Regulations Committee

Wednesday, 9:00 a.m., Nov. 7, 2001

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. "Closed Season" for Crab Traps in Texas Coastal Waters
Staff: Hal Osburn
3
3. Floating Cabins
Staff: Dennis Johnston
7
4. Statewide Hunting and Fishing Regulations Review
Staff: Gary Graham, Hal Osburn, Phil Durocher
Committee Only
5. Chapter 58 Rule Review and Statewide Shrimp Fishery Proclamation
Staff: Hal Osburn
4
6. Chapter 58 Rule Review and Statewide Oyster Fishery Proclamation
Staff: Robin Riechers
Committee Only
7. Equine Anemia Regulations
Staff: Jerry Cooke
Committee Only
8. Texas Cervid Disease Issues
Staff: Jerry Cooke
Committee Only
9. Other Business  

Summary of Minutes
Texas Parks and Wildlife Commission
Regulations Committee

August 29, 2001

BE IT REMEMBERED that heretofore on the 29th day of August 2001, 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. COMMISSION ATTENDANCE

Chair: Katharine Armstrong Idsal

Joseph Fitzsimons, Committee Chair
Donato D. Ramos
Carol Dinkins
Philip Montgomery
Alvin L. Henry
Ernest Angelo, Jr.
John Avila, Jr. (absent)
Mark E. Watson

II. OPENING STATEMENT: Chairman Idsal called the meeting to order at 9:00 a.m. Executive Director Andrew Sansom read the opening statement for the record.

Chairman Idsal then introduced new Commissioner Mr. Donato D. Ramos from Laredo. The Chair then noted that the ad hoc Committee on Education is now a permanent committee to be chaired by Commissioner Henry.

Commission Chairman Idsal turned the meeting over to Commissioner Fitzsimons, Chair of the Regulations Committee. Chairman Fitzsimons called for a motion to approve the minutes of the last Regulations Committee meeting. Commissioner Dinkins so moved and Commissioner Montgomery seconded. Motion passed unanimously.

III. THE FOLLOWING ITEMS WERE PRESENTED TO THE REGULATIONS COMMITTEE:

1. Chairman’s Charges

Presenter: Andrew Sansom

Mr. Sansom briefed the Committee on the status of the new Chairman’s Charges issued by Chairman Idsal. He noted the majority of charges stem from implementation of the agency’s Sunset Bill, S.B. 305 which included: 1) creation of a training program for new Commission members to inform members of applicable laws, regulations, and information on department functions; 2) review Regulations Committee structure to insure adequate public input prior to decision-making; 3) to define a “major decision” of the Commission; 4) develop a complaint management policy and process; 5) to conduct a comprehensive 5-year study of shrimp resources, and for that purpose solicit input from the public, industry, businesses and Comptroller, and to base all subsequent shrimp-related policies upon the results of this document. Additional legislation provided authority to 1) regulate the hunting, sale, and possession of bats; 2)develop guidelines for removal and disposal of abandoned or illegal crab traps; 3) develop rules regulating floating cabins; 4) establish fishing license exemptions for certain mentally retarded persons; 5) develop standards for land use qualifying for appraisal as wildlife management, and remove civil restitution and penalties for improper display of commercial shrimp boat license, or if there is a violation of the captain’s license. Chairman Fitzsimons called for questions. There were none.

2. Deer Management Permit Proclamation

Presenters: Dr. Jerry Cooke

The chair recognized Dr. Jerry Cooke Branch Chief of the Wildlife Division. Dr. Cooke presented proposed changes to the Deer Management Permit Proclamation which included: 1) place permit sale on an annual cycle where it would be valid from September 1, or the date of purchase (whichever is later) through the following August 31; 2) require that deer released from a deer management permit breeding facility may not be released until April 1; and 3) to establish a single application approval process and to enable any biologist or technician to write and approve wildlife management plans as long as they are assigned to do so.

Commissioner Montgomery asked about the significance of the April 1 date. Dr. Cooke responded that it was a biological and an animal welfare issue in that a bred deer cannot be transported safely after that date without potential injury to the deer and its fetus.

Vice-Chair Idsal asked Dr. Cooke to clarify how many more individuals will be involved in the approval process. Dr. Cooke noted that it would rise from 8-15 people to about 200.

Chairman Fitzsimons asked how many permits there were. Dr. Cooke indicated there were seven, and clarified that the new proposed rules would streamline the application process.

Commissioner Ramos asked how an individual would qualify to be able to write a game management plan. Dr. Cooke explained that it was a learning and training process within the Division and at some point, and individual was given the assignment to write plans. Chairman Fitzsimons called for further questions. There were none.

3. Migratory Game Bird Proclamation - - Late Season

Presenter: Vernon Bevill

Chairman Fitzsimons called on Vernon Bevill, Game Bird Program Director, to present proposed changes to the Migratory Game Bird Proclamation, Late Season Species. Key points of the presentation included: 1) Bag and season length for geese in the Western goose zone will remain the same as it was last year, except for the calendar shift; 2) Season length and bag limit for the Eastern goose zone will be the same as last year, accounting for the calendar shift; 3) the light goose conservation period would begin in the Western zone, the day after regular goose season ends, and in the Eastern zone, on January 21, each zone season running through March 31; 4) shift the northeast portion of sandhill crane zone B so boundary matches Eastern goose zone boundary; 5) reduce the amount of closed area in sandhill crane zone C and reduce the bag from 3 birds to 2; 6) duck and coot season will remain the same, accounting for calendar shift; and 7) propose a 25-day, 1 bird bag canvasback season for the last 25-days of the regular duck season statewide. Mr. Bevill noted that staff had very light amount of public comment, and that he and Dr. Gray Graham, Wildlife Division Director conducted a conference call with the Game Bird Advisory Board where the late season proposals were discussed. Mr. Bevill related that the Game Bird Advisory Board was interested in operating the South Zone duck season similar to the North Zone duck season.

Commissioner Angelo asked what the forecast on duck migration was for this year. Mr. Bevill responded that it was good in spite of dry weather in Canada. Mr. Sansom asked Mr. Bevill to update the commissioners on the status of the snow goose situation in the Central Flyway. He related that indications were that the effort does seem to be having a positive impact, and light goose populations seem to be declining somewhat. The Environmental Impact Statement from Fish and Wildlife Service would not be completed until about next March.

Chairman Fitzsimons asked what the new set of federal standards might be. Mr. Bevill responded he believed they would be much the same as they are currently. However, many managers of various flyways have noted they could use additional tools relative to the snow goose management strategies. Chairman Fitzsimons asked Mr. Bevill review the progress of the snow goose conservation strategy. Mr. Bevill related that the rate of degradation of habitat has slowed somewhat, based on satellite images of the Hudson Bay area. Managers should expect to see this rate continue to decline over the next 2-3 years. However, recovery of the area will take several human lifetimes.

Commissioner Montgomery asked about trends in the sandhill crane populations. Mr. Bevill indicated the mid-continent population was increasing. Also, genetic work is pointing to two populations rather than three which would better facilitate management of the species. Commissioner Montgomery further asked clarification of the closed area along the coast. Mr. Bevill answered it was for protection of the whooping crane population concentrated in that area.

