Committee Agenda Item No. 1
Presenter:  Carter Smith

Regulations Committee
Update on TPWD Progress in Implementing the
TPWD Land and Water Resources Conservation and Recreation Plan
November 2, 2011

I.      Executive Summary:  Executive Director Carter Smith will briefly update the Commission on the status of the agency’s efforts to implement the Land and Water Resources Conservation and Recreation Plan (the “Plan”).

II.     Discussion:  In 2001, the 77th Texas Legislature directed that the Texas Parks and Wildlife Department (TPWD) develop a Land and Water Resources Conservation and Recreation Plan (Tex. Park & Wild. Code §11.104).  In 2002, the Texas Parks and Wildlife Commission (the Commission) adopted the first Plan.  A revised Plan was adopted by the Commission in January 2005.  In November 2009, the Commission approved a new Plan effective January 1, 2010.  The 2010 Plan is available on the TPWD web site.  Executive Director Carter Smith will update the Regulations Committee on TPWD’s recent progress in achieving the Plan’s goals, objectives and deliverables as they relate to the Regulations Committee.

The Plan consists of the following four goals:

1. Practice, Encourage and Enable Science-based Stewardship of Natural and Cultural Resources
2. Increase Access To and Participation In the Outdoors
3. Educate, Inform and Engage Texas Citizens in Support of Conservation and Recreation
4. Employ Efficient, Sustainable and Sound Business Practices

Committee Agenda Item No. 2
Presenter:  Clayton Wolf

Regulation Committee
Update on Permits to Control Protected Wildlife — Depredation Permits
November 2, 2011

I.       Executive Summary:  This item is a briefing on the status of efforts to control white-tailed deer causing crop depredation.

II.      Discussion:  In 2009, the 81st Texas Legislature enacted House Bill 1965, which amended Parks and Wildlife Code, Chapter 43, Subchapter H, to alter statutory provisions governing the lethal control of wildlife protected by the Parks and Wildlife Code that is causing serious damage to agricultural, horticultural, or aquacultural interests.  Subsequently, on August 27, 2009, the Commission adopted rules to implement the changes prescribed by House Bill 1965.  This briefing item will summarize significant changes in the Depredation Permit approval and issuance process as a result of the statutory and regulatory changes, and summarize permit issuance statistics.

Committee Agenda Item No. 3
Presenter:  Alan Cain

Regulations Committee
Implementation of Legislation during the 82nd Texas Legislative Session
Senate Bill 498 regarding Permits to Trap, Transplant, and
Process Surplus White-tailed Deer
November 2, 2011

I.       Executive Summary:  This item seeks permission to publish a proposed amendment to the rules governing permits to trap, transplant, and process surplus white-tailed deer (TTP permits). The proposed amendment would establish the conditions under which a qualified individual could be issued a TTP permit.

II.      Discussion:  Parks and Wildlife Code, Chapter 43, Subchapter E, authorizes the Commission to establish permits and promulgate rules governing the trapping, transporting, and processing of surplus white-tailed deer.  Prior to the enactment of Senate Bill 498 by the 82nd Texas Legislature, issuance of TTP permits was statutorily limited to political subdivisions or property owners’ associations.  Under the provisions of SB 498, Parks and Wildlife Code, Chapter 43, Subchapter E, was amended to require the Commission to adopt rules for determining the circumstances under which a qualified individual may obtain a TTP permit.  The proposed amendments would establish the specific conditions under which a qualified individual could be issued a TTP permit.

Attachments – 1

Committee Agenda Item No. 3
Exhibit A

PERMITS TO TRAP, TRANSPORT, AND PROCESS
SURPLUS WHITE-TAILED DEER
PROPOSAL PREAMBLE

1. Introduction.

         The Texas Parks and Wildlife Department proposes an amendment to §65.104, concerning Permits to Trap, Transport, and Process Surplus White-tailed Deer. The proposed new rule would establish the conditions under which a qualified individual could be issued a TTP permit.

         Parks and Wildlife Code, Chapter 43, Subchapter E, authorizes the Texas Parks and Wildlife Commission to establish permits and promulgate rules governing the trapping, transporting, and processing of surplus white-tailed deer by property owners’ associations and political subdivisions. Under the provisions of Senate Bill 498, enacted by the 82nd Texas Legislature, Parks and Wildlife Code, Chapter 43, Subchapter E, was amended to require the commission to adopt rules for determining the circumstances under which a qualified individual (in addition to property owners’ associations and political subdivisions) may obtain a TTP permit.

