Subchapter A. GENERAL PROVISIONS

Subchapter A. PARK ENTRANCE AND PARK USER FEES

The Texas Parks and Wildlife Department proposes the repeal of §59.3, concerning Activity and Facility Use Fees, an amendment to §59.2, concerning Park Entrance and Use Fees, and new §59.3, concerning Activity and Facility Use Fees. The repeal of §59.3 will allow the section to be restructured for greater clarity.

The proposed amendment to §59.2 consists of a number of changes. The amendment alters subsections (b) and (c) to increase the upper limit of the park-specific annual permit fee range from $50 to $100 and specifies that the permits may not be used for commercial activities. The amendment to subsection (d) expands the use of the Youth Group Annual Permit, making it available to all not-for-profit youth groups, removes the requirement of governmental sponsorship, and makes the permit valid at all department recreational and historic sites. The amendment also limits the admission of youth groups to 50 persons or less (including a reasonable number of adult supervisors, as determined by the park manager) and provides that the permit may be obtained at all state parks, Texas Parks and Wildlife Headquarters, and other designated offices. The amendment to current subsection (e) eliminates the per-vehicle entrance and use fee. The amendment to current subsection (f) sets the upper range for park entrance fees at $7 per person. The amendment to subsection (g) allows the executive director to delegate the authority to waive or discount entrance/day use fees. The amendment to current subsection (i) eliminates the coverage of an annual pass to the purchaser's immediate family when persons arrive by boat, bicycle, or on foot, while increasing the number of persons allowed to accompany an annual permit holder by boat, bicycle, or on foot from three to five. The amendment to current subsection (m) eliminates the issuance of duplicate State Parklands Passports and restricts the instances in which replacement permits are issued. The amendment to current subsection (o) requires bus passengers to pay individual entrance/use fees when entering at parks that collect entrance/use fees on a per-person basis. The amendment to current subsection (p) increases the upper range of fees for school groups to $5.00 per person. The amendment eliminates current subsection (q), which allows students to be charged a student historic site tour fee. Finally, the amendment makes numerous non-substantive changes to improve clarity and readability.

New §59.3, concerning activity and facility use fees: declares the criteria on which park fees are based; establishes the circumstances under which fees may be implemented, raised, or lowered; sets the upper fee ranges for all park facility use and activity use fees; and establishes new fee ranges such that all fee ranges are by-facility rather than a mix of by-facility and by-park fees. The new section also defines facilities by number and type of beds, types of amenities, and available services.

The proposed fees are generally necessary to provide additional funding to maintain the current level of park services for the benefit of the public.

Michael L. Crevier, Director of Business Management, has determined that for each of the first five years that the rules as proposed are in effect, there will be fiscal implications to state government as a result of enforcing or administering the rules as proposed. The department establishes a fee range, consisting of an upper and lower value, for each type of facility or service (or combination thereof), which may vary from site to site. The purpose of the fee-range approach is to provide the flexibility for the department to make incremental adjustments to fee structures from time to time (within the approved ranges) for individual units of the park system in response to changing conditions over a multi-year period. The last fee range change adopted by the commission occurred in 1996. The proposed amendments authorize, but do not require, the department to implement fee increases. Not all fees will be immediately increased as a result of the amendments. Fee changes within the ranges established by rule are determined by analysis of user demographics, benefit, demand, comparability with local providers of similar facilities and/or services operated under similar conditions, and recreational industry trends. As fee increases are implemented, the department estimates that the potential increase resulting from the proposed rules will be approximately $500,000 - $700,000 per year for the first five years. This estimate was derived by taking the previous fiscal year's occupancy and use numbers and multiplying by the fee increases expected to be implemented in each of the next five years. Thus, the estimate to some extent is based upon the extrapolation of historical data, which cannot take into account the specific impacts that may occur due to unpredictable variables such as unseasonable climatic conditions, economic factors, natural disasters, and other influences on visitation. Thus, the estimate is an approximate value representing the total possible revenue increase under the proposed rules.