Commissioner Ramos asked the rationale for the split duck season. Mr. Bevill explained 1) following a season closure, there is always a spike in duck harvest when the second split reopens, and 2) hunters like the idea of that spike, and also indicate they need a rest between seasons.

Chairman Fitzsimons asked for further questions. There were none.

4. “Closed Season” for Crab Traps in Texas Coastal Waters

Presenter: Hal Osburn

Chairman Fitzsimons introduced Hal Osburn, Coastal Fisheries Division Director. Mr. Osburn presented proposed regulations that would establish a closed season for the use of crab traps along the Texas coast as per authority granted by the Legislature under S.B. 1410. These proposals included: 1) establish a 16-day closure beginning February 16, 2002, which would apply to all crab trap users; 2) the first 7 days of the closure, traps would be illegal and could be confiscated by TPW law enforcement officers; 3) the subsequent 9 days, traps would be designated as abandoned and as such are litter whereby any citizen could pick up the traps and dispose of properly. Mr. Osburn noted that staff would solicit volunteers and sponsors to participate in this effort. He also emphasized since this was the first year of this program, staff would report back to the Commission with recommendations for further retrieval efforts.

Mr. Osburn continued with an additional proposal to no longer require a date on the gear tag that accompanies every crab trap. He indicated this proposal was at the request of industry and that staff recognized that the limited entry program and the buoy marking system will suffice to maintain adequate conservation of the resource. Mr. Osburn then read into the record a statement from Mr. Charles Moss, Chairman of the Texas Parks and Wildlife Crab Advisory Committee in which Mr. Moss stated his full support of the crab trap removal program.

Mr. Osburn introduced Mr. Robert “Rabbit” Chandler a commercial finfish fisherman and commercial crabber. Mr. Chandler explained to the Committee how a crab trap operates, and the conservation components of a trap including escape rings and degradable panels. Vice-Chair Idsal asked Mr. Chandler how long the wire fasteners on the degradable panels last. Mr. Chandler indicated they last from 35 to 40 days which is about right for the industry. He also noted his cost of the particular trap he demonstrated was $12.25 to have it constructed. Chairman Fitzsimons asked how that price compared with a trap he built himself. Mr. Chandler said it would be about $6.25. Mr. Sansom asked how often he checked his string of traps. Mr. Chandler explained he runs them mostly every other day, sometimes every day.

Some discussion occurred over trap color and identification. Mr. Chandler noted every crabber did something unique to their traps for identification, and that theft came predominantly from recreational fishermen who did not know better.

Commissioner Angelo asked how Mr. Chandler saw status of the crab population. Mr. Chandler stated that it was good, but environmental conditions (floods and drought) have caused some low catches in certain areas. He anticipated a better answer in about 90 days.

Various Commissioners thanked Mr. Chandler for being at the meeting and for being part of the solution regarding abandoned crab traps.

Commissioner Angelo asked Mr. Osburn to elaborate on the process of picking up the abandoned crab traps. Mr. Osburn noted that staff was in the process of establishing protocols for the program, and making contacts with volunteer groups and potential sponsors, including recycle companies. Commissioner Angelo followed asking how difficult it would be to find traps without floats. Mr. Osburn responded that low tides during that period would make it easier to find them, and that staff was looking into the possibility of obtaining air boats to facilitate recovery of traps in very shallow water.

Commissioner Henry asked if staff was proposing an organized volunteer program and if they have considered safety and other concerns. Mr. Osburn explained that once the traps were deemed litter (after the first 7 days of the closure), then any citizen could pick up and properly dispose of a trap found in the water. However, staff would make sure that volunteers understood the risks and to behave accordingly. Commissioner Henry continued asking if there were legal issues explored relative to potential injuries volunteers may incur. Mr. Osburn noted that there are many volunteer efforts throughout the agency where volunteers could be subject to injury. Staff has consulted with our agency legal staff to ensure that this program is incompliance with how other programs are operated. Commissioner Henry asked about issuing volunteers gloves. Mr. Osburn responded that issuing gloves to protect the hands of volunteers was one idea and that more ideas such as obtaining sponsors for such items would be forth coming. Commissioner Henry commented that the removal project is a great idea and eventhough we have the Legislative authority to conduct it we do not have the associated funding and the use of sponsors and volunteers will be important.

Commissioner Watson asked about the crab limited entry system and how many licenses have been bought to date. Mr. Osburn stated that we have had only one buy-back period and seven licenses were purchased. We are currently deciding on how many licenses to purchase in the current buy-back period and anticipate on more than seven. Recommendations will be forwarded to Mr. Andy Sansom in the next few weeks. Mr. Osburn stated we are not seeing the number of volunteer buy-backs as seen in the fishery and that this is hopefully an indication of crab fishermen being more optimistic of the fishery and intend on being full-time professionals. There are fewer fishermen in the limited entry system than was authorzed which may be attributed to some attrition outside of the buy-back system. Chairman Fitzsimons asked how many total licenses were in the crab fishery. Mr. Osburn stated two-hundred fifty-nine. There were no other questions and Chairman Fitzsimons authorized staff to publish this item in the Texas Register for the required public comment period.

5. Floating Cabins

Presenter: Dennis Johnston

Chairman Fitzsimons introduced Dennis Johnston, Director of Water Safety Law Enforcement. Mr. Johnston presented proposed regulations that would regulate the number of floating cabins in coastal waters as per authority granted by the Legislature under S.B. 1573. Mr. Johnston stated that the number of floating cabins has increased in the last few years due to the General Land Office not issuing permits for permanent floating cabins in coastal waters. This was demonstrated by slides of cabins on Baffin Bay comparing 1995 with June 2001. Mr. Johnston then stated that the 77th Legislature delegated to Texas Parks and Wildlife the authority to regulate floating cabins under S.B. 1573, which provided statutory requirements for the issuance of permits and regulatory authority to Texas Parks and Wildlife for the implementation of the program, including permit eligibility. Eligibility for a permit would include: 1.) an application by the owner, 2.) the cabin must be moored in coastal waters on August 31st, 3.) the cabin must float at high tide.

Permit application requirements would require: 1.) the owner/s must sign the application under penalty of perjury, 2.) the cabin location must be designated by GPS coordinates, 3.) photographs of the cabin must be supplied, 4.) measurements of length, height, and width must be given, 5.) a $1,500 cleanup deposit (to remain as long as the permit is issued for cleanup of abandoned cabins), 6.) application fee of $300. There is also a renewal and transfer fee of $300.

Mr. Johnston stated the statutory requirements also required a portable marine sanitation device on each cabin and made it a violation to discharge into public waters. These requirements also restrict cabins from mooring in State parks, State refuges, State sanctuaries or Coastal preserves, and also restricting or obstructing navigation. The statute also restricts damaging serpulid reefs, oyster reefs, sea grass beds, and resting on the bottom at high tide. Statutory requirements set civil and criminal penalties for violation of this statute. It authorizes the department to bring civil damages for violations of any of these rules and authorizes the department to set civil penalties of up to $1,000 a day for each day the cabin is not removed after notice. The removal process includes notices and authorizes removal 90 days after the final notice.

