Regulations Committee

Wednesday, 9:00 am, April 3, 2002

Commission Hearing Room
4200 Smith School Road
Austin, TX 78744
Item
No.
Subject Public Hearing
Agenda Item No.
  Approval of the Committee Minutes from the previous meeting.  
  Summary of Minutes  
1. Chairman's Charges (Oral Presentation) Committee Only
2. Cervid Disease Issues
Staff: Jerry Cooke
4
3. Statewide Hunting and Fishing Proclamation
Staff: Gary Graham, Phil Durocher, Hal Osburn
6
4. Statewide Oyster Fishery Proclamation/Rule Review
Staff: Robin Riechers
7
5. Public Lands Proclamation 2002-2003
Staff: Herb Kothmann
9
6. 2002-2003 Migratory Game Bird Proclamation
Staff: Vernon Bevill
Committee Only
7. Commission Policy Manual Resolution/Designation of Official Nonprofit
Staff: Gene McCarty
10
8. Commercial Nongame Permits
Staff: John Herron
Committee Only
8. Other Business  

Summary of Minutes
Texas Parks and Wildlife Commission
Regulations Committee
January 16, 2002

BE IT REMEMBERED that heretofore on the 16th day of January 2002, there came to be heard matters under the regulatory authority of the Parks and Wildlife Commission of Texas, in the commission hearing room of the Texas Parks and Wildlife Headquarters complex, Austin, Travis County, Texas beginning at 9:00 a.m., to-wit:

I. REGULATIONS COMMITTEE:

Joseph Fitzsimons, Chair
Ernest Angelo, Jr.
Phillip Montgomery, III
Katharine Armstrong Idsal
John Avila, Jr. (absent)
Alvin L. Henry (absent)
Donato D. Ramos
Mark E. Watson, Jr. (absent)

II. OPENING STATEMENT: Meeting opened by Chairman Idsal.

III. APPROVAL OF MINUTES: Minutes approved.

IV. THE FOLLOWING ITEMS WERE PRESENTED TO THE COMMITTEE:

1. BRIEFING – CHAIRMAN’S CHARGES

The chair recognized Executive Director Robert L. Cook. Mr. Cook informed the committee that there were three items to be reported on in response to legislative direction. The first was a requirement contained in Senate Bill 305 (referred to as the Sunset Bill) to review the department's oyster lease program. Mr. Cook reported that the Coastal Fisheries Division had proposed regulations for the administration and management of the program to comply with legislative direction, including an increase in the oyster lease fee structure. Next, Mr. Cook provided a status report on the agency's legislative rules review in response to House Bill 1 of the 77th Legislature, noting that the contents of Chapter 65 of the Texas Administrative Code would be reviewed concurrently with pending action on the Statewide Hunting and Fishing Proclamation. Finally, Mr. Cook apprised the committee of the department's efforts to implement the program to locate and remove abandoned crab traps, commenting that activities were well under way and very successful.

2. ACTION - EQUINE ANEMIA REGULATIONS.

The chair recognized Jerry Cooke, chief of the Game Branch in the Wildlife Division. Mr. Cooke informed the committee of the status of proposed regulations to require all persons bringing equines to public lands to possess proof of a negative test for Equine Infectious Anemia. Mr. Cooke also provided a summary of public comment, which was entirely in support of adoption of the proposed rules. Commissioner Fitzsimons asked if the proposed rule effectively comported TPW rules with those of the Texas Animal Health Commission for EIA generally. Mr. Cooke replied in the affirmative. Commissioner Fitzsimons forwarded the item to the full commission for adoption.

3. BRIEFING – CERVID DISEASE ISSUES

The chair recognized Jerry Cooke, chief of the Game Branch in the Wildlife Division. Mr. Cooke began by noting the committee's direction to staff to cooperate closely with the Texas Animal Health Commission (TAHC).He continued by providing the committee with background information on the status of disease outbreaks in other states and the response of TAHC to those developments. Mr. Cook then explained that the proposed regulations would define the term 'healthy condition' within the context of deer held under a Scientific Breeder Permit, and outlined the regulatory criteria for achieving that status. Commissioner Angelo asked what Level A herd status meant. Mr. Cooke responded that a Tuberculosis Herd Accreditation Status Level A would require at least 20% of a herd be tested annually, some time during the year, for TB. Commissioner Montgomery asked if there were a live test for Chronic Wasting Disease (CWD). Mr. Cooke responded that there is currently no accredited test, although there is an experimental test being developed. Mr. Cooke then introduced Dr. Max Coates of Texas Animal Health Commission.

Dr. Coats provided background information on the pathological and epidemiological nature of CWD, as well as current protocols for detection and elimination. Commissioner Ramos asked if CWD is more problematic than brucellosis, since brucellosis can be detected by a live-animal test. Dr. Coats responded that the commissioner was correct, adding that prion diseases such as CWD are what might be classified as newly emerging diseases, and although they're being intensively studied, particularly as a result of BSE in the United Kingdom, the total natural history of those diseases has not yet been worked out. Commissioner Ramos asked about any treatments analogous to calf hood vaccinations. Dr. Coats responded that currently there are no vaccines that are effective, or even in the works, for any of the prion diseases. Commissioner Fitzsimons inquired as to the relative severity of CWD compared to brucellosis. Dr. Coats replied that CWD would be extraordinarily difficult, if not very nearly impossible, to eradicate with certainty in a wildlife population, and that this fact was being borne out in places like Colorado, Wyoming, and Nebraska now. Commissioner Fitzsimons then asked if CWD was the type of disease that would spread fairly fast. Dr. Coats relied that because it is a slow-incubating disease, its spread is not clearly understood. Commissioner Ramos asked if the disease was reversible. Dr. Coats responded that CWD is invariably fatal and that there is no prevention, no treatment, and no cure. Commissioner Angelo asked for information on the symptomatology of CWD, which Dr. Coats provided, along with more detail on the epidemiology of the disease. Commissioner Ramos then asked if it would be correct to conclude that CWD was a definite threat to Texas deer herds. Dr. Coats answered that it was, particularly because of situations where deer are concentrated (thus facilitating the transmission of infectious disease) and subsequently released to the wild.