There will be no fiscal implications for units of local governments.

Mr. Crevier also has determined that for each of the first five years the rules as proposed are in effect, the public benefit anticipated as a result of enforcing or administering the rules as proposed will be the continuation of state park services at current levels for public enjoyment and benefit.

The rules as proposed might impose adverse economic effects on some small businesses or micro businesses engaged in filmmaking; however, the use of state parks and state parks equipment is not mandatory. The department has no employment or economic data from which to project the cost for each employee, cost for each hour of labor, or cost for each $100 of sales with respect to small businesses and micro businesses engaged in filmmaking, but the cost of compliance with the proposed fees is the same for the smallest business as it is for the largest business potentially affected by the rule. The economic effect on persons required to comply with the rules as proposed will be the cost of the fees for the use of various facilities, amenities, and services indicated in the rulemaking.

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.

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.

Comments on the proposed rules may be submitted to Mike Crevier, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-8560 or 1-800-792-1112 (e-mail: mike.crevier@tpwd.state.tx.us).

Subchapter A. STATEWIDE HUNTING AND FISHING PROCLAMATION

The Texas Parks and Wildlife Department proposes the repeal of §65.357 and §65.365, amendments to §65.352-65.354, 65.356, 65.359, 65.360, and 65.361-65.364, and new §§65.357, 65.365, and 65.366, concerning the Alligator Proclamation. The amendment to §65.352, concerning Definitions, consists of the addition of a definition of ‘consumer,’ which is necessary to delineate that class of persons who are end-users of alligators and to whom no documentation or licensing requirements apply; and of ‘skull length,’ which is necessary for determining the threshold for permanent marking requirements. The amendment also revises the definition for ‘processed alligator part,’ replacing it with the term ‘processed product.’ Further, the amendment alters the definition of ‘alligator’ to eliminate reference to alligator eggs. The amendment is necessary to avoid semantic complication in other provisions caused by the cumbersome nature of the current definition. The amendment also alters the definition of ‘harpoon or gig,’ which has been simplified to eliminate confusing terminology by consolidating this class of hand-held, thrown devices under the single definition of ‘gig.’ The amendment is necessary to remove antiquated language that serves no edifying purpose. Further, the amendment adds a nonsubstantive change that imports two definitions from §65.357, concerning Sale of Alligators. The amendment is necessary to place all definitions in a single section for ease of use and administrative simplicity. Finally, the amendment eliminates the definition of ‘shed.’ The amendment is necessary because the term is no longer used in the subchapter.

The amendment to §65.353, concerning General Provisions, allows for persons to enter the state with live, legally documented alligators for purposes of shipment outside the state. The amendment is necessary because alligator farmers in other states use airports in Texas to ship alligators out of the state, and such activities were never intended to be subject to the intent of the subchapter. The amendment also stipulates notification requirements and requires that alligators brought into the state for shipment to other destinations be humanely treated.

The amendment to §65.354, concerning Hunting, renames the section ‘Hunting and Tagging’ and eliminates subsection (a). The change is nonsubstantive, in that the license requirement contained in subsection (a) duplicates statutory requirements and is therefore unnecessary. The amendment is necessary to eliminate repetitive language. The amendment also replaces a current hide-tag requirement (that hunters have in possession at least one unused hide tag while hunting), with a requirement that hunters possess at least one unused hide tag per taking device. The amendment is necessary to prevent the take of alligators in excess of the number of hide tags in possession by a hunter. The amendment also requires hide tags to be attached within ten inches of the tip of an alligator’s tail, rather than through a medial scute. The change does not alter the impact of the current requirement, but does clear up confusion for hunters unfamiliar with precise anatomical terminology.