Mr. Johnston stated the regulatory process and language proposals in 31 T.A.C. 55.200 Floating Cabins will establish an annual permit period beginning September 1 through August 31st. Renewals are permitted with an application within 90 days after the license expiration. It also includes a relocation process to include a department application, and a requirement to restrict relocation to two time per year. It would allow for the removal of the cabin at any time during the year for repairs and replacement back at the permitted location. Also, proposed restrictions include: 1.) relocating within 1,000 feet of floating cabins or structures that are permitted by the Natural Resource Commission under Chapter 33, 2.) relocating within 250 feet of a pipeline. These proposals will establish marking requirements to include a display of the permit number on two opposite sides of the cabin and red or orange reflectors on each end of each side of the cabin for safety purposes. The proposals would establish a floating cabin purchase program including bid application procedures and awarding bids. The maximum fair market value of each cabin will be established based on size. The proposal will define which portable marine sanitation devices are suitable for transport of sewage for onshore disposal.

Commissioner Montgomery asked if the value of the permits would be based on the current market value of the cabin or from the demand value created from the limited number of permits available. Mr. Johnston answered that the maximum cabin value will be based on the size of the cabin and what the market value is. Cabin owners will be allowed to sell to each other and we will be able to capture the prices that those cabins sell for.

Commissioner Ramos asked whether there was a limitation on the size of the cabin. Mr. Johnston stated there is no limitation on the size of the cabin but once the cabin is permitted, the size cannot be increased. Commissioner Ramos asked how the fee structure was based. Mr. Johnston said it was based on the size of the cabin, with larger ones commanding a larger price. The permit is set by statute at $300. Commissioner Montgomery and Chairman Fitzsimons made several remarks about how to determine the actual permit value of a cabin. By reducing the number of permits available, the property value (commodity value) of the cabins will increase.

Commissioner Ramos asked if the regulating of cabins was due to a safety issue. Mr. Johnston stated the distance between cabins is not currently regulated and the proposal would allow at least 1,000 feet between the cabins or another structure permitted by the General Land Office.

A general discussion on the intent of the legislation and the buy-back option occurred between the Commissioners. Dr. McKinney responded that the legislation allows for a buy-back mechanism but that no funds are available of it at present. He stated that the most likely diminution of cabin numbers will be through attrition, as when hurricanes damage the cabins and the owners decide not to repair or rebuild them. Commissioner Angelo asked if TPW had been directed to start a buy-back program. Dr. McKinney stated that TPW had not been directed to provide the mechanism for such a program. Chairman Idsal asked Mr. Johnston to comment on the responses cabin owners have had on the program. Mr. Johnston stated that 170 floating cabins were identified by the end of June. Each cabin was mapped using GPS coordinates, with approximately 130 cabins on the lower coast and 40 on the upper. Notices were placed on all cabins stating the requirements of the program. About 160 applications were generated from the notice postings. In addition, phone calls were received from approximately 100 people.

Commissioner Ramos asked if the cabin needs to be at a certain level of maintenance before a permit is issued. Mr. Johnston responded that TPW only has the authority to make sure the cabin meets the marine sanitation, lighting, and identification requirements. Once issued, the permit can be revoked for any violation of the rules.

Mr. Johnston clarified some questions by stating that of the 170 cabins identified so far, some had obviously been abandoned some time ago. TPW does have the authority through the legislation to remove all nonpermitted cabins. Commissioner Montgomery asked if we can require certification of transfer and reporting of a sales price. Mr. Johnston stated that he believed we can through the statute. If the transfer was certifiable it could invalidate the transfer permit. Chairman Fitzsimons asked about bonding or other procedures to ensure cleanup of abandoned cabins. Mr. Johnston responded that the $1,500 deposit that must be paid by August 31 was designed to be used for cleanup efforts if the cabin was abandoned.

A discussion among the Commissioners revolved around property values. Commissioner Montgomery stated these cabins are personal property and Commissioner Dinkins stated there is no ownership rights involved, only permission to sit on State lands in State waters. She stated that cabin owners are getting a tremendous benefit by paying $300 a year versus someone who places a cabin on dry land and applies to be a leaseholder. Cabin owners are also getting a benefit at the expense of the general public by blocking navigable waters. Commissioner Ramos asked if there were any commercial restrictions placed in the proposed rules. Dr. McKinney responded that there are no specifics on commercial use but before that activity could take place the General Land Office would need to be involved.

Chairman Fitzsimons asked about the an inspection program on the cabins before transferability. Mr. Johnston explained that there is a provision in the proposal that allows for an inspection before transferring a cabin. The person transferring the cabin is required to submit an application, and at that time an inspection can be done if deemed necessary. However an inspection is not required, just an application. Commissioners Ramos and Montgomery, and Chairman Fitzsimons were concerned about the insurance of an inspection of cabins before transfers. Mr. Johnston responded that cabins will be inspected prior to the issuance of a permit and each year prior to renewal. Cabins cannot be relocated without filing a relocation application. Dr. McKinney clarified direction from Chairman Fitzsimons that it is the Commissions desire that inspections be conducted before cabins can be transferred. Chairman Fitzsimons authorized the staff to publish this item in the Texas Register for the required public comment period.

6. Other Business: There was no other business. The Regulations Committee was adjourned.


Committee Agenda Item No. 1

Regulations Committee
Chairman's Charges
November 2001

(This item will be an oral presentation.)


Committee Agenda Item No. 2
Presenter: Hal Osburn

Regulations Committee
"Closed Season" for Crab Traps in Texas Coastal Waters
November 2001

(This is Public Hearing Agenda Item No. 3.)


Committee Agenda Item No. 3
Presenter: Dennis Johnston

Floating Cabins
November 2001

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


Committee Agenda Item No. 4
Presenters: Gary Graham, Hal Osburn, Phil Durocher

Regulations Committee
Potential Changes to the Statewide Hunting
and Fishing Proclamation 2002-2003
November 2001

I. DISCUSSION: Responsibility for establishing seasons, bag limits, and means and methods for taking wildlife resources is delegated to the Texas Parks and Wildlife Commission under Parks and Wildlife Code, Chapter 61. The potential changes are based upon statutory requirements, including scientific investigation and required findings of fact where applicable. The potential changes are intended increase recreational opportunity, decrease regulatory complexity where possible, promote enforcement, and provide for the sound biological management of the wildlife resources of the state.

Attachments – 1
1. Exhibit A - Synopsis of potential changes to the Statewide Hunting and Fishing Proclamation for 2002-2003


Committee Agenda Item No. 4
Exhibit A

Potential Regulation Changes
Statewide Hunting and Fishing Proclamation
2002-2003

WILDLIFE

General:

House Bill 1, 75th Legislature, Regular Session, 1997, directs each state agency to perform a review of all regulations not less than every four years and to either readopt, amend, or repeal each rule, provided the agency has not acted on the rule in the interim. The Act further requires that each agency readopting a rule certify that the reasons for the rule continue to exist. Section 65.10 within the Statewide Hunting and Fishing Proclamation states “there is no open season on game animals or game birds on public roads and highways, the right-of-way of public roads and highways; or in any state-owned riverbed in Dimmit, Uvalde, and Zavala counties.” Parks and Wildlife Code, §61.053 (the statutory authority under which the commission creates open seasons), states: “The commission shall provide open seasons for the hunting, taking, or possession of game animals, game birds, or aquatic animal life if its investigations and findings of fact reveal that open seasons may be safely provided or if the threat of waste requires an open season to conserve game animals, game birds, or aquatic animal life.’ The provisions are no longer justifiable based on the original findings of fact, and in the absence of new findings of fact, must be repealed. Identical language also appears in the Migratory Game Bird Proclamation and the Fur-bearing Animal and Trapping Proclamation.

