements. All provisions of this subchapter applicable to the tagging of alligators apply to alligators taken under a nuisance alligator control permit.

                 (f) Reporting, Notification, and Recordkeeping Requirements.

                         (1) Landowner authorization. No permittee may engage in nuisance alligator control activities unless the written authorization of the landowner, the landowner’s authorized agent, or a government official acting within the scope of official duty has been obtained. The authorization shall contain, at a minimum, the date, the name, address, phone number, and Texas Department of Public Safety driver’s license or identification card number (or, if the person is not a Texas resident, similar documentation from the person’s state of residence) of the person with whom the permittee has contracted for nuisance alligator control; and shall be signed by the landowner, agent, or official. The permittee shall physically possess the authorization required by this paragraph:

                                  (A) at all times that the permittee is engaged in or conducts nuisance alligator control activities; and

                                  (B) subsequent to the capture of a nuisance alligator, at all times the permittee is in possession of the alligator, dead or alive, until the alligator is sold, transferred to another person legally permitted to possess the alligator, or released.

                         (2)  Daily Log. A permittee shall continuously maintain and possess upon their person while engaged in any activity governed by this subchapter a completed daily log on a form prescribed by the department, indicating:

                                  (A) the date, location, and department-assigned case number for each nuisance alligator complaint responded to by the permittee as a result of a referral from the department;

                                  (B) the date and location of each nuisance alligator captured by the permittee;

                                  (C) the sex and length of each alligator captured;

                                  (D) the disposition of each alligator captured, to include:

                                          (i)  the means of dispatch, if lethal control is employed; and

                                          (ii) if the alligator is lawfully sold or lawfully transferred to another person, the name and applicable permit number of the person to whom the nuisance alligator is sold or transferred.

                         (3) Record of Sale or Transfer. A permittee shall retain an invoice or sales receipt for each alligator sold or transferred to another person.

                         (4) Record Retention. All records and documents required by this section shall be retained and kept available for inspection upon request of a department employee acting within the official scope of duty for a two-year period immediately following the expiration of the period of validity of the permit under which they are required to be kept.

                         (5) Reporting.

                                  (A) A permittee shall complete a Nuisance Alligator Hide Tag Report (PWD-305) immediately upon the take of a nuisance alligator and shall submit the report to the department within seven days.

                                  (B) A permittee shall submit completed quarterly reports to the department by March 15, June 15, September 15, and December 15. The reports must be on a form supplied or approved by the department and must be submitted even if no nuisance alligators were taken by the permittee.

                                  (C) The department may refuse to issue an initial or subsequent permit to any person who is not in compliance with the provisions of this paragraph.

                 (g) Denial of Permit Issuance. The department may refuse permit issuance to any person who has been convicted of, pleaded nolo contendere to, or received deferred adjudication for:

                                  (1) a violation of Parks and Wildlife Code, Chapter 43, Subchapters C, E, L, or R, or Parks and Wildlife Code, Chapter 65;

                                  (2) a violation of Parks and Wildlife Code that is a Class B misdemeanor, a Class A misdemeanor, or felony; or

                                  (3) a violation of Parks and Wildlife Code, §63.002; or

                                  (4) convicted, pleaded nolo contendere, received deferred adjudication or pre-trial diversion, or assessed a civil penalty for a violation of 16 U.S.C. §§3371-3378 (the Lacey Act).

                 (h) Review of Agency Decision. An applicant for a permit under this subchapter may request a review of a decision of the department to refuse issuance of a permit.

                         (1) An applicant seeking review of a decision of the department with respect to permit issuance under this subchapter shall first contact the department within 10 working days of being notified by the department of permit denial.

                         (2) The department shall schedule a review within 10 days of receipt of a request for a review. The department shall conduct the review and notify the applicant of the results within 45 working days of receiving a request for review.

                         (3) The request for review shall be presented to a review panel. The review panel shall consist of the following, or their designees:

                                  (A) the Deputy Executive Director for Fisheries and Wildlife;

                                  (B) the Director of the Wildlife Division; and

                                  (C) the Deputy Division Director of the Wildlife Division.

                         (4) The decision of the review panel is the final department decision.

                 (i) Prohibited Acts. It is an offense for a permittee to:

                         (1) violate a provision of this subchapter;

                         (2) violate a condition of a permit issued under this subchapter; or

                         (3) treat or allow the treatment of an alligator in a cruel manner as defined in Penal Code, §42.09.

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

         Issued in Austin, Texas, on


Commission Agenda Item No. 9
Exhibit B

NUISANCE ALLIGATOR CONTROL RULE
PERMIT FEE
PROPOSAL PREAMBLE

1. Introduction.

         The Texas Parks and Wildlife Department proposes an amendment to §53.8, concerning Alligator Licenses, Permits, Stamps, and Tags. The proposed amendment would implement a fee of $252 for the nuisance alligator control permit and clarify that there is no fee for the nuisance alligator control tag for alligators taken under a nuisance alligator control permit. In another rulemaking published elsewhere in this issue of the Texas Register, the department proposes rules regarding a nuisance alligator control permits.

         The permit fee amount of $252 was selected because it is identical to the current fee for an alligator farmer’s permit and is believed to be sufficient to both recover the department’s overhead costs for administering the program and not function as a disincentive for prospective permittees.