The amendment to §65.356, concerning Means and Methods, clarifies existing requirements designed to prevent the hunting of alligators at night. The amendment also would specifically prohibit the setting of baited lines between sunset and one-half hour before sunrise, and is necessary to control night hunting, which is difficult to regulate effectively. Finally, the amendment requires a float to be attached to lines on all hand-held taking devices. The amendment is necessary to enhance the ability of hunters using hand-held devices to track and locate alligators once they are caught.

New §65.357, concerning Purchase and Sale of Alligators, reorganizes the current rules by importing provisions previously located in other sections to create a single section to address what each class of permittee may and may not do with respect to the purchase and sale of alligators. The new section for the most part does not substantively alter the rules currently in effect; however, there are changes that differ slightly from the existing rules. The new section stipulates that a wholesale dealer’s permit is required for anyone to purchase alligators for the purpose of resale, replaces the term ‘restaurant’ with the term ‘vendor,’ and requires a separate retail dealer permit for each place of business. The new rule is necessary primarily to create a more user-friendly and intuitive organizational structure, but is also necessary to prevent persons from evading the permit and documentation requirements of the subchapter by engaging in second-hand transactions. This portion of the new rule is intended to create an absolute standard to prevent the unregulated sale of alligators and their parts.

The amendment to §65.359, concerning Possession, alters subsection (a) to make it applicable to persons who might for whatever reasons possess an alligator that was actually taken by someone else, and creates a documentation option for persons possessing alligators under circumstances that make the hide tag impractical or impossible. The changes are necessary to address various scenarios under which persons other than hunters and dealers could possess alligators. Finally, the amendment requires all individual alligator skulls (i.e., skulls not accompanied by the alligator from which it came) of greater than nine inches length to be permanently marked. The change is necessary to create a documentation trail for wild-caught alligators, ensuring that skulls come from legally taken alligators. As a general rule, alligators harvested at alligator farms are in age classes that do not exceed a skull-length of greater than ten inches; therefore, alligator skulls greater than ten inches are virtually assured to have been taken from the wild.

The amendment to §65.360, concerning Report Requirements, makes nonsubstantive changes to correct references to department documents, extends the deadline for the return of egg collection reports, and requires permittees to notify the department when hide tags are lost, destroyed, stolen, or mutilated. The amendment is necessary, respectively, to allow more time for egg collectors to compile and submit their reports and to accurately account for the disposition of all nest stamps issued by the department.

The amendment to §65.361, concerning Alligator Farm Facility Requirements, requires hide tag applications to be submitted 15 days prior to the harvest of alligators, except for non-harvest mortalities. The amendment is necessary for the department to accurately track harvest numbers.

The amendment to §65.362, concerning Importation and Exportation, eliminates the requirement that an export permit be purchased for each instance of importation and replaces it with an export permit valid for a maximum of one year if purchased September 1. The amendment also creates a notification requirement for each instance of importation. Further, the amendment also acknowledges the change to another section that would allow live alligators from out-of-state to be temporarily transported in or through the state en route to other destination. Finally, the amendment creates a $4.00 export fee for each live alligator exported from the state that is not accompanied by a valid, department-issued hide tag. The amendment is necessary to make the section comport with the provisions of other sections, to reduce the administrative costs to the department, and to create an incentive for live alligators to be sold in Texas and exported only when a Texas buyer cannot be found.

The amendment to §65.363, concerning Alligator Control, adds a new subsection (a) to explicitly acknowledge the department’s authority to contract for the removal of nuisance alligators. The amendment is necessary because although the authority can be inferred from the context of the section, there is no clear statement stating so.

The amendment to §65.364, concerning Exceptions, prohibits the feeding of free-ranging alligators (except for hunters), and requires that persons who kill an alligator in self-defense notify the department immediately, rather than within 24 hours. The amendment is necessary to stop the practice of alligator feeding in non-farm environments, which causes alligators to lose their natural fear of humans and encourages them to understand human activity as a possible food source and to assist law enforcement investigations by narrowing the timeframe for reporting such mortalities inflicted in self-defense situations.

