Commission Agenda Item No. 4
Presenter: Jonathan Warner

Action
Alligator Proclamation
Nuisance Alligator Control Rules
Recommended Adoption of Proposed Changes
May 24, 2018

I.      Executive Summary:  This item seeks adoption of proposed amendments to the Alligator Proclamation. The proposed amendments would affect rules governing nuisance alligator control as follows:

II.     Discussion:  Under Parks and Wildlife Code, Chapter 65, the Texas Parks and Wildlife Commission (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 increasing numbers of nuisance alligator complaints in areas where habitats and development intersect or overlap. The resultant commitment of staff time was untenable; thus, the Commission in 2012 adopted rules to implement a new nuisance alligator control program. Since 2012, Wildlife Division and Law Enforcement Division staff have monitored the program’s effectiveness and noted some areas in need of additional regulatory refinement to enhance program effectiveness and efficiency.   

At the Commission Work Session meeting on March 22, 2018, staff was authorized to publish the proposed rules in the Texas Register for public comment.  The proposed rules appeared in the April 20, 2018 issue of the Texas Register (43 TexReg 2377).  A summary of public comment on the proposed rules will be presented at the time of the hearing.

III.   Recommendation:  Staff recommends that the Commission adopt the proposed motion:

“The Texas Parks and Wildlife Commission adopts amendments to §65.352 and §65.363, concerning the Alligator Proclamation, with changes as necessary to the proposed text as published in the April 20, 2018 issue of the Texas Register (43 TexReg 2377).”

Attachments – 1

  1. Exhibit A – Proposed Preamble

Commission Agenda Item No. 4
Exhibit A

ALLIGATOR PROCLAMATION
PROPOSAL PREAMBLE

1. Introduction.

        The Texas Parks and Wildlife Department proposes amendments to §65.352 and §65.363, concerning the Alligator Proclamation.

        The proposed amendment to §65.352, concerning Definitions, would define “subpermittee” as “a person who is registered with the department to assist a permittee in performing nuisance alligator control activities.” The proposed amendment to §65.363 would authorize permittees to utilize assistants to help perform nuisance alligator control activities and set forth various provisions regarding the registration and supervision of such persons. Thus, a definition is necessary to establish a regulatory identity for such persons.

        The proposed amendment to §65.363, concerning Nuisance Alligator Control, would consist of several components.

        The proposed amendment to subsection (a) would allow permittees to designate subpermittees to assist the permittee in nuisance alligator control activities. The amendment as proposed would require subpermittees to be approved by the department, provide for an application process, require permittees to directly supervise all nuisance control activities conducted by their subpermittees, and stipulate that permittees possess the subpermittee authorization issued by the department on their person at all times that their subpermittees are engaged in nuisance alligator control activities. The department agrees in principle that the nature of nuisance alligator control makes it convenient and in some cases necessary for a nuisance control hunter to utilize assistants. However, because alligators are a public resource that the department is charged with managing and conserving (as well as an export commodity subject to federal and international laws governing trade in endangered species and lookalike species), it is necessary to ensure that subpermittees are appropriately vetted and supervised.

Therefore, the proposed amendment would allow the use of subpermittees, subject to department approval. The proposed amendment would allow the department to deny subpermittee authorization to persons who have 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 Parks and Wildlife Code, Chapter 65; a violation of the Parks and Wildlife Code that is a Class B misdemeanor, a Class A misdemeanor, or felony; a violation of Parks and Wildlife Code, §63.002; or a violation of 16 U.S.C. §§3371-3378 (the Lacey Act). Under the current rule, the department may refuse issuance of a nuisance alligator control permit on the basis of a violation listed above. The department promulgated the current provision because the department believes that a person should not be allowed to engage in the activity involving live wildlife resources, particularly for commercial gain, if the person has engaged in prior serious criminal behavior related to conservation laws. The purpose of the provision is to prevent persons who have been proven to exhibit disregard for statutes and regulations governing wildlife and fisheries from participating in nuisance alligator control activities. The proposed amendment would extend the same standard to encompass subpermittees. The department notes that it does not intend for a conviction or administrative penalty to be an automatic bar to obtaining subpermittee authorization. The factors that may be considered by the department in determining whether to deny subpermittee authorization based on a conviction or deferred adjudication would include the seriousness of the offense, the number of offenses, the existence or absence of a pattern of offenses, the length of time between the offense and the permit application, and any other pertinent factors.