         The proposed amendment would add the statutory definition of “qualified individual,” as added by SB 498, and stipulate the circumstances under which a qualified individual may obtain a TTP permit. The circumstances would require a qualified individual to have been a qualified individual for at least the two-year period immediately preceding an application for a TTP; to have been in reasonable compliance, as determined by the department, with the recommendations of the wildlife management plan for the two years immediately preceding an application for a TTP; and to have a wildlife management plan that recommends the harvest of at least 100 deer in the year for which a TTP is sought. The two-year period for maintaining and reasonably complying with the recommendations of a wildlife management plan was selected because the department intends to ensure that a reasonable and genuine effort has been made to control deer populations by means of traditional hunting activities before authorizing measures that would preempt traditional hunting. The 100-deer harvest recommendation threshold was selected because the department intends for the rule to function as a method for landowners to reduce surplus populations on a single property when traditional hunting pressure is inadequate, rather than a method to remove nuisance deer in an area of multiple properties, and to restrict TTP activities to properties where the removal is biologically efficacious.

2. Fiscal Note.

          Alan Cain, White-tailed Deer Program Leader, has determined that for each of the first five years that the rule as proposed is in effect, there will be no fiscal implications to state and local governments as a result of enforcing or administering the rule.

3. Public Benefit – Cost Note.

         Mr. Cain 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 conformity of department regulations with the provisions of the Texas Parks and Wildlife Code.

         (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 the rule as proposed would not affect any small or microbusinesses. Accordingly, the department has not prepared a regulatory flexibility analysis under Government Code, Chapter 2006.

         (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 rules.

         (E) The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rules.

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, §43.0612, as amended by Senate Bill 498, enacted by the 82nd Texas Legislature, Regular Session (2011), which requires the commission to adopt rules for determining the circumstances under which a qualified individual may obtain a TTP permit.

         The proposed amendment affects Parks and Wildlife Code, Chapter 43, Subchapter E.

         §65.101. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. All other words and terms shall have the meanings assigned by Parks and Wildlife Code.

                 (1) Amendment — A specific alteration or revision of currently permitted activities, the effect of which does not constitute, as determined by the department, a new trapping, transporting and transplanting operation.

                 (2) Certified Wildlife Trapper — An individual who receives a department-issued permit pursuant to this section.

                 (3) Natural Habitat — The type of site where a game animal or game bird normally occurs and existing game populations are not dependent on manufactured feed or feeding devices for sustenance.

                 (4) Nuisance Squirrel — A squirrel that is causing damage to personal property.

                 (5) Overpopulation — A condition where the habitat is being detrimentally affected by high animal densities, or where such condition is imminent.

                 (6) Permittee — Any person authorized by a permit to perform activities governed by this subchapter.

                 (7) Permit year — September 1 of any year to August 31 of the following year.

                 (8) Processing facility — The specific destination of white-tailed deer trapped and transported pursuant to a permit to trap, transport, and process surplus white-tailed deer where deer will be processed for consumption.

                 (9) Qualified individual—An individual who has a wildlife management plan approved by the department.

                 (10)[(9)] Recruitment — The Fall survey estimate of the number of fawns (any deer less than one year of age) on a property.

                 (11)[(10)] Release Site — The specific destination of game animals or game birds to be relocated pursuant to a permit issued under this subchapter.

                 (12)[(11)] Stocking Policy — The policy governing stocking activities made or authorized by the department as specified in §§52.101-52.105, 52.201, 52.202, 52.301 and 52.401 of this title (relating to Stocking Policy).

                 (13)[(12)] Supervisory permittee — A person who supervises the activities of permittees authorized to conduct activities.

                 (14)[(13)] Trap Site — The specific source of game animals or game birds to be relocated pursuant to a permit issued under this subchapter.

                 (15)[(14)] Wildlife Stocking Plans — The stocking plan for a:

                         (A) trap site consists of the biological information about the trap site required by the department on the application for a permit under this subchapter; and

                         (B) release site is the same as that required for a wildlife management plan under the provisions of §65.25 of this title (relating to Wildlife Management Plan).

         §65.104. Permit to Trap, Transplant, and Process Surplus White-Tailed Deer.