Current regulations require the unskinned head to remain attached to buck and antlerless deer for purposes of proof of sex. This regulation was intended to create consistency between deer and antelope requirements; however, the black cheek patch (which distinguishes sex in antelope) is not found in deer. The proposal would eliminate the requirement for deer.

Current regulations allow not more than two dogs to be used in trailing wounded deer in all counties save a select few in East Texas, where the use of dogs is prohibited entirely. This regulation was intended to prevent deer being hunted with dogs in East Texas. The proposal would allow the use of dogs to trail wounded deer in Bowie, Camp, Fannin, Franklin, Harrison, Hunt, Lamar, Morris, Panola, Red River, Rockwall, Rusk, Titus, and Wood counties. The proposal contends that the regulation is no longer needed in these counties.

White-tailed deer:

A proposal to modify the late youth-only season by allowing the harvest of buck deer and requiring antlerless deer to be harvested by permit only. This proposal corrects an oversight which allowed unrestricted antlerless harvest in counties where the antlerless harvest is restricted (i.e., ‘doe days’). The season would still only apply on properties and in counties where no other seasons are open on that weekend.

A proposal to make Level II Managed Lands Deer (MLD) buck permits valid for spike-antlered bucks from the Saturday closest to September 30 through the first day of the general season. Currently, Level II MLD buck permits are valid from the opening day of the general open season through the last Sunday in January and during any late or special open seasons. When antlerless deer are harvested, some spike bucks are inevitably harvested, despite the hunter’s care and experience. The proposal is intended to accommodate honest mistakes.

A proposal to allow buck deer to be taken by means of archery during the archery-only open season on Level II MLD properties. Currently the regulations do not allow buck deer to be harvested on Level II properties prior to the general season.

A proposal to increase the number of ‘doe days’ in Childress, Collingsworth, Cottle, Dickens, Donley Garza, Gray, Hall, Haskell, Hemphill, Kent, King, Lipscomb, Motley, Roberts, Scurry, and Wheeler counties. These counties currently have 16 ‘doe days;’ the proposal would allow antlerless deer to be taken without a permit from opening day through the first Sunday following Thanksgiving. The proposal contends that antlerless harvest continues to be very conservative despite the current harvest opportunity and the populations could easily sustain considerably more harvest.

A proposal to create a special regulation to define buck deer Austin, Colorado, Lavaca, Fayette, Lee, and Washington counties. The regulation would define a buck deer as ‘a deer having a hardened antler protruding through the skin and at least one unbranched antler, one antler with 6 or more points, or an inside spread measurement between the main beams of 13 inches or greater’. The proposal contends that hunting pressure on buck deer is intense (e.g., over the past thirty years bucks between 1.5 and 2.5 years of age constitute 74-91% of the buck harvest). The average spread of a 3.5 year old buck is 13 inches and the approximate distance between the tips of a buck deer’s ears is 13 inches. The proposal would be expected to protect approximately 65 % of the buck population annually. The proposal would anticipate maintaining this definition for 3 years.

Rio Grande Turkey:

A proposal to provide a Fall Season for Rio Grande turkey in Hill County. The proposal contends that a fall season can be safely provided.

Eastern Turkey:

A proposal to provide a standard Spring Season for Eastern turkey in Brazoria, Fort Bend, Matagorda, and Wharton counties. The proposal contends that these counties represent some of the strongest Eastern turkey populations in Texas.

INLAND FISHERIES

Purtis Creek State Park Lake (Henderson County)
Proposal

Current harvest regulations for sunfish consist of a 7-inch minimum length limit and a 25 fish per day bag limit. Regulations would be changed to no minimum length limit and no daily bag limit (statewide regulations).

Expected Results

Use of the 7-inch minimum length limit for sunfishes has not had any positive impact on the sunfish populations in the reservoir. Since Purtis Creek State Park Lake has the only sunfish harvest regulations in the state, removal of the regulation will improve consistency of regulations statewide and not negatively impact the population.

Gibbons Creek Reservoir (Grimes County)
Proposal

Current harvest regulation for largemouth bass is catch-and-release only with the exception that a largemouth bass greater than 21 inches can be weighed at a lakeside weigh station then immediately released or donated to the ShareLunker program. Regulations would be changed to 14-24 inch slot length limit and a five fish daily bag of which only one fish 24 inches or greater may be harvested per day.

Expected Results

Changing the largemouth bass length limit from catch-and-release only to a 14-24 inch slot-length limit will allow some harvest of smaller stock size bass as well as trophy largemouth bass. Additionally, this change is designed to renew angling interest in Gibbons Creek Reservoir and increase visitation to the reservoir.

Brushy Creek Lake (Williamson County)
Proposal

Current harvest regulations for largemouth bass consist of a 14-inch minimum length limit and a 5 fish daily bag limit. Regulations would be changed to an 18-inch minimum length limit and five fish daily bag limit.

Expected Results

Protecting largemouth bass to 18 inches on this small impoundment should protect 14-18 inch bass from over harvest preventing a decrease in the quality of the fishery when the park is opened to the public. The park and lake are scheduled for opening in August 2002

Coleto Creek Reservoir (Goliad and Victoria Counties)
Proposal

Current statewide harvest regulations for red drum consist of a 20-28-inch reverse slot limit (fish between 20 and 28 inches can be harvested) and a three fish daily bag limit. Regulations would be changed to a 20-inch minimum length limit and a three fish daily bag limit.

Expected Results

The 20-inch minimum length limit and three fish daily bag limit is the standard regulation used on all freshwater reservoirs with red drum populations. The regulation is designed allow fish to reach a harvestable size and spread the resource among many anglers.

COASTAL FISHERIES

Changes in size and bag limits for spotted seatrout to increase the opportunity for catching trophy-sized fish.

Changes in the licensing criteria and bag limits on select species for fishing guides

Requiring all fish landed from Texas coastal waters to conform to Texas size and bag limits. This will primarily address a concern about excessive harvest of fish in Sabine Lake caught under Louisiana size and bag limits.


Committee Agenda Item No. 5
Presenter: Hal Osburn

Chapter 58 Rule Review and Statewide Shrimp Fishery Proclamation Review
November 2001

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


Committee Agenda Item No. 6
Presenter: Robin Riechers

Regulations Committee
Chapter 58 Rule Review and Statewide Oyster Fishery Proclamation Amendments
November 2001

I. DISCUSSION: House Bill 1, 75th Legislature, Regular Session, 1997, Article IX, Sec. 167, directs each state agency to perform a review of all regulations not less than every four years and to either readopt, amend, or repeal each rule, provided the agency has not acted on the rule in the interim. The Act further requires that each agency readopting a rule certify that the reasons for the rule continue to exist. The department in August of 1998 published in the Texas Register a Notice of Plan to Review, in which the agency outlined a proposed schedule for undertaking the required review.