Chairman Idsal asked for a recapitulation of the states where CWD has been found and which have currently suspended importation of white-tailed deer. Dr. Coats and Mr. Cooke provided the requested information. Commissioner Angelo inquired about the transmissibility of CWD to other species. Dr. Coats answered that cattle are not known to be affected and that deer and elk are the only known hosts. Commissioner Fitzsimons asked about the relationship between captive and free-range infection, commenting that it seemed that the states with free-ranging infection also had captive infections. Dr. Coats explained that in free-ranging populations, predator populations cause diseased prey such as deer to disappear from the scene at an abnormally fast rate and that unless you're out there looking, a disease may exist at a low level without detection. He then outlined the situation in Nebraska that CWD occurred behind a high fence in a herd to which no animals had been introduced for ten years. He noted that since predators are obviously not a feature in that kind of a situation, then the opportunity enhances for transmission as the density increases. Commissioner Fitzsimons asked if the problem with detection was due to slow incubation. Dr. Coats stated that if a captive herd has existed without symptoms for five years there is a high probability that there is no disease present. He added, however, that there would be a gap if scientific breeders were releasing deer into the wild in less than five years, and that the critically important piece of our economy represented by hunting should be vigorously protected. Commissioner Fitzsimons inquired as to the difference in enforcement and administration, if instead of acting proactively, you just waited until it appeared and then addressed it? Dr. Coats replied that the Michigan white-tailed deer situation was probably a good example of why you don't want to wait until you notice, until you can't avoid noticing, because they waited and now have a problem that will probably not be cleared up in his lifetime. Commissioner Fitzsimons asked if he was correct in understanding that the message is to act early rather than late. Dr. Coats responded in the affirmative. Commissioner Fitzsimons asked about the extent of federal actions. Dr. Coats stated that he had brought copies of a declaration issued by the United States Department of Agriculture's Veterinary Services unit. Commissioner Fitzsimons noted that the current TAHC embargo affected elk and black-tailed, mule and white-tailed deer, as opposed to all cervids. Dr. Coats replied that there have been no indications that exotic deer species are affected or susceptible, so TAHC did not include them. Commissioner Ramos asked about the cost of addressing the problem in other states that have CWD in their herds. Dr. Coats responded in Colorado they imposed a statewide ban on the export of all deer, so whatever the value of that industry was at the time, it went to zero, and because of the necessary protective responses by other jurisdictions, it will be a very long time before marketability is regained for that particular industry. A discussion ensued concerning current and pending actions of TAHC. Dr. Coats ultimately stated that TAHC and TPW were moving in tandem, restricting the importation from states where the disease is known to exist. Chairman Idsal commented that in her conversations with other states, she heard repeatedly that it is not uncommon for a white-tailed deer to be sold in a second state and then imported into Texas, circumventing the embargo that was set up in the first place. Dr. Coats responded that such activities had occurred, but that if people obeyed the rules and met all the interstate movement requirements, deer could be tracked. The problem, he stated, was that some people don't obey the rules. Chairman Idsal asked how CWD might be tracked in such situations. Dr. Coats responded that the record keeping for TB and the identification of the animals for the TB program affords a vehicle for assessing potential CWD-exposed animals. Commissioner Fitzsimons stated that unless every state has a CWD monitoring program, you couldn’t have complete integrity. Dr Coats responded that, ultimately, you end up installing a state-peculiar requirement stipulating that deer must come from a CWD-monitored herd or they cannot be imported. He also speculated that this sort of thing will be done ad hoc until the federal government institutes a mandatory interstate movement rule. Dr. Coats stated that there were TB rules in Texas long before there were federal interstate movement requirements, primarily because Texas needed to protect domestic and our free-ranging industries. Commissioner Fitzsimons then discussed the definition of ‘healthy condition' as used in the proposed rules. Dr. Coats stated that the provision was important (two statuses or an approved herd plan), because there may be peculiarities in any producer's circumstance or situation that make rigid compliance with those two very well defined status programs infeasible, and there should be provisions for evaluation on an individual basis to ensure early detection of disease. Commissioner Ramos inquired as to the risk of transmission to domestic livestock. Dr. Coats responded by summarizing the relative lack of understanding of prion diseases and the history of an outbreak in the British Isles. Commissioner Fitzsimons then authorized staff to publish proposed rules in the Texas Register for the required public comment period.

4. ACTION - OYSTER FISHERY PROCLAMATION AMENDMENTS

The chair recognized Mr. Robin Riechers, management director of the Coastal Fisheries Division. Mr. Riechers addressed the regulatory changes to oyster rules required by legislative action. He provided economic and technical data regarding oyster leases and the oyster industry and outlined the expected ramifications of department regulatory action, as well as providing a summary of public comment received by the department in response to the proposed regulations. Commissioner Montgomery asked for verification that the proposed lease term was a statutory requirement. Mr. Riechers responded that it was. Commissioner Angelo inquired as to the specifics of oyster farming versus natural beds. Mr. Riechers furnished the requested information. Commissioner Fitzsimons then placed the item on the agenda of the full commission for adoption.

5. BRIEFING - STATEWIDE HUNTING AND FISHING PROCLAMATION

The chair recognized Mr. Phil Durocher, director of the Inland Fisheries Division. Mr. Durocher addressed the individual proposals affecting freshwater fishing regulations, explaining the reasons and strategies in support of each. The chair then recognized Mr. Hal Osburn, director of the Coastal Fisheries Division. Mr. Osburn provided background on the status of spotted sea trout populations, and the possibility of altering existing regulations to increase opportunity. He then provided a review of the department's outreach efforts and the attitudes of various segments of the regulated community with respect to sea trout, and proposed that a more intensive outreach campaign be conducted prior to any regulatory action. Mr. Osburn then explained the background and justification for changes to size and bag limit regulations on border waters and apprised the committee of a change in nomenclature for one species of fish. A discussion on the economics of the guide industry ensued, with Mr. Osburn indicating that the Coastal Fisheries Division would gather economic data for later presentation. The chair then recognized Mr. Gary Graham, director of the Wildlife Division. Mr. Graham addressed each of the Wildlife Division's regulatory proposals, beginning with a detailed explanation of the rationale and background of proposed changes to buck harvest regulations in certain south-central counties, and continuing through changes involving proof of sex for deer, use of dogs, and changes to seasons, bag limits, and permit privileges with respect to white-tailed deer and turkey. Commissioner Fitzsimons asked if the proposed antler restrictions in south-central Texas were similar to landowner imposed restrictions already used by wildlife cooperatives in the area. Mr. Graham indicated that that was the case, but that due to numerous small parcel sizes and high hunting pressure there was a need for regulatory action. Commissioner Angelo remarked that there would have to be significant public support for the proposal. Commissioner Fitzsimons expressed concern that the action was a form of micromanagement, and that hunters were going to have to be very careful in their buck selection. Commissioner Ramos asked if the minimum spread requirement was sufficient to result in shifting the age structure towards older animals. Mr. Graham replied in the affirmative. Commissioner Fitzsimons discussed the ramifications of precedent, were the rule to be imposed. Commissioner Fitzsimons then authorized staff to publish the proposed rules in the Texas Register for public comment

6. BRIEFING - PUBLIC LANDS PROCLAMATION

The chair recognized Mr. Herb Kothmann, Branch Chief of the Public Hunting Program. Mr. Kothmann provided details of proposed changes to the Public Lands Proclamation, including housekeeping changes to move fee information to a more appropriate area of the Administrative Code and the standardization of hunting privileges under the Annual Public Hunting Permit. Mr. Kothmann also provided a list of state parks being considered for public hunting activities. Commissioner Fitzsimons asked how many people participate in public hunting. Mr. Kothmann replied that approximately 6,000 people had applied for drawn hunts the previous year, and that the department had sold 43,000 Annual Public Hunting Permits. Commissioner Fitzsimons initiated a discussion of the dove-lease efforts by the department, and the committee expressed satisfaction at the success of the program. Commissioner Montgomery asked for assurance that public hunting activity would not take place during periods of peak park visitation. Mr. Kothmann responded that commission policy had always been to schedule hunts when they would least inconvenience park users. Commissioner Fitzsimons authorized staff to publish the proposed rules in the Texas Register for public comment.

7. BRIEFING - STANDARDS FOR QUALIFICATION OF OPEN SPACE LAND USED FOR WILDLIFE MANAGEMENT

The chair recognized Mr. Kirby Brown, Branch Chief of the Private Lands and Habitat program. Mr. Brown began by briefing the committee on the legislative history of House Bill 3123 from the most recent legislative session, describing the intent of the bill and the steps being taken by the department in conjunction with the Comptroller of Public Accounts to implement it. Mr. Brown then presented a detailed analysis of the proposed rule, outlining how land under an agricultural use valuation can be converted to wildlife valuation, and how changes in ownership and parcel size in subsequent tax years would be handled by county appraisers. He also noted that land currently in wildlife management use would be grandfathered, and described how wildlife management property associations could be formed by groups of landowners. The committee then heard from the authors of HB 3123, Representatives Clyde Alexander and Bob Turner, who recapitulated their intent in enacting the legislation. Commissioner Ramos asked about the possibility of legal ramifications. Mr. Brown reiterated that local control of the process was being preserved. Commissioner Fitzsimons asked about wildlife management plans. Mr. Brown responded that the plans required by the proposed rules would be identical the plans currently being written by Wildlife Division staff. Commissioner Ramos asked if a new plan would have to be written every year. Mr. Brown replied that it would not be necessary as long as the landowner was performing the activities required by the original plan. A discussion continued on the technical aspects of qualifying land for agricultural use versus wildlife management use. Representative Turner cautioned that under the rules, a landowner would face the same compliance strictures as are in effect currently for agricultural appraisal.