                 (a) All deer trapped and transported pursuant to this section shall be delivered to a processing facility selected by the applicant and approved by the department. Acceptable processing facilities are:

                         (1) Texas Department of Criminal Justice penal facilities located in Palestine and Amarillo;

                         (2) other government-sanctioned penal facilities in the state of Texas;

                         (3) independent facilities in the state of Texas inspected for food safety by the Texas Department of Health; and

                         (4) any other processing facility approved by the department.

                 (b) All carcasses shall be utilized, either by a penal facility, or by donation to a department-approved charitable organization.

                 (c) Deer may be euthanized at either the trap site or the processing facility. If deer are euthanized at the trap site, carcasses must be maintained in edible condition.

                 (d) The permittee is responsible for establishing an acceptable schedule for delivery of deer with the processing facility. However, transport of live, trapped deer shall begin within 20 hours of trapping.

                 (e) The applicant shall specify whether a trap site is the entire political subdivision or property owners’ association, or one or more individual tracts within the boundaries of the political subdivision or property owners’ association. If the trap site is an individual tract, it must be identified on the permit application.

                 (f) The department may issue a permit under this section to a qualified individual, provided, with respect to the tract of land for which a TTP is sought:

                         (1) the person has been a qualified individual for at least the two-year period immediately preceding an application for a TTP;

                         (2) the qualified individual has been in reasonable compliance, as determined by the department, with the recommendations of the wildlife management plan for each of the two years immediately preceding an application for a TTP; and

                         (3) the qualified individual’s wildlife management plan recommends the harvest of at least 100 deer in the year for which a TTP is sought.

                 (g)[(f)] The department may, at its discretion, require the applicant to supply additional information concerning the proposed trapping, transporting, and processing activity when deemed necessary to carry out the purposes of this subchapter.

Committee Agenda Item No. 4
Presenter:  Wendy Connally

Regulations Committee
Threatened and Endangered Nongame Species
November 2, 2011

I.       Executive Summary:  This item seeks permission to publish proposed amendments to the department’s lists of federally endangered and state threatened nongame wildlife.  The proposed amendment would:

• Remove the brown pelican from the list of federally endangered species;
• Add two species of aquatic beetles to the list of federally endangered species;
• Update taxonomic nomenclature for two species of snakes, one species of bird, and one species of amphibian.

II.      Discussion:  Under Parks and Wildlife Code, Chapter 68, a species of fish or wildlife indigenous to Texas is endangered if it appears on the United States List of Endangered Native Fish and Wildlife or is on a list of species threatened with statewide extinction as filed by the director of the department with the Texas Secretary of State.  As a matter of policy, the federal list is maintained by rule as a convenience to the public.

The brown pelican, Pelecanus occidentalis was federally listed as an endangered species in 1970.  Due to successful recovery efforts, it was delisted in 2009.  The proposed amendments would remove the brown pelican from the endangered species list maintained by rule. Two species of aquatic beetles (Comal Springs riffle beetle, Comal Springs dryopid beetle) that have been listed by the U.S. Fish and Wildlife Service as endangered are not reflected on the state’s list of endangered species. The proposed amendments would add those species to the state endangered list.

Attachments – 1

Committee Agenda Item No. 4
Exhibit A

THREATENED AND ENDANGERED SPECIES RULES
PROPOSAL PREAMBLE

1.  Introduction.

         The Texas Parks and Wildlife Department (the department) proposes amendments to §65.175 and §65.176, concerning Threatened and Endangered Nongame Species.

         The proposed amendment to §65.175, concerning Threatened Species, would clarify that there are two subspecies of scarlet snake (Cemophora coccinea copei and Cemophora coccinea lineri) and that only one subspecies of northern cat-eyed snake (Leptodeira septentrionalis septentrionalis) is affected by the listing of that species.

         The proposed amendment to §65.176, concerning Endangered Species, would remove the brown pelican (Pelicanus occidentalis), add two species of aquatic animals (the Comal Springs riffle beetle (Heterelmis comalensis) and Comal Springs dryopid beetle (Stygoparnus comalensis), and update the scientific names for the Houston toad and golden-cheeked warbler.