This item proposes a Rule Review for 31 TAC Chapter 58, Subchapter A (Oyster Fishery Proclamation). Additionally, staff proposes amendments to those sections of the subchapter regarding oyster lease rules. Proposed amendments are initiated at the direction of Senate Bill 305, 77th Legislature, Regular Session. Amendments include edit items for clarification and proposed amendments to provide consistency with Parks and Wildlife Code Chapter 76 as modified in Senate Bill 305. The proposed amendments include:

Attachment – 1
1. Exhibit A – Chapter 58 - Notice of Intent and Proposed Amendments


Committee Agenda Item No. 6
Exhibit A

Notice of Intent to Review

The Texas Parks and Wildlife Department files this notice of intention to review Texas Administrative Code Title 31, Part II, as follows:

Chapter 58: Oyster and Shrimp

Subchapter A: Statewide Oyster Fishery Proclamation

§58.10. Application
§58.11. Definitions
§58.12. Texas Oyster Fishery Management Plan
§58.21. Taking or Attempting to Take Oysters from Public Oyster Beds: General Rules
§58.22. Commercial Fishing
§58.23. Non-Commercial (Recreational) Fishing
§58.24. Penalties
§58.30. Private Oyster Leases
§58.40. Oyster Transplant Permits
§58.50. Oyster Harvest Permits
§58.60. Transplant or Harvest Permit Cancellation

This review is pursuant to the Texas Government Code, §2001.039, and the General Appropriations Act of 1997, Article IX, 75th Legislature, Regular Session.

The Commission will accept comments for 30 days following the publication of this notice in the Texas Register as to whether the reasons for adopting the sections under review continue to exist and to determine whether the rules reflect current legal, policy, and procedural considerations. Final consideration of this rules review is scheduled for the Parks and Wildlife Commission on January 17, 2002.

OYSTER FISHERY PROCLAMATION

§58.10. Application.

(a) This subchapter applies to the taking, attempting to take, possession, purchase, and sale of oyster resources in the salt waters of Texas. It carries out the Commission's rulemaking authority granted by the legislature in Parks and Wildlife Code, Chapter 76. The law covering the taking, attempting to take, possession, purchase, and sale of oyster resources in the salt waters of Texas is set forth in both Parks and Wildlife Code, Chapter 76 and this subchapter whereby the provisions of this subchapter prevail over any conflicting provision of Parks and Wildlife Code, Chapter 76 to the extent of the conflict as set forth in Parks and Wildlife Code, §76.301.

(b) This subchapter also applies to private oyster leases including the permitting and marking of, as well as transplant of oysters to, and harvest of oysters from private oyster leases.

§58.11. Definitions.

The following words and terms, when used in the subchapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Approved area—A molluscan shellfish growing area determined to be acceptable for harvesting of molluscan shellfish for direct marketing according to the National Shellfish Sanitation Program (NSSP).

(2) Barrel of oysters— As defined in Parks and Wildlife Code, §76.001, a barrel of oysters is equal to three boxes (bushels) of oysters in the shell. The dimensions of a box are ten inches by 20 inches by 13 1/2 inches. In filling a box for measurement the oysters may not be piled more than 2 1/2 inches above the height of the box at the center. Two gallons of shucked oysters without shells equals one barrel of oysters in the shell.

(3) Conditionally approved area—The classification of a shellfish growing area determined by the Texas Department of Health Seafood Safety Division to meet approved area criteria for a predictable period. The period is conditional upon established performance standards specified in a management plan. A conditionally approved area is a restricted area when the area does not meet the approved growing area criteria.

(4) Commission—Refers to the nine member Texas Parks and Wildlife Department.

(5) Department—Refers to the Texas Parks and Wildlife Department.

(6) Natural oyster bed (reef)— As defined in Parks and Wildlife Code, §76.051, a [A] natural oyster bed exists when at least five barrels of oysters are found within 2,500 square feet of any position on a reef.

(7) Oyster—That species of molluscan shellfish identified as the Eastern oyster, Crassostrea virginica and its subspecies. No other species of molluscan shellfish are included within this proclamation.

(8) Possess—The act of having in possession or control, keeping, detaining, restraining, or holding as owner, or under a fishing ley, or as an agent, bailee, or custodian of another.

(9) Private oyster lease—Those state water bottoms leased from the state for the purpose of producing oysters to individuals or corporations incorporated under the laws of this state.

(10) Prohibited area—The classification of a shellfish growing area determined by the Texas Department of Health Seafood Safety Division to be unacceptable for the transplanting, gathering for depuration, or harvesting of shellfish. The only shellfish removal permitted from a prohibited area is for the purpose of depletion, as defined in the Control of Harvesting Section of Part 1 of the NSSP.

(11) Public oyster bed (reef)—As defined in Parks and Wildlife Code, §76.002, all natural oyster beds (reefs) are public. All oyster beds not designated as private are public.

(12) Restricted area—The classification of a shellfish growing area determined by the Texas Department of Health Seafood Safety Division to be unacceptable for harvesting of shellfish for direct marketing, but which is acceptable for transplanting or gathering for depuration. A restricted area may be closed for transplanting or gathering for depuration when the Seafood Safety Division determines that the area does not meet the restricted area criteria established in the NSSP.

§58.12. Texas Oyster Fishery Management Plan.

(a) The Oyster Fishery Management Plan and the Economic Impact Analysis are adopted by reference.

(b) Copies may be obtained at the Texas Parks and Wildlife Department offices at 4200 Smith School Road, Austin, Texas 78744.

§58.21. Taking or Attempting To Take Oysters from Public Oyster Beds: General Rules.

(a) Seasons and Times.

(1) The open season extends from November 1 of one year through April 30 of the following year.

(2) Legal oystering hours—sunrise to sunset.

(b) Size Limits and Possession of Undersized Oysters.

(1) Size limit—Legal oysters must be three inches or larger as measured along the greatest length of the shell.

(2) Oysters which are between 3/4 inch and three inches in length must be returned to the reef at the time of harvest.

(3) Unculled oysters shall be kept separate from culled oysters.

(4) It is unlawful for any person to take or possess a cargo of oysters more than 15% of which are between 3/4 inch and three inches measured from beak to bill or along an imaginary line through the long axis of the shell.

(c) Area Closures. There is no open public season for oysters from areas declared to be restricted or prohibited by the Texas Department of Health or areas closed by the Commission.

§58.22. Commercial Fishing.

(a) Gear Restrictions. It is unlawful while taking or attempting to take oysters for pay or for the purpose of sale, barter, or exchange or any other commercial purpose to:

(1) use more than one dredge;

(2) use a dredge which exceeds 48 inches in width and a two-barrel capacity;

(3) have more than one dredge connected in any manner to a winch, chain or other lifting device during the open public season; or

(4) have on board any dredge(s), other than the one connected to a winch, chain, or other lifting device, unless secured below deck, to or on the wheelhouse, or to the deck in such a manner as to not be readily accessible for use.

(b) Possession Limits. It is unlawful while taking or attempting to take oysters for pay or the purpose of sale, barter, or exchange or any other commercial purpose to have on board any licensed commercial oyster boat:

(1) more than 50 barrels of culled oysters of legal size; or

(2) more than two barrels of unculled oysters while on the reef.