         All alligators harvested in Texas are required to be tagged with a federal CITES (Convention on International Trade in Endangered Species) hide tag, which is necessary for Texas-harvested alligators to be certified as legal for entry into international trade. The department currently does not charge a fee for the CITES hide tag required for nuisance alligator control hunters.  The proposal merely clarifies that there will continue to be no fee for the CITES hide tag for nuisance alligator control under the proposed new regulatory structure for handling nuisance alligators. Staff believes that a no-charge hide tag will function as an additional inducement for persons to become permitted as nuisance control hunters.

2. Fiscal Note.

         Mitch Lockwood, Big Game Program Director, has determined that for each of the first five years that the rule as proposed is in effect, there will be fiscal implications to state government as a result of enforcing or administering the rule. Those implications are expected to be positive, since the nuisance alligator control permit is intended to eliminate the substantial costs incurred by the department in administering the present nuisance alligator control protocol. The department expended approximately $121,000 in salary in Fiscal Year 2009 (the last full fiscal year for which data is available) on nuisance alligator control activities, primarily in the form of biologist and game warden time (travel, investigation, and disposition) for approximately 1,100 nuisance alligator complaints. This estimate was derived by multiplying the number of complaints by an estimated four-hour commitment of staff time per complaint at the average hourly salary of a field game warden ($25.66), which represents the majority of nuisance alligator control activities undertaken by the department. This estimate does not include fuel, equipment, or administrative costs, which are not segregated at a scale fine enough to isolate those costs with respect to nuisance alligator control administration.

         There will be no fiscal implications to other units of state or local government as a result of administering or enforcing the proposed rule.

         Although the department will incur costs associated with providing mandatory nuisance alligator control hunter training (approximately $500 per student), data entry and administrative expenses related to data analysis (approximately $15,000 per year), and loss of revenue from the elimination of control hunter payments to the department (approximately $9,836 per year, using the last four years of data), that cost is expected to be significantly lower than the current costs of administering nuisance alligator control activities.   

3. Public Benefit – Cost Note.

         Mr. Lockwood has also determined that for each of the first five years the rule as proposed is in effect:

         (A) The public benefit anticipated as a result of enforcing or administering the rule as proposed will be the more efficient and effective control of nuisance alligators.

         (B) Under the 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 affect on small businesses and micro-businesses. As required by Government Code, §2006.002(g), the Office of the Attorney General has prepared guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small 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, commission 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 most if not all businesses affected by the proposed rule qualify as small or microbusinesses. The department also has determined that there will be no adverse economic effects on small businesses, microbusinesses, and persons required to comply with the amendments as proposed. Although the proposed rule would impose a permit fee of $252, the elimination of the per-foot charge paid to the department, coupled with the permittee’s ability to both charge a fee for nuisance control services and sell the meat and hides, means that the net effect of the proposed rule on small and microbusinesses and persons required to comply will be positive. Accordingly, the department has not prepared a regulatory flexibility analysis under Government Code, Chapter 2006.

         There will be an economic cost for persons to comply with the rule as proposed, namely, the $252 fee to obtain the nuisance alligator control permit.

         (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 rule 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 rule.

         (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 rule.

         (F) The department has determined that the proposed rule is in compliance with Government Code, §505.11 (Actions and Rules Subject to the Coastal Management Program) and §505.22 (Consistency Required for New Rules and Rule Amendments Subject to the Coastal Management Program).

4. Request for Public Comment.

         Comments on the proposed rule may be submitted to Robert Macdonald, Texas Parks and Wildlife Department 4200 Smith School Road, Austin, Texas, 78744; (512) 389-4775 (e-mail: robert.macdonald@tpwd.state.tx.us).

5. Statutory Authority.

         The amendment is proposed under the authority of Parks and Wildlife Code, §65.003,  which authorizes the commission to regulate taking, possession, propagation, transportation, exportation, importation, sale, and offering for sale of alligators, alligator eggs, or any part of an alligator that the commission considers necessary to manage this species, including regulations to provided for the periods of time when it is lawful to take, possess, sell, or purchase alligators, alligator hides, alligator eggs, or any part of an alligator; and limits, size, means, methods, and places in which it is lawful to take or possess alligators, alligator hides, alligator eggs, or any part of an alligator; and control of nuisance alligators.

         The proposed amendment affects Parks and Wildlife Code, Chapter 53.

         §53.8. Alligator Licenses, Permits, Stamps, and Tags.

                 (a) resident retail alligator dealer’s permit — $126;

                 (b) nonresident retail alligator dealer’s permit — $504;

                 (c) resident wholesale alligator dealer’s permit — $252;

                 (d) nonresident wholesale alligator dealer’s permit — $1,008;

                 (e) alligator import permit — $105;

                 (f) alligator farmer permit — $252;

                 (g) nuisance alligator control permit — $252;

                 (h)[(g)] alligator nest stamp — $63;

                 (i)[(h]) wild caught alligator hide tag — $21;

                 (j)[(i)] farm raised alligator hide tag — $5;

                 (k)[(j)] commercial wildlife management area alligator hide tag — $126;

                 (l)[(k)] alligator export fee — $5 per alligator, except for alligators accompanied by a valid department issued hide tag; [and]

                 (m)[(l)] alligator management tag — $6; and

                 (n) nuisance alligator control tag — free.


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