         Under Parks and Wildlife Code, Chapter 68, a species is endangered under state law if it 1) indigenous to Texas and listed by the federal government as endangered; or 2) designated by the executive director of the Texas Parks and Wildlife Department as “threatened with statewide extinction.” At the current time, the department maintains a single list of endangered species that contains only those species indigenous to Texas listed by the federal government as endangered. The only species considered as “threatened with statewide extinction” under state law are those species listed by the federal government. The Comal Springs riffle beetle and the Comal Springs dryopid beetle were listed as endangered by the U.S. Fish and Wildlife Service on July 17, 1997 and were inadvertently not added to the state endangered list at the time. The proposed amendment rectifies that oversight. The brown pelican was removed from the federal list of endangered species in November of 2009.

         From time to time the scientific community reclassifies an organism in light of consensus and/or emerging science. The Houston toad, formerly classified as Bufo houstonensis, and the golden-cheeked warbler, formerly classified as Dendroica chrysoparia, have been reclassified; therefore the proposed amendment would reflect those changes, listing the species as Anaxyrus houstonensis and Setophaga chrysoparia, respectively.

         Under Chapter 68, the department is not required to list federally endangered species by rule; however, whenever the federal government modifies the list of endangered species, the executive director is required to file an order with the secretary of state accepting the modification. The department is required to provide notice of intent to file an order making certain modifications to the list at least 60 days prior to the filing of the order. This rulemaking and a miscellaneous document published elsewhere in this issue of the Texas Register constitute the department’s notice of intent to modify the endangered species list, as required under Chapter 68..

2. Fiscal Note.

         Ms. Wendy Connally, Texas Conservation Action Plan Coordinator, has determined that for each of the first five years the amendments as proposed are in effect, there will be no fiscal implications to state or local government as a result of enforcing or administering the rules.

3. Public Benefit/Cost Note.

         Ms. Connally also has determined that for each of the first five years the rules as proposed are in effect:

         (A) The public benefit anticipated as a result of enforcing or administering the rules as proposed will be the protection of rare species, the opportunity for the public to enjoy the regulated use of recovered species, and regulations that are accurate and informative.

         (B) There will be no adverse economic impact on persons required to comply with the rules as proposed.

         (C) 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 effect 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 there will be no adverse economic impacts on small businesses or microbusinesses as a result of the proposed amendments. Accordingly, the department has not prepared a regulatory flexibility analysis under Government Code, Chapter 2006.

         (C)  The department has not drafted a local employment impact statement under the Administrative Procedures Act, §2001.022, as the agency has determined that the rules as proposed will not impact local economies.

         (D)  The department has determined that Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rules.

         (E) The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rules.

4. Request for Public Comment.

         Comments on the proposed rules may be submitted to Ms. Wendy Connally, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4975, e-mail: wendy.connally@tpwd.state.tx.us.

5. Statutory Authority.

         The amendments are proposed under Parks and Wildlife Code, Chapter 67, which authorizes the commission to establish any limits on the taking, possession, propagation, transportation, importation, exportation, sale, or offering for sale of nongame fish or wildlife that the department considers necessary to manage the species, and Chapter 68, which authorizes regulations necessary to administer the provisions of Chapter 68 and to attain its objectives, including regulations to govern the  publication and distribution of lists of species and subspecies of endangered fish or wildlife and their products and limitations on the capture, trapping, taking, or killing, or attempting to capture, trap, take, or kill, and the possession, transportation, exportation, sale, and offering for sale of endangered species.

         The proposed amendments  affect Parks and Wildlife Code, Chapters 67 and 68.

         §65.175. Threatened Species. A threatened species is any species that the department has determined is likely to become endangered in the future. The following species are hereby designated as threatened species:

State-Listed Threatened Species in Texas

MAMMALS

• Margay Leopardus (Felis (=Felis) wiedii)
• Louisiana Black Bear (Ursus americanus luteolus)
• Black Bear (Ursus americanus)
• White-nosed Coati (Nasua narica)
• Southern Yellow Bat (Lasiurus ega)
• Spotted bat (Euderma maculatum)
• Rafinesque’s Big-eared Bat (Corynorhinus rafinesquii)
• Texas Kangaroo Rat (Dipodomys elator)
• Coues’ Rice Rat (Oryzomys couesi)
• Palo Duro Mouse (Peromyscus truei comanche)
• Gervais’ Beaked Whale (Mesoplodon europaeus)
• Goose-beaked Whale (Ziphius cavirostris)
• Pygmy Sperm Whale (Kogia breviceps)
• Dwarf Sperm Whale (Kogia simus)
• Killer Whale (Orcinus orca)
• False Killer Whale (Pseudorca crassidens)
• Short-finned Pilot Whale (Globicephala macrorhynchus)
• Pygmy Killer Whale (Feresa attenuata)
• Atlantic Spotted Dolphin (Stenella frontalis)
• Rough-toothed Dolphin (Steno bredanensis)