V. ADJOURNMENT: Commissioner Fitzsimons then adjourned the meeting.


Committee Agenda Item No. 1

Regulations Committee
Chairman's Charges
April 2002

(This item will be an oral presentation.)


Committee Agenda Item No. 2
Presenter: Dr. Jerry Cooke

Regulations Committee
Cervid Disease Issues
April 2002

(This is Public Hearing Agenda Item No. 4.)


Committee Agenda Item No. 3
Presenters: Gary Graham, Phil Durocher, Hal Osburn

Regulations Committee
2002-2003 Statewide Hunting and Fishing Proclamation
April 2002

(This is Public Hearing Agenda Item No. 6.)


Committee Agenda Item No. 4
Presenter: Robin Riechers

Regulations Committee
Statewide Hunting and Fishing Proclamation
April 2002

(This is Public Hearing Agenda Item No. 7.)


Committee Agenda Item No. 5
Presenter: Herb Kothmann

Regulations Committee
Amendments to the Public Lands Proclamation
Establishment of an Open Season on Public Lands 2002-2003
Proposed Hunting Activities on State Parks
April 2002

(This is Public Hearing Agenda Item No. 9.)


Committee Agenda Item No. 6
Presenter: Vernon Bevill

Regulations Committee
2002-2003 Migratory Game Bird Proclamation
April 2002

I. Discussion: Responsibility for establishing seasons, bag limits, means, methods, and devices for harvesting migratory game birds within U.S. Fish and Wildlife Service (Service) frameworks is delegated to the Commission under Chapter 64, Subchapter C, Parks and Wildlife Code. Parks and Wildlife Code, §64.022 authorizes the Executive Director, after notification of the Chairman, to engage in rulemaking.

At present, the U.S. Fish and Wildlife Service (Service) has not issued the annual regulatory frameworks for migratory game birds. Since the current regulations reflect the Commission's policy to provide the most liberal harvest provisions permissible under the federal frameworks, staff recommends retaining those provisions (adjusted for calendar shift) should the Service frameworks remain unchanged from last year. Should the Service issue frameworks that alter any existing options or offer new options for hunter opportunity, the department will adopt the most liberal provisions possible, while affording needed protection to the resource.

Exhibit A - Proposed Migratory Game Bird Proclamation


Commission Agenda Item No. 6
Exhibit A

2002-2003 Migratory Gamebird Proclamation
Proposal Preamble

1. Introduction.

The Texas Parks and Wildlife Commission proposes amendments to §§65.315 and 65.318 - 65.321, concerning the Migratory Game Bird Proclamation. The amendment to §65.315, concerning Open Seasons and Bag and Possession Limits - Early Season Species, adjusts the season dates for early-season species of migratory game birds (with the exception of woodcock) to account for calendar-shift. The amendment to §65.118, concerning Open Seasons and Bag and Possession Limits - Late Season Species, adjusts the season dates for late-season species of migratory game birds, also to account for calendar-shift. The amendment to §65.319, concerning Extended Falconry Season—Early Season Species, adjusts season dates for the take of early-season species of migratory game birds by means of falconry. The amendment to §65.320, concerning Extended Falconry Season—Late Season Species, adjusts season dates for the take of late-season species of migratory game birds by means of falconry. The amendment to §65.321, concerning Special Management Provisions, establishes dates and special regulations for the take of light geese during the special conservation season. The amendments are necessary to implement commission policy to provide maximum hunter opportunity possible under frameworks issued by the U.S. Fish and Wildlife Service (Service). The Service has not issued regulatory frameworks for the 2002-2003 hunting seasons for migratory game birds; thus, the department cautions that the proposed regulations are tentative. However, the department intends to follow commission policy in adopting provisions that provide maximum hunter opportunity to the greatest number of people under the frameworks issued by the federal government.

2. Fiscal Note.

Robert Macdonald, Wildlife Division regulations coordinator, has determined that for the first five years that the amendments as proposed are in effect, there will be no additional fiscal implications to state or local governments of enforcing or administering the amendments.

3. Public Benefit-Cost Note.

Mr. Macdonald also has determined that for each of the first five years the amendments are in effect:

(A) The public benefit anticipated as a result of enforcing the rules as proposed will be the department's discharge of its statutory obligation to manage and conserve the state's populations of migratory game birds, as well as the implementation of commission policy to maximize recreational opportunity for the citizenry.

(B) There will be no adverse economic effects on small businesses, microbusinesses, or persons required to comply with the rule as proposed.

(C) The department has not drafted a local employment impact statement under the Administrative Procedures Act, §2003.022, as the agency has determined that the rule as proposed will not impact local economies.

(D) 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.

4. Request for Public Comment.

Comments on the proposed rules may submitted to Vernon Bevill, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas, 78744; (512) 389-4578 or 1-800-792-1112.

5. Statutory Authority.

The amendments are proposed under Parks and Wildlife Code, Chapter 64, which authorizes the Commission and the Executive Director to provide the open season and means, methods, and devices for the hunting and possessing of migratory game birds.

The amendments affect Parks and Wildlife Code, Chapter 64.

§65.315. Open Seasons and Bag and Possession Limits - Early Season.

(a) Rails.

(1) Dates: September 14-29, 2002 and October 26 - December 18, 2002[15 -30, 2001, and October 27 - December 19, 2001].

(2) Daily bag and possession limits:

(A) king and clapper rails: 15 in the aggregate per day; 30 in the aggregate in possession.

(B) sora and Virginia rails: 25 in the aggregate per day; 25 in the aggregate in possession.

(b) Dove seasons.

(1) North Zone.

(A) Dates: September 1 - October 30, 2002 [September 1 - October 30, 2001].

(B) Daily bag limit: 15 mourning doves, white-winged doves, and white-tipped (white-fronted) doves in the aggregate, including no more than two white-tipped doves per day;

(C) Possession limit: 30 mourning doves, white-winged doves, and white-tipped doves in the aggregate, including no more than four white-tipped doves in possession.

(2) Central Zone.

(A) Dates: September 1 - October 29, 2002[September 1-October 28, 2001], and December 26, 2002 - January 5, 2003[December 26, 2001 - January 6, 2002.]

(B) Daily bag limit: 12 mourning doves, white-winged doves, and white-tipped (white-fronted) doves in the aggregate, including no more than two white-tipped doves per day;

(C) Possession limit: 24 mourning doves, white-winged doves, and white-tipped doves in the aggregate, including no more than four white-tipped doves in possession.

(3) South Zone.

(A) Dates: Except in the special white-winged dove area as defined in §65.314 of this title (relating to Zones and Boundaries for Early Season Species), September 20 - November 3, 2002, and December 21, 2002 - January 14, 2003[September 21-November 4, 2001, and December 22, 2001 - January 15, 2002].