(c) Reporting requirements. A dealer who purchases or receives oysters directly from any person other than a licensed dealer must file a report with the department each month as prescribed under Parks and Wildlife Code, §66.019(c).

§58.23. Non-Commercial (Recreational) Fishing.

(a) Gear Restrictions. It is unlawful while taking or attempting to take oysters for personal use to:

(1) use a dredge that exceeds 14 inches in width; or

(2) have more than one dredge connected in any manner to a winch, chain or other lifting device during the open public season; or

(3) have on board any dredge(s), other than the one connected to a winch, chain, or other lifting device, unless secured below deck, to or on the wheelhouse, or to the deck in such a manner as to not be readily accessible for use.

(b) Possession Limit. It is unlawful to take or possess more than two bushels of legal sized oysters per person.

(c) Prohibition of Sale. It is unlawful to sell oysters taken without a valid commercial oyster fishing license.

§58.24. Penalties.

The penalties for violation of this subchapter are prescribed by Parks and Wildlife Code, Chapter 76.

§58.30. Private Oyster Leases.

(a) General Rules.

(1) [Leases will not be granted on areas determined to be natural oyster beds or that have been publicly fished within eight years of the lease application.

(2)] No lease will be issued for [a lease on]:

(A) a natural oyster bed as prescribed in Parks and Wildlife Code, §76.001;

(B) an area that has been fished within eight years of the lease application as prescribed in Parks and Wildlife Code, §76.003;

(C[B]) a bay shore area within 100 yards of the shore as prescribed in Parks and Wildlife Code, §76.004;

(D[C]) an area subject to an exclusive riparian right as provided under Parks and Wildlife Code, §76.004 and §76.005;

(E [D]) an area already under certification as a private lease; or

(F[E]) an area within 1,000 feet of an established lease not owned or controlled by the applicant.

(2[3]) The term of the lease is 15 years as prescribed in Parks and Wildlife Code, §76.018. [Failure to pay any rental when due terminates the lease.]

(3) In accordance with the Oyster Fishery Management Plan the Department may accept oyster lease applications.

(b) Application For Oyster Lease.

(1) If [All] applications for private oyster leases are being accepted by the department if, they [will be submitted to the department for consideration and] shall be accompanied by a nonrefundable application fee for $200 [20].

(2) The applicant shall mark the proposed lease site or sites with temporary poles and/or buoys in such a manner that the outline of the site or sites can be clearly determined.

(3) Each application shall contain:

(A) applicant's name and address;

(B) affirmation that applicant is a United States citizen as prescribed in Parks and Wildlife Code, §76.006;

(C) a description of the lease, including a plat showing approximate size and location in relation to state land tracts; and

(D) signed letters each from the U.S. Army Corps of Engineers, General Land Office, and the Seafood Safety Division of the Texas Department of Health indicating approval for the proposed lease site.

(4) An authorized employee(s) of the department shall inspect the proposed lease site or sites to determine its location with respect to:

(A) natural oyster reefs;
(B) shoreline;
(C) areas restricted or prohibited by the Texas Department of Health;
(D) spoil disposal areas;
(E) other private leases; [and]
(F) riparian rights; and
(G) presence of exposed shell; and
(H) presence of live oysters.

[(5) An authorized employee(s) of the department shall inspect the proposed lease site or sites to determine the presence of exposed shell.

(6) If exposed shell is found within the proposed lease site or sites, an authorized employee(s) of the department shall determine the presence of live oysters.]

(c) Public Hearing on Application.

(1) After having determined the proposed lease site meets location and exposed shell requirements, the department shall:

(A) hold a public hearing to determine if the site has been publicly fished within eight years of the lease application;

(B) publish a notification of the date, time, and purpose of the public hearing at least once in a newspaper of general circulation in the county in which the proposed lease site is located;

(C) publish the notification between ten and 20 days prior to the public hearing;

(D) make available to the public information about the proposed lease site ten days prior to the date of the hearing; and

(E) present the investigation report at the public hearing.

(2) Persons objecting to the proposed lease must submit a sworn affidavit or testify under oath at the public hearing stating reasons for the objection.

(3) The department shall review findings of the public hearing and submit recommendations to the Coastal Fisheries Division Director for approval.

(4) The applicant will be notified within ten days after the hearing of either approval or denial of lease application.

(5) The application approved by the department will be forwarded to the Coastal Coordination Council for final approval.

(d) Approved Lease Procedures for Applicant.

(1) Applicant shall be responsible for having a final survey of the approved lease conducted by a registered surveyor who will furnish the department with survey notes and a plat of the lease showing:

(A) the location of the lease in relation to state land tract boundaries; [and]

(B) latitude and longitude [Loran]coordinates for all lease markers.

(2) The applicant shall mark the boundaries of the lease with buoys at the time of the final survey and maintain buoys until lease termination. Supplemental markers may be required along the lease boundaries if one corner marker is not clearly visible from another corner marker.

(A) All marker buoys must be:

(i) at least six inches in diameter;
(ii) at least three feet out of the water at mean high tide;
(iii) of a shape and color that is visible for at least 1/2 mile under normal weather conditions;
(iv) marked with the lease number (Buoys common to two or more leases must be marked with all lease numbers); (v) marked with at least two-inch high letters in plain Arabic block letters in a location where it will not be obscured by water or marine growth; and
(vi) marked with all required U.S. Coast Guard markings.
(B) Buoys must be anchored by:

(i) A screw anchor with a minimum one-inch galvanized sucker rod and 12-inch head inserted ten feet into the bottom; or
(ii) two anchors per buoy and each anchor having a minimum weight of 300 pounds.

(C) If replacement of buoys is necessary, original latitude and longitude [Loran] coordinates of the final survey must be used to relocate markers.

(3) An authorized employee(s) of the department shall inspect and verify latitude and longitude [Loran] coordinates.

(4) The department shall return approved application for appropriate registration by applicant with the county clerk in the county of location [as prescribed in Parks and Wildlife Code, §76.014].

(5) Rental Fee.

(A) [No rental fee is owed on any lease when oysters are not sold or marketed from the lease for a period of five years after the date of the establishment of the lease.

(B) When oysters are sold or marketed from the lease and thereafter, t] The holder of a[the] certificate of location shall pay to the department $[3]6.00 per acre of location [lease] per year.

(B[C]) Rental fees are due annually by March 1 as prescribed in Parks and Wildlife Code, § 76.017.

(C[D]) The holder of a certificate shall pay the department a late penalty fee equal to 10 percent of the amount due for any rental, transfer, sale, or renewal fee that is not paid when due as prescribed in Parks and Wildlife Code, § 76.017. [Failure to pay any rental when due terminates the lease.]

(D [E]) Failure to pay any rental, transfer, sale, renewal, or late penalty fee within 90 days of the due date terminates the lease as prescribed in Parks and Wildlife Code, § 76.017. [If oysters from the lease are not sold or marketed within five years from the date of establishment of the lease, the lease is void.]

(6) Lease Renewal.