BIRDS

• Bald Eagle (Haliaeetus leucocephalus)
• Common Black-hawk (Buteogallus anthracinus)
• Gray Hawk (Asturina nitidus)
• White-tailed Hawk (Buteo albicaudatus)
• Zone-tailed Hawk (Buteo albonotatus)
• Peregrine Falcon (Falco peregrinus anatum)
• Cactus Ferruginous Pygmy-owl (Glaucidium brasilianum cactorum)
• Mexican Spotted Owl (Strix occidentalis lucida)
• Piping Plover (Charadrius melodus)
• Reddish Egret (Egretta rufescens)
• White-faced Ibis (Plegadis chihi)
• Wood Stork (Mycteria americana)
• Swallow-tailed Kite (Elanoides forficatus)
• Sooty Tern (Sterna fuscata)
• Northern Beardless-tyrannulet(Camptostoma imberbe)
• Rose-throated Becard (Pachyramphus aglaiae)
• Tropical Parula (Parula pitiayumi)
• Bachman’s Sparrow (Aimophila aestivalis)
• Texas Botteri’s Sparrow (Aimophila botterii texana)
• Arizona Botteri’s Sparrow (Aimophila botterii arizonae)

REPTILES

• Green Sea Turtle (Chelonia mydas)
• Loggerhead Sea Turtle (Caretta caretta)
• Alligator Snapping Turtle (Macrochelys temminckii)
• Cagle’s Map Turtle (Graptemys caglei)
• Chihuahuan Mud Turtle (Kinosternon hirtipes murrayi)
• Texas Tortoise (Gopherus berlandieri)
• Reticulated Gecko (Coleonyx reticulatus)
• Reticulate Collared Lizard (Crotaphytus reticulatus)
• Texas Horned Lizard (Phrynosoma cornutum)
• Mountain Short-horned Lizard (Phrynosoma hernandesi)
• Scarlet Snake (Cemophora coccinea copei, C. c. lineri)
• Black-striped Snake (Coniophanes imperialis)
• Indigo Snake (Drymarchon corais)
• Speckled Racer Drymobius margaritiferus)
• Northern Cat-eyed Snake (Leptodeira septentrionalis septentrionalis)
• Louisiana Pine Snake (Pituophis ruthveni)
• Brazos Water Snake (Nerodia harteri)
• Smooth Green Snake (Liochlorophis vernalis)
• Trans-Pecos Black-headed Snake (Tantilla cucullata)
• Chihuahuan Desert Lyre Snake (Trimorphodon vilkinsonii)
• Timber (Canebrake) Rattlesnake (Crotalus horridus)

AMPHIBIANS

• San Marcos Salamander (Eurycea nana)
• Cascade Caverns Salamander (Eurycea latitans)
• Comal Blind Salamander (Eurycea tridentifera)
• Blanco Blind Salamander (Eurycea robusta)
• Black-spotted Newt (Notophthalmus meridionalis)
• South Texas Siren (large form) (Siren sp.1)
• Mexican Tree Frog (Smilisca baudinii)
• White-lipped Frog (Leptodactylus fragilis)
• Sheep Frog (Hypopachus variolosus)
• Mexican Burrowing Toad (Rhinophrynus dorsalis)