(B) Daily bag limit: 12 mourning doves, white-winged doves, and white-tipped (white-fronted) doves in the aggregate, including no more than two white-tipped doves per day;

(C) Possession limit: 24 mourning doves, white-winged doves, and white-tipped doves in the aggregate, including no more than four white-tipped doves in possession.

(4) Special white-winged dove area.

(A) Dates: September 7, 8, 14, and 15, 2002[September 1, 2, 8, and 9, 2001, September 21 - November 4, 2001 and December 22, 2001 – January 11, 2002].

(i)[(B)] Daily bag limit: 10 white-winged doves, mourning doves, and white-tipped (white-fronted) doves, in the aggregate to include no more than five mourning doves and two white-tipped doves per day;

(ii)[(C)] Possession limit: 20 white-winged doves, mourning doves, and white-tipped doves in the aggregate to include no more than 10 mourning doves and four white-tipped doves in possession.

(B) Dates: September 20 – November 3, 2002 and December 21, 2002 – January 10, 2003.

(i) Daily bag limit: 12 white-winged doves, mourning doves, and white-tipped (white-fronted) doves, in the aggregate to include no more than five mourning doves and two white-tipped doves per day;

(ii) Possession limit: 24 white-winged doves, mourning doves, and white-tipped doves in the aggregate to include no more than 10 mourning doves and four white-tipped doves in possession.

(c) Gallinules.

(1) Dates: September 14-29, 2002, and October 26-December 18, 2002[September 15-30, 2001, and October 27, 2001-December 19, 2001].

(2) Daily bag and possession limits: 15 in the aggregate per day; 30 in the aggregate in possession.

(d) September teal-only season.

(1) Dates: September 14-29, 2002[September 15-30, 2001].

(2) Daily bag and possession limits: four in the aggregate per day; eight in the aggregate in possession.

(e) Red-billed pigeons, and band-tailed pigeons. No open season.

(f) Shorebirds. No open season.

(g) Woodcock: December 18, 2002 - January 31, 2003[December 18, 2001-January 31, 2002]. The daily bag limit is three. The possession limit is six.

(h) Common snipe (Wilson's snipe or jacksnipe): October 19, 2002 - February 2, 2003[October 20 2001-February 3, 2002.] The daily bag limit is eight. The possession limit is 16.

§65.318: Open Seasons and Bag and Possession Limits—Late Season. Except as specifically provided in this section, the possession limit for all species listed in this section shall be twice the daily bag limit.

(1) Ducks, mergansers, and coots. The daily bag limit for ducks is six, which may include no more than five mallards or Mexican mallards (Mexican duck), only two of which may be hens, three scaup, one mottled duck, one pintail, two redheads, one canvasback, and two wood ducks. The daily bag limit for coots is 15. The daily bag limit for mergansers is five, which may include no more than one hooded merganser. [No person may take a canvasback duck except during the period from December 27, 2001 through January 20, 2002.]

(A) High Plains Mallard Management Unit: October 19-21, 2002, and October 26, 2002 - January 19, 2003 [October 20-22, 2001 , and October 27, 2001-January 20, 2002].

(B) North Zone: October 26-27, 2002, and November 9, 2002 - January 19, 2003 [October 27-28, 2001 , and November 10, 2001-January 20, 2002].

(C) South Zone: October 26 - December 1, 2002, and December 14, 2002 - January 19, 2003 [October 27-November 25, 2001, and December 8, 2001-January 20, 2002].

(2) Geese.

(A) Western Zone.

(i) Light geese: October 26, 2002 - February 9, 2003 [October 27, 2001-February 10, 2002]. The daily bag limit for light geese is 20, and there is no possession limit.

(ii) Dark geese: October 26, 2002 - February 9, 2003 [October 27, 2001-February 10, 2002]. The daily bag limit for dark geese is five, which may not include more than one white-fronted goose.

(B) Eastern Zone.

(i) Light geese: October 26, 2002 - January 19, 2003 [October 27, 2001-January 20, 2002]. The daily bag limit for light geese is 20, and there is no possession limit.

(ii) Dark geese:

(I) White-fronted geese: October 26, 2002 - January 19, 2003 [October 27, 2001-January 20, 2002]. The daily bag limit for white-fronted geese is two.

(II) Canada geese and brant: October 26, 2002 - January 19, 2003 [October 27, 2001-January 20, 2002]. The daily bag limit is one Canada goose or one brant.

(3) Sandhill cranes. A free permit is required of any person to hunt sandhill cranes in areas where an open season is provided under this proclamation. Permits will be issued on an impartial basis with no limitation on the number of permits that may be issued. The daily bag limit is three. The possession limit is six.

(A) Zone A: November 9, 2002 - February 9, 2003[November 10, 2001-February 10, 2002]. The daily bag limit is three. The possession limit is six.

(B) Zone B: November 30, 2002 - February 9, 2003[December 1, 2001-February 10, 2002]. The daily bag limit is three. The possession limit is six.

(C) Zone C: December 21, 2002 –January 19, 2003[December 29, 2001-January 20, 2002]. The daily bag limit is two. The possession limit is four.

(4) Special Youth-Only Season. There shall be a special youth-only duck season during which the hunting, taking, and possession of ducks, mergansers, and coots is restricted to licensed hunters 15 years of age and younger accompanied by a person 18 years of age or older, except for persons hunting by means of falconry under the provisions of §65.320 of this chapter (relating to Extended Falconry Season—Late Season Species). Bag and possession limits in any given zone during the season established by this paragraph shall be as provided for that zone by paragraph (1) of this section. Season dates are as follows:

(A) High Plains Mallard Management Unit: October 12-13, 2002 [October 13-14, 2001];

(B) North Zone: October 19-20, 2002 [October 20-21, 2001]; and

(C) South Zone: October 19-20, 2002 [October 20-21, 2001].

§65.319. Extended Falconry Season - Early Season Species

(a) It is lawful to take the species of migratory birds listed in this section by means of falconry during the following Extended Falconry Seasons:

(1) mourning doves and white-winged doves:

(A) Zone A: November 19 - December 25, 2002 [November 19-December 25, 2001]; [and]

(B) Zone B: November 19 - December 25, 2002; and

(C) Zone C: November 16 - December 20, 2002

(2) rails and gallinules: December 19, 2002 - January 24, 2003[December 20, 2001-January 25, 2002].

(3) woodcock: November 24 - December 17, 2002 and February 1 - March 10, 2003 [November 24-December 17, 2001, and February 1-March 9, 2002].

(b) The daily bag and possession limits for migratory game birds under this section shall not exceed three and six birds respectively, singly or in the aggregate.

§65.320. Extended Falconry Season - Late Season Species. It is lawful to take the species of migratory birds listed in this section by means of falconry during the following Extended Falconry Seasons.

(a) Ducks, coots, and mergansers:

(1) High Plains Mallard Management Unit: no extended season; and

(2) Remainder of the state: January 20 - February 3, 2003 [January 21 - February 4, 2002].

(b) The daily bag and possession limits for migratory game birds under this section shall not exceed three and six birds, respectively, singly or in the aggregate.

§65.321. Special Management Provisions. The provisions of paragraphs (1)-(3) of this section apply only to the hunting of light geese. All provisions of this subchapter continue in effect unless specifically provided otherwise in this section; however, where this section conflicts with the provisions of this subchapter, this section prevails.

(1) Means and methods. In addition to the means and methods authorized in §65.310(a) of this title (relating to Means , Methods, and Special Requirements), the following means and methods are lawful during the time periods set forth in paragraph (5) of this section:

(A) shotguns capable of holding more than three shells; and

(B) electronic calling devices.