New §65.365, concerning Management Tag, provides for a reduced-price hide tag to be issued to landowners to encourage the harvest of sub-adult alligators, and establishes a fee of $5.00 per tag. The amendment is necessary to encourage selective harvest of size classes in proportion to their occurrence in the wild.

New §65.366, concerning Violations and Penalties, contains the provisions of former §65.365, which was repealed to create more space within the subchapter for new sections.

Robert Macdonald, regulations coordinator, has determined that for each of the first five years that the rules as proposed are in effect, there will be fiscal implications to state government as a result of enforcing or administering the rules. The department expects to sell approximately 300 of the newly created management hide tags at $5.00 per tag, which will result in approximately $1,500 per year in additional revenue to the department. The rules as proposed will not result in fiscal implications for units of local government.

Mr. Macdonald also has determined that for each of the first five years the rules as proposed are in effect, the public benefit anticipated as a result of enforcing or administering the rules as proposed will be better organized regulations, more efficient administration of the department’s statutory duty, and an increased quality of protection for alligator resources in the state.

There will be no adverse economic effect on small businesses, microbusinesses, or persons required to comply with the rules as proposed.

The department has not filed a local impact statement with the Texas Workforce Commission as required by the Administrative Procedures Act, §2001.022, as the agency has determined that the rules as proposed will have no impact on local economies.

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.

Comments on the proposed rules may be submitted to Robert Macdonald, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4775 or 1-800-792-1112 extension 4775 (e-mail: robert.macdonald@tpwd.state.tx.us).

The Texas Parks and Wildlife Department proposes the repeal of §65.377 and §65.380, amendments to §§65.372, 65.374, 65.376, 65.378, and 65.379, and new §§65.377, 65.381, 65.383, and 65.385, concerning the Statewide Fur-bearing Animal Proclamation. The repeal of §65.377, concerning Sale or Purchase of Fur-bearing Animals, allows the creation of a new section addressing the same topics. New §65.380, concerning Penalty, would allow that section to be redesignated as new §65.385, and is necessary to create room within the existing numbered sections to accommodate new §65.381 and §65.383.

The amendment to §65.372, concerning Definitions: adds definitions of ‘consumer’ and ‘export,’ adds clarifying language to the definition of ‘commercial harvest,’ adds clarifying language to the definition of ‘finished product,’ and creates a comprehensive definition of the term ‘fur-bearing animal.’ The amendment is necessary, respectively, to: create a definition of a class of persons who are end-users of fur-bearing animals and to whom minimal documentation and licensing requirements apply; to define ‘export’ such that the state is able to regulate that activity, to make clear that commercial harvest is that harvest which takes place during the commercial trapping season; to comport the regulatory definition of ‘finished product’ with the statutory definition of ‘pelt’; and to create a definition of ‘fur-bearing animal’ that allows the term to be used in an inclusive sense (i.e., applying to parts of fur-bearing animals, pelts, carcasses, etc. as well as to an entire animal) so as to prevent repetition of terms and the creation of unnecessarily tedious regulatory language.

The amendment to §65.374, concerning General Rules, would add provisions requiring the tagging of all otter taken in the state with a CITES (Convention on International Trade in Endangered Species) tag and requiring all otter pelts brought into the state to be so tagged. The amendment would eliminate current subsections (b)-(g). The elimination of subsection (b) is necessary because it duplicates statute and is therefore superfluous; the elimination of subsection (c) is necessary because the provisions of the section are being removed to §65.376, concerning Possession of Live Fur-bearing Animals; the elimination of subsection (d) is necessary because the department will no longer sell retail fur buyer licenses; the elimination of subsection (e) is necessary because those provisions are being relocated in a revamped §65.377, which will comprehensively address issues of sales and purchases by various classes of permittees; the elimination of subsection (f) is necessary because it duplicates statute and is therefore superfluous; and the elimination of subsection (g) is necessary because that subsection will expire on its own terms on September 1, 2003.