FISHES

• Shovelnose Sturgeon (Scaphirhynchus platorynchus)
• Paddlefish (Polyodon spathula)
• Mexican Stoneroller (Campostoma ornatum)
• Rio Grande Chub (Gila pandora)
• Blue Sucker (Cycleptus elongatus)
• Creek Chubsucker (Erimyzon oblongus)
• Toothless Blindcat (Trogloglanis pattersoni)
• Widemouth Blindcat (Satan eurystomus)
• Conchos Pupfish (Cyprinodon eximius)
• Pecos Pupfish (Cyprinodon pecosensis)
• Rio Grande Darter (Etheostoma grahami)
• Blackside Darter (Percina maculata)
• Opossum Pipefish (Microphis brachyurus)
• River Goby (Awaous banana)
• Mexican Goby (Ctenogobius claytonii)
• San Felipe Gambusia (Gambusia clarkhubbsi)
• Blotched Gambusia (Gambusia senilis)
• Devils River Minnow (Dionda diaboli)
• Arkansas River Shiner (Notropis girardi)
• Bluehead Shiner (Pteronotropis hubbsi)
• Chihuahua Shiner (Notropis chihuahua)
• Bluntnose Shiner (Notropis simus)
• Proserpine Shiner (Cyprinella proserpina)

MOLLUSCS

• False spike (Quadrula mitchelli)
• Golden orb (Quadrula aurea)
• Louisiana Pigtoe (Pleurobema ridellii)
• Mexican fawnsfoot (Truncilla cognata)
• Salina mucket (Potamilus metnecktayi)
• Sandbank pocketbook (Lampsilis satura)
• Smooth pimpleback (Quadrula houstonensis)
• Southern hickorynut (Obovaria jacksoniana)
• Texas fatmucket (Lampsilis bracteata)
• Texas fawnsfoot (Truncilla macrodon)
• Texas heelsplitter (Potamilus amphichaenus)
• Texas hornshell (Popenaias popeii)
• Texas pigtoe (Fusconaia askewi)
• Texas pimpleback (Quadrula petrina)
• Triangle pigtoe (Fusconaia lananensis)

          §65.176. Endangered Species. The following species are endangered species.

Endangered Species

MAMMALS

• Mexican long-nosed Bat (Leptonycteris nivalis)
• Jaguar (Panthera onca)
• Jaguarundi  (Herpailurus (=Felis) yagouaroundi cacomii)
• West Indian Manatee (Trichecus manatus)
• Ocelot (Leopardus (=Felis) pardalis)
• Finback Whale (Balaenoptera physalus)
• Humpback Whale (Megaptera novaeangliae)
• Gray Wolf (Canis lupus)
• Red Wolf (Canis rufus)

BIRDS

• Whooping Crane (Grus americana)
• Eskimo Curlew (Numenius borealis)
• Northern Aplomado Falcon (Falco femoralis septentrionalis)
• Southwestern Willow Flycatcher (Empidonax traillii extimus)
• [Brown Pelican (Pelecanus occidentalis)]
• Attwater’s Prairie-chicken (Tympanuchus cupido attwateri)
• Interior Least Tern (Sterna antillarum athalassos)
• Black-capped Vireo (Vireo atricapilla)
• Golden-cheeked Warbler (Dendroica chrysoparia)
• Red-cockaded Woodpecker (Picoides borealis)

REPTILES

• Hawksbill Sea turtle (Eretmochelys imbricata)
• Kemp’s Ridley Sea turtle (Lepidochelys kempii)
• Leatherback Sea turtle (Dermochelys coriacea)

AMPHIBIANS

• Barton Springs Salamander (Eurycea sosorum)
• Texas blind Salamander (Typhlomolge rathbuni)
• Houston Toad (Bufo houstonensis)

FISHES

• Fountain Darter (Etheostoma fonticola)
• Big Bend Gambusia (Gambusia gaigei)
• Clear Creek Gambusia (Gambusia heterochir)
• Pecos Gambusia (Gambusia nobilis)
• San Marcos Gambusia (Gambusia georgei)
• Rio Grande Silvery Minnow (Hybognathus amarus)
• Comanche Springs Pupfish (Cyprinodon elegans)
• Leon Springs Pupfish (Cyprinodon bovinus)
• Smalltooth Sawfish (Pristis pectinata)

MOLLUSCS

• Pecos Assiminea Snail (Assiminea pecos)

CRUSTACEA

• Peck’s Cave Amphipod (Stygobromus (=Stygonectes) pecki)

AQUATIC ANIMALS

• Comal Springs riffle beetle (Heterelmis comalensis)
• Comal Springs dryopid beetle (Stygoparnus comalensis)

         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

Committee Agenda Item No. 5
Presenter:  Mitch Lockwood

Regulations Committee
Nuisance Alligator Control Rules
November 2, 2011

I.       Executive Summary:  This item requests permission to publish proposed new nuisance alligator control rules in the Texas Register for public comment.  The proposed new rules would:

• Replace the current contract-based model with a permit system;
• Authorize permitted nuisance control hunters to contract directly with landowners for the removal of nuisance alligators;
• Provide for the application, issuance, fee, period of validity, privileges, and restrictions of nuisance alligator control permits;
• Prescribe training, reporting, notification, recordkeeping, and tagging requirements for permittees; and
• Set forth conditions for the denial of issuance or renewal of permits and review of such decisions.