(2) Possession. During the time periods set forth in paragraph (5) of this section:

(A) there shall be no bag or possession limits; and

(B) the provisions of §65.312 of this title (relating to Possession of Migratory Game Birds) do not apply; and

(C) a person may give, leave, receive, or possess legally taken light geese or their parts, provided the birds are accompanied by a wildlife resource document from the person who killed the birds. The wildlife resource document is not required if the possessor lawfully killed the birds; the birds are transferred at the personal residence of the donor or donee; or the possessor also possesses a valid hunting license, a valid waterfowl stamp, and is HIP certified. The wildlife resource document shall accompany the birds until the birds reach their final destination, and must contain the following information:

(i) the name, signature, address, and hunting license number of the person who killed the birds;

(ii) the name of the person receiving the birds;

(iii) the number and species of birds or parts;

(iv) the date the birds were killed; and

(v) the location where the birds were killed (e.g., name of ranch; area; lake, bay, or stream; county).

(3) Shooting hours. During the time periods set forth in paragraph (4) of this section, shooting hours are from one half-hour before sunrise until one half-hour after sunset.

(4) Special Light Goose Conservation Period.

(A) From January 20, 2003 [January 21, 2001] through March 30, 2003 [March 31,2001], the take of light geese is lawful in the Eastern Zone as defined in §65.317 of this title (relating to Zones and Boundaries for Late Season Species).

(B) From February 10, 2003 [February 11, 2001] through March 30, 2003 [March 31, 2001], the take of light geese is lawful in the Western Zone as defined in §65.317 of this title (relating to Zones and Boundaries for Late Season Species).

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. 7
Presenter: Gene McCarty

Regulations Committee
Commission Policy Manual Resolution/
Designation of Official Nonprofit
April 2002

(This is Public Hearing Agenda Item No. 10.)


Committee Agenda Item No. 8
Presenter: John Herron

Regulations Committee
Nongame Regulations
April 2002

I. Discussion: Under Parks and Wildlife Code, Chapter 67, the department is required to conduct ongoing investigations of nongame fish and wildlife to develop information on populations, distribution, habitat needs, limiting factors, and any other biological or ecological data to determine appropriate management and regulatory information. The chapter also 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. Endangered species are regulated under authority of Parks and Wildlife Code, Chapter 68, which authorizes the department to make regulations necessary to establish 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.

In June of 1998, the commission adopted the current regulations governing the collection and sale of nongame wildlife. On the basis of staff analysis and input from the regulated community, staff recommends updating and simplifying the regulations. Staff will brief the Commission on several proposed changes that will clarify the permit requirements for collection and sale of nongame wildlife, reduce reporting for nongame collectors, and reduce the number of species for which a nongame dealers permit is required.

Under current endangered species regulations, no person is authorized to possess endangered species except the under the terms of a rehabilitation, scientific, educational, or zoological permit issued by the department under Parks and Wildlife Code, Chapter 43. However, under certain circumstances it is necessary for endangered and threatened animals to be temporarily possessed for relocation purposes, for example, in the course of roadway construction or power line maintenance. The current endangered species regulations do not address this type of scenario, and as Chapter 43 permits authorize specific activities at specific points in time, staff seeks to modify the state’s threatened and endangered species regulations to create a letter of authorization that would, under specific circumstances, allow named persons to relocate threatened and endangered species found in the course of survey, maintenance, or construction activity.

Attachments – 2

1. Exhibit A – Proposed Commercial Nongame Rules
2. Exhibit B – Proposed Endangered Species Rule


Commission Agenda Item No. 8
Exhibit A

Permits for the Collection and Sale of Nongame Wildlife
Proposal Preamble

1. Introduction.

The Texas Parks and Wildlife Department proposes amendments to §§65.325-65.327, and 65.329-65.331, and new §65.328, concerning Commercial Nongame Permits. The amendment to §65.325, concerning Applicability, eliminates language concerning the applicability of the regulations to certain species and is necessary because those species are being removed from the list of protected species. The amendment to §65.326, concerning Definitions, adds a definition of ‘export.’ The amendment is necessary to define an activity for enforcement purposes. The amendment to §65.327, concerning Permit Required, changes the name of the commercial collection permit to ‘nongame permit,’ stipulates that commercial nongame permit holders may purchase nongame wildlife only from persons holding a commercial or dealer’s nongame permit, and prohibits non-residents from engaging in commercial activities unless they possess a non-resident commercial dealer permit issued in their name . The amendment is necessary to make the name of the former commercial collection permit more accurately reflect the nature of the permitted activities, since many permit holders currently do not engage in collection activities; to create a mechanism for the agency to capture data that otherwise would be unavailable because of other aspects of this rulemaking that eliminate the reporting requirements for holders of the former commercial collection permit; and to prevent persons from engaging in commercial activities under a non-resident commercial dealer permit while posing as an employee of an out-of-state permit holder. New §65.328, concerning Means and Methods, establishes the lawful manners and devices that may be employed to take nongame wildlife. The new section is necessary to prevent the take of nontarget species, to prevent waste, and to ensure that persons engaged in the take of nongame wildlife under certain circumstance can be identified when not personally present. The amendment to §65.329, concerning Permit Application, makes nonsubstantive changes to reflect the name changes to the types of permits, and is necessary to maintain consistent regulatory terminology. The amendment to §65.330, concerning Record and Reporting Requirements, eliminates the required annual report for holders of general nongame permits, requires a separate permit to be purchased for each permanent place of business, with exceptions, sets the period of validity of a permit, and requires commercial nongame dealers to record, maintain, and report the permit number of nongame permit holder from whom they purchase or obtain nongame wildlife. The amendment is necessary to eliminate unnecessary paperwork for general nongame permit holders, as the department has determined that the data collected from them can be captured from reports submitted by nongame dealer permit holders. The amendment to §65.331, concerning Affected Species, removes species from the list of species to which the rules apply. The amendment is necessary because the department has collected enough data on certain species to assume that commercial trade in them currently poses little or no danger to their well-being in the wild.

2. Fiscal Note.

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 negligible fiscal implications to state and local governments as a result of enforcing or administering the rules.

3. Public Benefit - Cost Note.

Mr. Macdonald has also 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 discharge of the agency’s statutory duty under Parks and Wildlife Code, Chapter 67, to develop and administer management programs to insure the continued ability of nongame species of fish and wildlife to perpetuate themselves successfully.

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

(C) 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 not impact local economies.

(D) 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 Comments.

Comments on the proposed rules may be submitted to John Herron, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4771 or 1-800-792-1112 extension 4771 (e-mail: john.herron@tpwd.state.tx.us).

5. Statutory Authority.

The amendments are proposed under Parks and Wildlife Code, Chapter 67, which provides the commission with authority to establish any limits on the take, possession, propagation, transportation, importation, exportation, sale, or offering for sale of nongame fish or wildlife.

The proposed rules affect Parks and Wildlife Code, Chapter 67.

§65.325. Applicability.

(a) Except as provided in §65.330 of this title (relating to Record and Reporting Requirements) and subsection (b) of this section, this subchapter applies only to the nongame wildlife listed in §65.331 of this title (relating to Affected Species), living or dead, including parts of nongame wildlife and captive-bred nongame wildlife.

(b) This subchapter does not apply to:

(1) [dead mountain lions, bobcats, or coyotes;]

[(2)] fish;

(2) [(3)] the purchase, possession, or sale of processed products, except as provided in §65.327(d);

(3) [(4)] teachers at accredited primary or secondary educational institutions, provided that the nongame wildlife is possessed solely for educational purposes and is not sold or transferred to another person for the purpose of sale;

(4) [(5)] persons or establishments selling nongame wildlife for and ready for immediate consumption in individual portion servings, and which are subject to limited sales or use tax; or

(5) [(6)] any person [persons] 16 years of age or younger, provided the person is not engaged in a commercial activity involving nongame wildlife;

(6) [(7)] aquatic products possessed under a valid bait dealer's license[; or]

[(8) albinos of any species of nongame].