        The proposed amendment to subsection (a) also would require subpermittees to be directly supervised by the permittee at all times that a subpermittee is engaged in permitted activities, which is necessary to ensure that nuisance alligator control activities are performed correctly and lawfully. Finally, the proposed amendment to subsection (a) would require the department’s authorization for the subpermittee to be maintained on the person of the permittee during permitted activities, which is necessary to facilitate prompt on-site verification of the status of anyone purporting to be a subpermittee.

        The proposed amendment would eliminate current subsection (b), which establishes a deadline for permit applications. The department has determined that eliminating the application deadline would allow for additional prospective nuisance alligator control hunters to be permitted at times when nuisance control calls are at high volumes or there is a shortage of nuisance control hunters available.

        The proposed amendment would alter subsection (d) by implementing a more structured approach to nuisance alligator control activities and requiring explicit department approval on a case-by-case basis for the capture or killing of alligators in excess of 10 feet in length.

        Under the current rule, a nuisance control hunter may contract directly with a landowner (or authorized agent), political subdivision, governmental entity, or property owner’s association for the removal of nuisance alligators. The current rules were promulgated in 2011 in response to a steadily rising number of nuisance alligator complaints. The department intended for nuisance control hunters to determine, in any given instance, whether or not an alligator was indeed a nuisance as defined by §65.352 (“an alligator that is depredating or a threat to human health or safety”) and then proceed accordingly. In practice, however, the department has discovered that this approach can lead to confusion and perhaps misunderstanding. Therefore, the proposed amendment would require nuisance control hunters, prior to engaging in permitted activities, to contact the department via one of the department’s Law Enforcement Division communications centers to receive a control number for each nuisance alligator that the nuisance control hunter seeks to remove. In this way, the department has a method for tracking exactly when and where nuisance control activities are taking place, which allows the department the ability to selectively monitor nuisance alligator control activities and ensure compliance with federal tagging requirements for crocodilian species.

        Finally, the proposed amendment would require written authorization from the department on a case-by-case basis for the capture or killing of alligators greater than 10 feet in length. The justification for this amendment is twofold. First, large alligators are critical components of aquatic ecosystems. These individuals (usually males) are apex predators that directly impact the social and breeding structures, home ranges, and population densities of alligator populations across Texas. Requiring additional confirmation that large alligators are verified nuisance animals before their removal from the environment is a safeguard for ensuring that alligators remain a sustainable natural resource in Texas. Second, large alligators are economically valuable as live attractions or when sold as hides or parts. Similar to other “trophy” animals, these animals are also highly valuable to hunters who seek to legally harvest large alligators during the Texas alligator hunting season. During the past year the department received complaints from the public that large alligators were being captured by nuisance alligator control hunters not because the alligators were legitimate nuisances but solely for their value as desirable trophy animals.

2. Fiscal Note.

        Jonathan Warner, Alligator Program Leader, has determined that for each of the first five years that the rules as proposed are in effect, there will be no fiscal implications to state or local governments as a result of administering or enforcing the proposed amendments.

3. Public Benefit/Cost Note.

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

        (A) The public benefit anticipated as a result of enforcing or administering the proposed rules will be the control of nuisance alligators and protection of alligator resources in Texas.

        (B) There will be no adverse economic effect 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 on small businesses and micro-businesses. As required by Government Code, §2006.002(g), in April 2008, the Office of the Attorney General issued guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small businesses. These guidelines state that “[g]enerally, there is no need to examine the indirect effects of a proposed rule on entities outside of an agency’s regulatory jurisdiction.” The 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. The guidelines also list examples of the types of costs that may result in a “direct economic impact.” Such costs may include costs associated with additional recordkeeping or reporting requirements; new taxes or fees; lost sales or profits; changes in market competition; or the need to purchase or modify equipment or services.