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.

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 on a first-refusal basis 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 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 landowner where 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 them 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 duly 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, which is 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; 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 and major violations of the Parks and Wildlife Code (Class B misdemeanors, Class A misdemeanors, and felonies). 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.   

         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, 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 (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;

                                  (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.

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 implement a free hide 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 to create a nuisance alligator control permit.

         The 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. Staff believes that creating 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 theoretical 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 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.

Committee Agenda Item No. 6
Presenter:  Alan Cain
Robert Perez

Regulations Committee
2012-2013 Statewide Hunting Proclamation Preview
November 2, 2011

I.       Executive Summary:  This item apprises the Commission of potential changes to hunting regulations for the 2012-13 season.

II.      Discussion:  Responsibility for establishing seasons, bag limits, and means and methods for taking game animals and game birds is delegated to the Texas Parks and Wildlife Commission under Parks and Wildlife Code, Chapter 61 (Uniform Wildlife Regulatory Act).

Attachments – 1

Potential Changes to Hunting Regulations 2012-13

White-tailed Deer

• Expansion of the season structure currently in effect for Grayson County (archery-only special season with crossbow by upper-limb disability only, full season restricted to archery only with crossbows lawful) to include Dallas, Collin, and Rockwall counties
• Implementation of a full general season in Galveston County with the same season structure as Harris County

Pheasant

• Elimination of season in three coastal counties in response to absence of population

Quail

• Potential alterations to existing season structure

Nonsubstantive, Housekeeping-type Changes

• Language to clarify the counties in which the Landowner Assisted Management Permit is issued
• Removal of a remnant reference to tarpon
• Removal of obsolete regulations regarding the hunting of prairie chickens on managed lands

Committee Agenda Item No. 7
Presenters:  Ken Kurzawski
Robin Riechers
Robert Goodrich

Regulations Committee
2012-2013 Statewide Recreational and
Commercial Fishing Proclamation Preview
November 2, 2011

I.       Executive Summary:  This item apprises the Commission of potential changes to recreational and commercial fishing regulations for the 2012-13 season.

II.      Discussion:  Responsibility for establishing seasons, bag limits, and means and methods for taking freshwater and saltwater fisheries resources is delegated to the Texas Parks and Wildlife Commission under Parks and Wildlife Code, Chapters 61 (Uniform Wildlife Regulatory Act), 66 (Fish), 67 (Nongame Species), 76 (Oysters), 77 (Shrimp), and 78 (Mussels, Clams, and Crabs).  The potential changes are based upon statutory requirements and Commission policy, including scientific investigation and required findings of fact, where applicable.  The potential changes are intended to increase recreational opportunity, decrease regulatory complexity where possible, promote enforcement, and provide for the sound biological management of the fisheries resources of the state.

Attachments – 1

Potential Changes to Fisheries Regulations 2012-13

Inland Fisheries

• Change minimum length limit for largemouth bass back to the statewide 14-inch limit on three reservoirs:  Aquilla Reservoir (Hill County); Lake Fort Phantom Hill (Jones County); and Lake Proctor (Comanche County)
• Change daily bag limit for striped bass back to the statewide five fish limit on Possum Kingdom Reservoir (Palo Pinto County)
• Implement an 18-inch minimum length limit and five-fish daily bag for largemouth bass and prohibit use of juglines, trotlines, and throwlines on Lake Naconiche (Nacogdoches County), a reservoir that will open to angling September 1, 2012
• Restrict the number of fishing devices that a person may use simultaneously while fishing from a dock, pier, jetty, or other man-made structure on a state park

Coastal Fisheries

• Clarify proclamation to indicate that no person shall take or attempt to take any aquatic life by any means in an area that the agency has closed due to a freeze event.
• Designate area near the JFK Causeway as a State Scientific Area for the purposes of seagrass protection.

Law Enforcement

• Require gear tags on certain unattended fishing devices