§65.326. 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 the Parks and Wildlife Code or regulatory definitions adopted under the authority of Parks and Wildlife Code.

(1) Captive-bred - Any wildlife born in captivity from parents held in captivity.

(2) Commercial activity - The sale, offer for sale, exchange, or barter of nongame wildlife.

(3) Export – The transport of nongame wildlife from Texas across a state or international boundary.

(4) [(3)] Possession - actual care, custody, or control of nongame wildlife.

(5) [(4)] Resale - Any transaction or activity in which a person purchases nongame wildlife or otherwise acquires nongame wildlife for a consideration and subsequently transfers or delivers the same nongame wildlife to any person in exchange for compensation or remuneration of any kind.

(6) [(5)] Processed product -

(A) nongame wildlife or parts of nongame wildlife that have been treated or prepared, by means other than refrigeration or freezing, to prevent decomposition; or

(B) parts of nongame wildlife that do not require treatment or preparation to prevent decomposition.

§65.327. Permit Required.

(a) Except as provided in this section or in §65.325 of this title (relating to Applicability), no person in this state may take, attempt to take, possess, import, export, or cause the export of nongame wildlife for the purpose of commercial activity [possess nongame wildlife for commercial purposes,] or possess more than [ten specimens of a single subspecies of nongame wildlife or more than] 25 specimens of nongame wildlife [in the aggregate,] unless that person possesses a valid commercial nongame [collection] permit or a valid dealer’s nongame [dealer]permit issued by the department.

(b) A person possessing a valid commercial nongame permit may sell nongame wildlife only to a person in possession of a valid dealer’s nongame permit.

(c) A person possessing a valid dealer’s nongame permit may sell nongame wildlife to anyone.

(d) [(b)] No person may collect nongame wildlife and subsequently treat it to create a processed product for sale, offer for sale, exchange, or barter unless that person possesses a valid dealer’s nongame permit.

(e) No person in this state may resell nongame wildlife unless that person possesses a valid dealer’s nongame [dealer] permit issued by the department.

(f) A nongame dealer may, through commercial activity, acquire nongame wildlife only from a person permitted under this subchapter or a lawful out of state source. [(c) No person may sell nongame wildlife unless that person possesses a valid commercial nongame collection permit.]

[(d) No person may for the purpose of sale, transport or ship nongame wildlife out of this state, or cause such transport or shipment, unless that person possesses an applicable, valid nongame permit issued by the department.]

(g) [(e)] Except as provided by subsection (h) [(f)] of this section, a permit required by this subchapter shall be possessed on the person of the permittee during any activity governed by this subchapter. A separate permit is required for each permanent place of business. An [however, an] employee of [the holder of] a nongame dealer [dealer's permit] may engage in commercial activity or the resale of nongame wildlife only at a permanent place of business operated by the permittee, provided that:

(1) the employer's permit or a legible photocopy of the permit is maintained at the place of business during all activities governed by this subchapter; and

(2) the place of business has been identified on the application required by §65.329 of this title (relating to Permit Application).

(h) [(f)] In the event that [the holder of] a nongame dealer [dealer’s permit] conducts a commercial activity [activities] at a place in addition to the permittee’s [a] permanent place of business, that person shall possess on their person the original or a legible photocopy of a valid nongame dealer’s permit [all such activities].

(i) [(g)] This subchapter does not relieve any person of the obligation to possess an appropriate hunting license for any activity involving the take of nongame wildlife.

(j) A permit issued under this subchapter is valid through the August 31 immediately following the date of issuance.

§65.328. Means and Methods.

(1) No person shall take or attempt to take nongame wildlife by means of any vacuum-powered device.

(2) Any device employed or emplaced to take or attempt to take nongame wildlife and that is unattended shall be marked with a gear tag. The gear tag must bear the name and address of the person using the device and the date the device was set out. The information on the gear tag must be legible. The gear tag is valid for 30 days following the date indicated on the tag.

(3) Any device used to take turtles shall be set such that:

(A) the opening or entrance to the device remains above water at all times; and

(B) the holding area of trap provides a sufficient area above water to prevent trapped turtles from drowning.

§65.329. Permit Application.

(1) An applicant for a dealer’s nongame permit under this subchapter shall submit to the department a completed application on a form supplied by the department, accompanied by the nonrefundable fee specified in Chapter 53 of this title (relating to Finance).

(2) The department reserves the right to refuse permit issuance to any person finally convicted of any violation of Parks and Wildlife Code during the five-year period immediately prior to an application for a permit under this subchapter. This paragraph does not apply to convictions under Parks and Wildlife Code, Chapter 31.

(3) The department shall not issue a permit to any person who has not complied with the applicable requirements of §65.330 of this title (relating to Reporting Requirements).

(4) Permits shall be issued to named individuals only, resident or nonresident as applicable, and shall not be issued in the name of any firm, organization, or institution.

§65.330. Record and Reporting Requirements.

(a) A person possessing a commercial nongame [collection] permit issued under this subchapter shall[:]

(1) maintain and possess upon their person during any permitted activity [collection activities] a daily [collection] log indicating the date, location, and number of specimens of each species collected and/or possessed during the period of validity of the permit[, which shall be presented upon the request of a department employee acting within the official scope of their duties]; and

(2) maintain a current daily record of all sales, to include the permit number of all nongame dealers purchasing nongame wildlife from the permittee [complete and submit to the department a annual report accompanied by the permittee's collection log, by the 15th of September of each year].

(b) A person possessing a nongame dealer permit shall:

(1) maintain a current daily record of all purchases and sales [, which shall be presented upon request to department employee acting within the official scope of their duties; and

(2) maintain a collection log, invoice, or receipt identifying the source or origin of each specimen of nongame wildlife in possession (to include the nongame permit number of all persons from whom nongame specimens are purchased or acquired) [, which shall be presented upon request to an employee of the department acting within the official scope of their duties; and]

[(3) complete and submit to the department an annual report by the 15th of September of each year.]

(c) A person possessing a permit issued under this subchapter shall complete and submit to the department, on a form supplied or approved by the department, an annual report for the period of August 1 through the following July 31. The report is due no later than August 15 of each year.

(d) All records 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 period of one year following the period of validity of the permit under which they are required to be kept.

§65.331. Affected Species. The following species are subject to the provisions of this subchapter.