The amendment to §65.376, concerning Possession of Live Fur-bearing Animals, would remove the provision for a waiver of facility inspection for persons who possess live fur-bearing animals under a propagation permit but who do not engage in commercial activity; eliminates subsection (e), which is being redesignated as new §65.383; and implements new subsection (g) to prohibit the take of fur-bearing animals from the wild by propagation permit except during the open commercial trapping season. The amendment is necessary to ensure that all facilities used to hold live fur-bearing animals are inspected for compliance with facility standards and to confine collection impacts on wild populations to the commercial season.

New §65.377, concerning Sale or Purchase of Fur-bearing Animals, restructures the section to increase clarity. The new section eliminates the current waiver of facility inspections for persons not engaged selling or trading, which is necessary because the department feels that anyone who receives a fur-bearing animal propagation license, whether they are engaged in commercial activities or not, should be subject to stated standards of humane care for animals in their custody. The new section also would clarify that live fur-bearing animals may be taken from the wild by propagators only during the open commercial season, which is necessary to ensure that commercial harvest takes places during that time of the year when fur-bearing animals are not rearing offspring. The new section is generally necessary because it makes intuitive sense to place all regulatory provisions concerning possession of live fur-bearing animals in a single section for ease of use. It is also necessary to set forth the various privileges afforded by each license type.

The amendment to §65.378, concerning Importation and Release, would eliminate a reference to release and would incorporate a provision concerning export of fur-bearing animals, which is being relocated from another section. The amendment is necessary because this rulemaking creates a new §65.381 to deal specifically with nuisance fur-bearing animals and because the subchapter is being reorganized to make it more user-friendly.

The amendment to §65.379, concerning Reporting Requirements, would require permittees to return all unused CITES tags to the department by a specified time each year, and would require permittees to maintain records for a period of two years following the period of validity of a permit and to make the records available to department employees acting within the scope of official duties. The amendment is necessary to maintain an accurate record of the take of otter in this state, to make the provisions of the subchapter consistent with recordkeeping requirements of other subchapters, and to ensure that factual documentation of all activities is available to the department during the time period that the statute of limitations is in effect for offenses under the subchapter.

New §65.381, concerning Nuisance Fur-bearing Animals, consolidates all provisions applying to nuisance animals in one section and adds a clarifying reference to regulations of the Texas Department of Health applicable to certain fur-bearing animals. The new section is necessary to provide an easily locatable, single-subject regulation that can be quickly consulted by persons involved with removal and release of nuisance animals.

New §65.383, concerning Taxidermy, consolidates in one section all provisions applying to possession of furbearing animals by taxidermists. The new section is necessary to provide a convenient, single-subject reference for taxidermists.

New §65.385, concerning Penalty, states where the penalties for violation of the subchapter can be found in the Parks and Wildlife Code. The new section is necessary because the provisions of the new section were previously in another section, which, because of this rulemaking must be redesignated.

Robert Macdonald, regulations coordinator, has determined that for each of the first five years the rules as proposed are in effect, there will be no fiscal implications to state and local governments as a result of enforcing or administering the rules.

Mr. Macdonald also has determined that for each of the first five years the rules as proposed are in effect, the public benefit anticipated as a result of enforcing or administering the rules as proposed will be clearer and more user-friendly regulations, as well as the enhanced ability of the department to discharge its statutory obligation to conserve fur-bearing animal resources by means of improved recordkeeping.

There will be no adverse economic effect on small businesses, microbusinesses, or persons required to comply with the rules as proposed.

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.

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.

Comments on the proposed rules may be submitted to Doug Humphreys, Texas Parks and Wildlife Department 4200 Smith School Road, Austin, Texas, 78744; (512) 389-4992 (e-mail: doug.humphreys@tpwd.state.tx.us).

Subchapter Q. STATEWIDE FUR-BEARING ANIMAL PROCLAMATION