        The department has determined that the rules as proposed will not affect small businesses, micro-businesses, or rural communities, since the rules do not impose any direct economic impacts on the regulated community. Therefore, the department has not prepared the economic impact statement or regulatory flexibility analysis described in Government Code, Chapter 2006.

        (D) 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.

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

        (F) 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.

        (G) The department has determined that because the rule as proposed does not impose a cost on regulated persons, it is not necessary to repeal or amend any existing rule.

        (H) In compliance with the requirements of Government Code, §2001.0221, the department has prepared the following Government Growth Impact Statement (GGIS).  The rule as proposed, if adopted, will:

                 (1) neither create nor eliminate a government program;

                 (2) not result in an increase or decrease in the number of full-time equivalent employee needs;

                 (3) not result in a need for additional General Revenue funding;

                 (4) not affect the amount of any fee;

                 (5) not create a new regulation;

                 (6) expand, limit, or repeal an existing regulation (creation of subpermittee status);

                 (7) increase the number of individuals subject to regulation (creation of subpermittee status); and

                 (8) neither positively nor adversely affect the state’s economy.

4. Request for Public Comment.

        Comments on the proposed rule may be submitted to Robert Macdonald, Regulations Coordinator, e-mail: robert.macdonald@tpwd.texas.gov. Comments also may be submitted via the department’s website at https://www.tpwd.texas.gov/business/feedback/public_comment/.

5.  Statutory Authority.

        The amendments are 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 provide 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 amendments affect Parks and Wildlife Code, Chapter 65.

6. Rule Text.

        §65.352. 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 in Subchapter A of this chapter (relating to the Statewide Hunting and Fishing Proclamation) and in the Parks and Wildlife Code.

                 (1) – (13) (No change.)

                 (14) Subpermittee—A person who is registered with the department to assist a permittee in performing nuisance alligator control activities.

                 (15)[(14)] Wholesale dealer — A person who operates a place of business (mobile or permanent) for the purpose of buying nonliving alligators for resale, canning, preserving, processing, or handling for shipment or sale.

                 (16)[(15)] Skull length — the distance from the anterior edge of the premaxilla to the posterior edge of the parietal, measured along the mid-line of the skull.

        §65.363. Nuisance Alligator Control.

                 (a) Permit Required; Subpermittees.

                         (1) Except as provided in this subchapter or §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.

                         (2) A permittee may utilize a subpermittee or subpermittees to assist in the performance of nuisance alligator control activities.

                                  (A) A subpermittee must be approved by the department prior to engaging in any activities under this section. The department will not authorize any person to act as a subpermittee if:

                                          (i) the person has been convicted of, pleaded nolo contendere to, or received deferred adjudication for an offense listed in subsection (g)(1)-(4) of this section; or

                                          (ii) the department determines is incapable, unqualified, or otherwise unfit to act as a subpermittee.  

                                  (B) To register a subpermittee, the permittee must complete and submit an application on a form provided by the department for that purpose. Upon approval, the department will send a written authorization for the subpermittee to the permittee.

                                  (C) A permittee utilizing a subpermittee must be in direct supervision of the subpermittee at all times that the subpermittee is engaging in permitted activities. 

                                  (D) The written authorization provided for in subparagraph (B) of this paragraph must be in the physical possession of the permittee at all times that permitted activities are being performed by the subpermittee. 

                 (b) Permit Application and Issuance.

                         (1) (No change.)

                         [(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.]

                         (2)[(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) (No change.)

                 (d) Permit Privileges and Restrictions.

                         (1) (No change.)

                         (2) A permittee or subpermittee may not:

                                  (A) capture or kill an alligator without being in physical possession of a complaint number issued by a department Law Enforcement Division Communication Center that corresponds to the date and place the permittee captures or kills, or attempts to capture or kill an alligator;

                                 (B) capture or kill more than one alligator per complaint number issued by the department;[that is not a nuisance alligator; or]

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

                                  (D) capture or kill an alligator over 10 feet in length without prior written authorization from the department’s Alligator Program in addition to a complaint number issued by the department as prescribed in subparagraph (A) of this paragraph. 

                 (e) – (i) (No change.)

        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