Frogs and Toads

[Cope's gray treefrog (Hyla chrysoscelis)]

[Canyon treefrog (Hyla arenicolor)]

[Gray treefrog (Hyla versicolor)]

[Green treefrog (Hyla cinerea)]

[Squirrel treefrog (Hyla squirella)]

Couch's spadefoot (Scaphiopus couchi)

[Plains spadefoot (Scaphiopus bombifrons)]

[Northern cricket frog (Acris crepitans crepitans)]

[Blanchard's cricket frog (Acris crepitans blanchardi)]

[Coastal cricket frog (Acris crepitans paludicola)]

[Great plains toad (Bufo cognatu))]

[Eastern green toad (Bufo debilis debilis)]

Western green toad (Bufo debilis insidior)

[Red-spotted toad (Bufo punctatus)]

Texas toad (Bufo speciosus)

[Gulf Coast toad (Bufo valliceps valliceps)]

[Southwestern Woodhouse's toad (Bufo woodhousei australis)]

[East Texas Toad (Bufo woodhousei velatus)]

[Woodhouse's toad (Bufo woodhousei woodhousei)]

Bull frog (Rana catesbeiana)

[Southern leopard frog (Rana sphenocephala)]

[Bronze frog (Rana clamitans clamatans)]

[Pig frog (Rana grylio)]

Salamanders

Barred tiger salamander (Ambystoma tigrinum mavortium)

[Eastern tiger salamander (Ambystoma tigrinum tigrinum)]

[Marbled salamander (Ambystoma opacum)]

[Mole salamander (Ambystoma talpoideum)]

[Spotted salamander (Ambystoma maculatum)]

Turtles

Desert (Western) box turtle (Terrapene ornata luteola)

Ornate box turtle (Terrapene ornata ornata)

Three-toed (Eastern) box turtle (Terrapene carolina triunguis)

[Cagle's map turtle (Graptemys caglei)]

[Mississippi map turtle (Graptemys pseuogeographica kohnii)]

[Ouachita map turtle (Graptemys pseudogeographica ouachitensis)]

[Sabine map turtle (Graptemys pseudogeographica sabinensis)]

Texas map turtle (Graptemys versa)

Yellow mud turtle (Kinosternon flavescens flavescens)

[Mississippi (Eastern) mud turtle (Kinosternon subrubrum hippocrepis)]

[Western chicken turtle (Deirochelys reticularia miaria)]

Red-eared slider (Trachemys scripta elegans)

Midland smooth softshell turtle (Apalone muticus muticus) (Trionyx muticus) (old name)

Texas spiny softshell (Apalone spiniferus emoryi), (Trionyx spiniferus) (old genus name)

[Guadalupe spiny softshell (Apalone spiniferus guadalupensis)]

Western spiny softshell (Apalone spiniferus hartwegi)

[Pallid spiny softshell (Apalone spiniferus pallidus)]

[Metter's river cooter (Pseudemys concinna metteri)]

Texas river cooter (Pseudemys texana)

[Western painted turtle (Chrysemys picta belli)]

[Southern painted turtle (Chrysemys picta dorsalis)]

[Common snapping turtle (Chelydra serpentina serpentina)]

[Texas diamondback terrapin (Malaclemys terrapin littoralis)]

Lizards

[Texas alligator lizard (Gerrhonotus liocephalus infernalis)]

[Western slender glass lizard (Ophisaurus attenuatus attenuatus)]

[Green anole (Anolis carolinensis)]

Texas banded gecko (Coleonyx brevis)

Southwestern earless lizard (Cophosaurus texanus scitulus)

[Texas earless lizard (Cophosaurus texanus scitulus)]

Eastern collared lizard (Crotaphytus collaris collaris)

Chihuahuan collared lizard (Crotaphytus collaris fuscus)

Crevice spiny lizard (Sceloporus poinsettii poinsettii)

[Texas spiny lizard (Sceloporus olicaveus)]

[Twin-spotted (Desert)] spiny lizard (Sceloporus magister bimaculatus)]

[Northern (Eastern)] fence lizard (Sceloporus undulatus hyacinthinus)]

[Northern prairie lizard (Sceloporus undulatus garmani)]

[Southern Prairie lizard (Sceloporus undulatus consobrinus)]

[Big Bend canyon lizard (Sceloporus merriami annulatus)]

[Presidio canyon lizard (Sceloporus merriami longipunctatus)]

[Merriam's canyon lizard (Sceloporus merriami merriami)]

[Longnose leopard lizard (Gambelia wislizeni wislizeni)]

[Eastern tree lizard (Urosaurus ornatus ornatus)]

[Big Bend tree lizard (Urosaurus ornatus schmidti)]

Desert side-blotched lizard (Uta stansburiana stejnegeri)

Roundtail horned lizard (Phrynosoma modestum)

[Broadhead skink (Eumeces laticeps)]

[Great plains skink (Eumeces obsoletus)]

[Ground skink (Scincella lateralis)]

[Gray-checkered whiptail (Cnemidophorus dixoni)]

[Chihuahuan spotted whiptail (Cnemidophorus exsanguis)]

[Texas spotted whiptail (Cnemidophorus gularis gularis)]

[Plateau spotted whiptail (Cnemidophorus gularis septemvittatus)]

[Trans-Pecos striped whiptail (Cnemidophorus inornatus heptagrammus)]

[Laredo striped whiptail (Cnemidophorus laredoensis)]

Marbled whiptail (Cnemidophorus marmoratus)

[New Mexico whiptail (Cnemidophorus neomexicanus)]

[Colorado checkered whiptail (Cnemidophorus tesselatus)]

[Desert grassland whiptail (Cnemidophorus uniparens)]

[Six-lined racerunner (Cnemidophorus sexlineatus sexlinieatus)]

[Prairie-lined racerunner (Cnemidophorus sexlineatus viridis)]

Snakes

[Baird's rat snake (Elaphe bairdi)]

[Texas rat snake (Elaphe obsoleta lindheimeri)]

[Trans-Pecos rat snake (Elaphe subocularis)]

[Great Plains rat snake (Elaphe guttata emoryi)]

[Rough green snake (Opheodrys aestivus)]

[Rough earth snake (Virginia striatula)]

[Western smooth earth snake (Virginia valeriae elegans)]

[Ground snake (Sonora semiannulata)]

[Yellowbelly water snake (Nerodia erythrogaster flavigaster))]

[Gray-banded kingsnake (Lampropeltis alterna)]

[Louisiana milk snake (Lampropeltis triangulum amaura)]

[Mexican milk snake (Lampropeltis triangulum annulata)]

[New Mexico milk snake (Lampropeltis triangulum celaenops)]

[Central plains milk snake (Lampropeltis triangulum gentilis)]

[Speckled kingsnake (Lampropeltis getulus holbrooki)]

[Desert kingsnake (Lampropeltis getulus splendida))]

[Bullsnake (Pituophis melanoleucus sayi)]

[Texas longnose snake (Rhinocheilus lecontei tessallatus)]

[Eastern coachwhip (Masticophis flagellum flagellum))]

[Western coachwhip (Masticophis flagellum testaceus))]

[Central Texas whipsnake (Masticophis taeniatus girardi)]

[Desert Striped whipsnake (Masticophis taeniatus taeniatus)]

[Eastern garter snake (Thamnophis sirtalis sirtalis)]

[Texas garter snake (Thamnophis sirtalis annectans))]

[New Mexico garter snake (Thamnophis sirtalis dorsalis))]

Plains garter snake (Thamnophis radix haydenii)

[Checkered garter snake (Thamnophis marcianus marcianus)]

[Eastern blackneck garter snake (Thamnophis cyrtopsis ocellatus))]

[Western blackneck garter snake (Thamnophis cyrtopsis cyrtopsis))]

[Western ribbon snake (Thamnophis proximus proximus)]

[Redstripe ribbon snake (Thamnophis proximus rubrilineatus))]

[Gulf Coast ribbon snake (Thamnophis proximus orarius))]

[Arid land ribbon snake (Thamnophis proximus diabolicus))]

[Mississippi ringneck snake (Diadophis punctatus strictogenys)]

Prairie ringneck snake (Diadophis punctatus arnyi)

[Regal ringneck snake (Diadophis punctatus regalis)]

[Kansas glossy snake (Arizona elegans elegans)]

[Texas glossy snake (Arizona elegans arenicola))]

[Painted desert glossy snake (Arizona elegans philipi))]

[Plains (western)] hognose snake (Heterodon nasicus nasicus)]

[Dusty hognose snake (Heterodon nasicus gloydi))]

[Mexican hognose snake (Heterodon nasicus kennerlyi))]