(A) As prescribed in Parks and Wildlife Code, §76.018, at the end of a lease term the department shall determine the need for continuation of the lease based on:

(i) the need for depuration of polluted oysters; and

(ii) other considerations as specified in the Oyster Fishery Management Plan.

(B) If the lease is to be renewed under the conditions of the department as prescribed in Parks and Wildlife Code, §76.018, the lease-holder of record shall be offered the first right of refusal for renewal as prescribed in Parks and Wildlife Code, §76.018.

(C) A payment of $200 will be due upon renewal of the lease as prescribed in Parks and Wildlife Code, §76.018.

(D) The holder of a renewed certificate of location shall be responsible for having the lease resurveyed by a registered surveyor who will provide the department with survey notes and a plat of the lease showing:

(i) the location of the lease in relation to state land tract boundaries; [and]

(ii) latitude and longitude [Loran] coordinates for all lease markers; and

(iii) a new survey will be conducted and provided to the department within one year of the lease renewal;

(E) Failure to meet any conditions of the lease shall result in forfeiture of the lease.

(7) Lease Auction Procedures

(A) The department may auction a lease that is not renewed as prescribed by Parks and Wildlife Code, §76.018.

(B) The department may determine a minimum acceptable bid based on:

(i) bid offers from previous auctions;

(ii) established open market prices; and

(iii) other relevant factors.

(C) The department may refuse all bids below the minimum acceptable bid.

(D) The department must follow prescribed bid guidelines for state agencies.

(8) Lease Transfers or Sale as prescribed in Parks and Wildlife Code, §76.019.

(A) A transfer or sale of a lease does not change the terms of a lease.

(B) A payment of $200 will be due upon transfer or sale of a lease.

(C) A transfer fee will not be required when a lease is inherited.

(D) A completed transfer form prescribed by the department will be required at time of transfer.

§58.40. Oyster Transplant Permits.

(a) Oysters for transplanting to a private oyster lease may be taken only under a permit issued by the department.

(b) Oyster Transplant Application.

(1) The application for a transplant permit must include the following information:

(A) oyster lease number;

(B) name and address of the lease holder and/or that of his designated agent;

(C) name, if documented, and/or registration number of all boats to be used in transplanting operations;

(D) quantity of unculled oysters as prescribed in Parks and Wildlife Code, § 76.031 requested and description of areas from which the oysters are requested to be taken;

(E) a description of the type, number, and location of lease markers; and

(F) beginning and ending dates of transplant operations.

(2) Written applications for transplant permits must be received by the department ten days prior to the beginning of transplanting operations.

(3) Written applications for transplant permit amendments must be received by the department at least five days prior to the desired effective date of the amendment.

(4) No more than four transplant permits for a lease will be issued during a one month period.

(5) No transplant permit will be issued for an oyster lease while a harvest permit for the same lease is in effect.

(6) Transplant permits will be issued upon monthly verification and approval of lease markers by the department.

(7) A valid transplant permit must be on the vessel during any transplanting activities.

(8) Transplant permits will not be issued to any leaseholder who has not paid any rental, transfer, sale, renewal or late penalty fees which are owed to the department.

(c) Oyster Transplant Season and Times.

(1) The department shall establish the oyster transplant season giving consideration to information furnished to the department by leaseholders.

(2) All transplanting operations shall begin after sunrise and shall be completed before sunset each day.

(3) No transplanting will not be permitted on Saturdays, Sundays, major holidays, or on the same days that harvest operations are permitted.

(d) Transplant Restrictions.

(1) Transplanting of oysters is subject to the conditions and provisions described in the permit issued by the department.

(2) Oysters taken for the purposes of transplanting to a private oyster lease may be taken only from areas designated by the department as prescribed in Parks and Wildlife Code, § 76.033.

(3) Oysters may not normally be taken for the purpose of transplanting from the following areas:

(A) public oyster reefs in areas approved for oyster harvest and which have been subjected to any degree of oyster fishing in recent years;

(B) near-shore reefs around public or private fishing piers where a conflict of interest has arisen or might arise;

(C) reefs or areas in which the incidence of diseases, parasites, and/or predators have been judged potentially dangerous to the public reef fishery if the oysters are transplanted to other areas; or

(D) areas declared to be unsuitable for transplanting by the Texas Department of Health because of the presence of persistent chemicals or diseases that might be dangerous to public health.

(4) All oysters obtained under a transplant permit must be deposited upon the lease identified in the permit.

(5) The cargo of oysters transplanted will consist of unculled oysters and shell, unless specified otherwise.

(6) The permit may require oysters to be culled on the reef from which they are taken if the department determines that the reef area may be protected or improved by such action.

(7) The permit holder may cull the cargo of oysters on his oyster lease.

(8) Oysters may be transplanted only to a private oyster lease which is properly marked at all corners.

(9) No oysters may be transplanted to a lease adjacent to or adjoining a lease approved for harvest.

(e) Reporting Requirement. Weekly transplant reports must be prepared by the permittee at the end of each week and supplied to the department.

§58.50. Oyster Harvest Permits

. (a) Oysters may be harvested from a private lease only under a permit issued by the department.

(b) Oyster Harvest Application.

(1) Written application for a harvest permit must be received five days prior to the requested harvest dates and include the following:

(A) the oyster lease number;

(B) the name of the lease holder and/or that of his designated agent;

(C) the name and/or registration number of all boats to be used in harvesting operations; and

(D) beginning and ending dates for the permit.

(2) No more than four harvest permits for a lease will be issued during a one month period.

(3) A harvest permit will not be valid until 15 days after expiration of a transplant permit for the same lease or leases adjacent thereto and with approval of the Texas Department of Health.

(4) Harvest permits will be issued upon monthly verification and approval of lease markers by the department.

(5) A valid harvest permit must be on the vessel during any harvesting activities.

(c) Harvest of oysters from a private lease is subject to conditions as provided in the department issued permit.

(d) Reporting Requirement. Monthly harvest report forms must be prepared by the permittee at the end of each month and supplied to the department.

(e) Harvest permits will not be issued to any leaseholder who has not paid any rental, transfer, sale, renewal or late penalty fees which are owed to the department.

§58.60. Transplant or Harvest Permit Cancellation.

(a) Violations of the transplanting or harvesting procedures include, but are not limited to, the following:

(1) harvesting oysters from areas or leases other than covered under permit;

(2) harvesting oysters from restricted or prohibited areas as designated by the Texas Department of Health;

(3) transplanting oysters from unauthorized areas or to unauthorized leases;

(4) transplanting oysters without a valid transplanting permit;

(5) harvesting oysters without a valid harvesting permit;

(6) transplanting on or harvesting oysters from a lease which is not properly marked;

(7) failure to adhere to any conditions of the permit;

(8) failure to amend a transplant or harvest permit to include additions or deletions of boats; or

(9) failure to submit weekly transplant reports or monthly harvest reports.

(b) Violations of paragraphs (1) and (2) of subsection (a) of this section, shall result in a one year cancellation and withholding of all permits for the affected leases.

(c) Violations of paragraphs (3), (4), and (5) of subsection (a) of this section, shall result in a 45-day cancellation and withholding of all permits for the affected leases beginning on the next approved harvest or transplant day.