[Eastern hognose snake (Heterodon platyrhinos)]

[Mountain patchnose snake (Salvadora grahamiae grahamiae)]

[Texas patchnose snake (Salvadora grahamiae lineata))]

[Big Bend patchnose snake (Salvadora deserticola)]

[Texas coral snake (Micrurus fulvius tenere))]

[Southern copperhead (Agkistrodon contortrix contortrix)]

[Broad-banded copperhead (Agkistrodon contortrix laticinctus)]

[Trans-Pecos copperhead (Agkistrodon contortrix pictigaster)]

[Western cottonmouth (Agkistrodon piscivorus leucostoma)]

Western diamondback rattlesnake (Crotalus atrox))

[Prairie rattlesnake (Crotalus viridis viridis)]

[Mottled rock rattlesnake (Crotalus lepidus lepidus)]

[Banded rock rattlesnake (Crotalus lepidus klauberi)]

[Northern blacktail rattlesnake (Crotalus molossus molossus)]

[Western massasauga (Sistrurus catenatus tergeminus)]

[Desert massasauga (Sistrurus catenatus edwardsii)]

[Pygmy rattlesnake (Sistrurus miliarius)]

Mammals

[Order Chiroptera - BATS]

[Brazilian Free-tailed Bat - (Tadarida brasiliensis)]

Order Lagomorpha - RABBITS

Black-tailed Jackrabbit - (Lepus Californicus)

Order Rodentia - RODENTS

Squirrels

[Texas Antelope Squirrel - (Ammospermophilus interpres)]

[Mexican Ground Squirrel - (Spermophilus mexicanus)]

[Spotted Ground Squirrel - (Spermophilus spilosoma)]

[Thirteen-lined Ground Squirrel - (Spermophilus tridecemlineatus)]

[Rock Squirrel - (Spermophilus variegatus)]

Black-tailed Prairie Dog - (Cynomys ludovicianus)

[Eastern Flying Squirrel - (Glaucomys volans)]

[Pocket Gophers]

[Botta's Pocket Gopher - (Thomomys bottae)]

[Desert Pocket Gopher - (Geomys arenarius)]

[Attwater's Pocket Gopher - (Geomys attwateri)]

[Baird's Pocket Gopher - (Geomys breviceps)]

[Plains Pocket Gopher - (Geomys bursarius)]

[Jones' Pocket Gopher - (Geomys knoxjonesi)]

[Texas Pocket Gopher - (Geomys personatus)]

[Llano Pocket Gopher - (Geomys texensis)]

[Yellow-faced Pocket Gopher (Cratogeomys castanops)]

[Pocket Mice]

[Pains Pocket Mouse - (Perognathus flavescens)]

[Slky Pocket Mouse - (Perognathus flavus)]

[Mrriam's Pocket Mouse - (Perognathus merriami)]

[Hispid Pocket Mouse - (Chaetodipus hispidus)]

[Rock Pocket Mouse - (Chaetodipus intermedius)]

[Nelson's Pocket Mouse - (Chaetodipus nelsoni)]

[Desert Pocket Mouse - (Chaetodipus penicillatus)]

[Gulf Coast Kangaroo Rat - (Dipodomys compactus)]

[Texas Kangaroo Rat - (Dipodomys elator)]

[Merriam's Kangaroo Rat - (Dipodomys merriami)]

[Ord's Kangaroo Rat - (Dipodomys ordii)]

[Banner-tailed Kangaroo Rat - (Dipodomys spectabilis)]

[Mexican Spiny Pocket Mouse - (Liomys irroratus)]

[Mice and Rats]

[Fulvous Harvest Mouse - (Reithrodontomys fulvescens)]

[Eastern Harvest Mouse - (Reithrodontomys humulis)]

[Western Harvest Mouse - (Reithrodontomys megalotis)]

[Plains Harvest Mouse - (Reithrodontomys montanus)]

[Texas Mouse - (Peromyscus attwateri)]

[Brush Mouse - (Peromyscus boylii)]

[Cactus Mouse - (Peromyscus eremicus)]

[Cotton Mouse - (Peromyscus gossypinus)]

[White-footed Mouse - (Peromyscus leucopus)]

[Deer Mouse - (Peromyscus maniculatus)]

[Northern Rock Mouse - (Peromyscus nasutus)]

[White-ankled Mouse - (Peromyscus pectoralis)]

[Pinon Mouse - (Peromyscus truei)]

[Golden Mouse - (Ochrotomys nuttalli)]

[Northern Pygmy Mouse - (Baiomys taylori)]

[Mearns' Grasshopper Mouse - (Onychomys arenicola)]

[Northern Grasshopper Mouse - (Onychomys leucogaster)]

[White-throated Woodrat - (Neotoma albigula)]

[Eastern Woodrat - (Neotoma floridana)]

[Mexican Woodrat - (Neotoma mexicana)]

[Southern Plains Woodrat - (Neotoma micropus)]

[Mexican Vole - (Microtus mexicanus)]

[Prairie Vole - (Microtus ochrogaster)]

[Woodland Vole - (Microtus pinetorum)]

[Porcupine Family]

[Porcupine - (Erethizon dorsatum)]

[Order Carnivora - CARNIVORES]

[Dog Family]

[Coyote - (Canis latrans)]

[Cat Family]

[Mountain Lion - (Felis concolor)]

[Bobcat - (Lynx rufus)]


Commission Agenda Item No. 8
Exhibit B

Threatened and Endangered Nongame Species Proclamation
Proposal Preamble

1. Introduction.

The Texas Parks and Wildlife Department proposes an amendment to §65.173, concerning Special Provisions. The amendment would allow the department to issue a letter of authorization under specific circumstances, to named individuals, which would authorize the temporary possession of threatened and endangered species for relocation purposes. The amendment is necessary because in the course of certain activities, such as power line maintenance and roadway construction, work crews occasionally encounter threatened and endangered animals that must be relocated.

2. Fiscal Note.

Robert Macdonald, regulations coordinator, 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 or local governments as a result of enforcing or administering the rule.

3. Public Benefit - Cost Note.

Mr. Macdonald 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 protection of threatened and endangered resources.

(B) There will be no effect on small businesses, microbusinesses, or persons required to comply with the rule as proposed.

(C) 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 rule as proposed will not impact local economies.

(D) 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.

4. Request for Public Comments.

Comments on the proposed rules may be submitted to Paul Robertson, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 912-7044 or 1-800-792-1112 extension 7044 (e-mail: paul.robertson@tpwd.state.tx.us).

5. Statutory Authority.

The rule is 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 under Chapter 68, which authorizes the commission to make regulations necessary to administer the provisions of the chapter and to attain its objectives, including regulations to govern 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 rules affect Parks and Wildlife Code, Chapters 67 and 68.

§65.173. Special Provisions.

(1) No person may release a threatened or endangered species except as specifically provided by the department in a letter of authorization issued prior to release.

(2) The department may issue a letter of authorization allowing the temporary possession of threatened and endangered species for relocation purposes.

(A) Letters of authorization shall be issued only to competent persons experienced in the biological sciences who are:

(i) employed by a governmental entity; or

(ii) engaged in paid environmental consultancy regarding the activities for which the letter of authorization is sought.

(B) Letters of authorization shall be issued to named persons only.

(C) The activities authorized by a letter of authorization shall be performed only by the person in whose name the letter of authorization is issued.

(D) All animals possessed under a letter of authorization shall be relocated and released as quickly as possible without placing avoidable stress on the animals.

(E) All relocated animals shall be released to suitable habit.

(F) A letter of authorization does not absolve any person from compliance with any other applicable state or federal law.

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


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