(d) Violations of paragraphs (6), (7), (8), and (9) of subsection (a) of this section, or the other provisions in the permits, shall result in a 5-day cancellation and withholding of all permits for the affected leases beginning on the next approved harvest or transplant day. [of all permits for the affected leases for a period of five working days]

(e) In the event a transplant or harvest permit is canceled, the lease holder may appeal to the executive director within five days, stating, in writing, why the permit should be reinstated.


Committee Agenda Item No. 7
Presenter: Jerry Cooke

Regulations Committee
Equine Anemia Regulations
November 2001

I. DISCUSSION: Under the Texas Agriculture Code and regulations promulgated by the Texas Animal Health Commission, all equidae (horses, mules, asses, ponies, zebras and any other equine) entering the state or undergoing change of ownership within the state are required to test negative for Equine Infectious Anemia (EIA) unless they are to be quarantined, slaughtered, or used for research. In order to be consistent with current regulatory policies implemented by other units of state government regarding the control of equine disease transmission, as well as to minimize the possibility that equidae on department lands might contract EIA, staff proposes that the regulations located at Exhibit A be published in the Texas Register for public comment.

Attachments – 1

1. Exhibit A – Equine Anemia Regulations


Committee Agenda Item No. 7
Exhibit A

Equine Anemia Regulations
Proposal Preamble

1. Introduction.

The Texas Parks and Wildlife Department proposes an amendment to §59.132, concerning General Rules. The amendment would require persons bringing equines to a state park or allowing equines to enter a state park to have evidence that the animals have been tested negative for Infectious Equine Anemia (EIA). The amendment is necessary to ensure that equines entering state parks are free of a contagious equine disease that could be transmitted to other equines.

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 rules as proposed will be a reduced likelihood that equines might acquire EIA as a consequence of entering public lands.

(B) There will be no effect on small businesses or microbusinesses as a result of the rule as proposed. There will be a cost to persons required to comply with the rule as proposed, namely the cost of an EIA test, which is approximately $25 per animal.

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

(D) The department has determined that 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 Dennis Gissel, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4407 or 1-800-792-1112 extension 4407 (e-mail: dennis.gissell@tpwd.state.tx.us).

5. Statutory Authority.

The rules are proposed under Parks and Wildlife Code, §13.102, which authorizes the commission to adopt regulations governing the activities of park users.

The proposed rules affect Parks and Wildlife Code, Chapter 13.

59.132. General Rules.

(a) Upon finding a need for public safety or welfare, or preservation of park resources, the director may impose restriction on public activity and conduct and may limit the use of any area or facility in a state park or a portion thereof. It is an offense for a person to enter or remain in an area or participate in an activity so restricted by the director.

(b) An employee of the department, peace officers, and emergency personnel are exempt from this chapter when this chapter conflicts with the discharge of their official duties to the extent of that conflict.

(c) Any vehicle, boat, trailer, or other property found parked, stored, or left in a state park in violation of any law or rule may be removed and stored at the owner's expense.

(d) No person shall be authorized to enter a state park with an equine or equines, or cause the entry of an equine or equines to a state park, unless that person has in their immediate possession, for each equine in the person's custody or that the person allowed to enter the state park, a completed VS Form 10-11 (Texas Animal Health Commission) showing that the equine has tested negative to an official Equine Infectious Anemia test within the previous 12 months.

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

EQUINE ANEMIA REGULATIONS

PROPOSAL PREAMBLE

1. Introduction.

The Texas Parks and Wildlife Department proposes an amendment to §65.190, concerning Application, and §65.199, concerning General Rules of Conduct, which are part of the Public Lands Proclamation. The amendment to §65.190 would allow the amendment to §65.199 to have effect on certain federal properties. The amendment to §65.199 would require persons bringing equines to public hunting lands or allowing equines to enter public hunting lands to have evidence that the animals have been tested negative for Infectious Equine Anemia (EIA). The amendments are necessary to ensure that equines entering public hunting lands are free of a contagious equine disease that could be transmitted to other equines.

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 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 rules as proposed are in effect:

(A) The public benefit anticipated as a result of enforcing or administering the rules as proposed will be a reduced likelihood that equines might acquire EIA as a consequence of entering public lands.

(B) There will be no effect on small businesses or microbusinesses as a result of the rules as proposed. There will be a cost to persons required to comply with the rule as proposed, namely the cost of an EIA test, which is approximately $25 per animal.

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

(D) The department has determined that 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 Dennis Gissell, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4407 or 1-800-792-1112 extension 4407 (e-mail: dennis.gissell@tpwd.state.tx.us).

5. Statutory Authority.

The rules are proposed under Parks and Wildlife Code, §81.405, which authorizes the commission to adopt regulations governing recreational activities on wildlife management areas.

The proposed rule affects Parks and Wildlife Code, Chapter 81.

§65.190. Application.

(a) This subchapter applies to all activities subject to department regulation on lands designated by the department as public hunting lands, regardless of the presence or absence of boundary markers. Public hunting lands are acquired by lease or license, management agreements, trade, gift, and purchase. Records of such acquisition are on file at the Department's central repository.

(b) On U.S. Forest Service Lands designated as public hunting lands (Alabama Creek, Bannister, Caddo, Lake McClellan Recreation Area, Moore Plantation, and Sam Houston National Forest WMAs) or any portion of Units 902 and 903, persons other than hunters are exempt from the provisions of this subchapter, except for the provisions of §65.199(14) of this title (relating to General Rules of Conduct).

(c) On U.S. Army Corps of Engineer Lands designated as public hunting lands (Aquilla, Cooper, Dam B, Granger, Pat Mayse, Ray Roberts, Somerville, and White Oak Creek WMAs), persons other than hunters and equestrian users are exempt from requirements for an access permit.

(d) On state park lands designated as public hunting lands, access for fishing and non-consumptive use is governed by state park regulations.

(e) Public hunting lands include, but are not limited to, the following:

(1) Alabama Creek WMA (Unit 904);

(2) Alazan Bayou WMA (Unit 747);

(3) Aquilla WMA (Unit 748);

(4) Atkinson Island WMA;

(5) Bannister WMA (Unit 903);

(6) Big Lake Bottom WMA (Unit 733);

(7) Black Gap WMA (Unit 701);

(8) Caddo Lake State Park and WMA (Unit 730);

(9) Caddo National Grasslands WMA (Unit 901);

(10) Candy Abshier WMA;

(11) Cedar Creek Islands WMA (includes Big Island, Bird Island, and Telfair Island Units);

(12) Chaparral WMA (Unit 700);

(13) Cooper WMA (Unit 731);

(14) D.R. Wintermann WMA;

(15) Dam B WMA—includes Angelina-Neches Scientific Area (Unit 707);

(16) Designated Units of the Las Palomas WMA;

(17) Designated Units of Public Hunting Lands Under Short-Term Lease;

(18) Designated Units of the Playa Lakes WMA;

(19) Designated Units of the State Park System;

(20) Elephant Mountain WMA (Unit 725);

(21) Gene Howe WMA (Unit 755)—includes Pat Murphy Unit (Unit 706);

(22) Granger WMA (Unit 709);

(23) Guadalupe Delta WMA (Unit 729)—includes Mission Lake Unit (720), Guadalupe River Unit (723), Hynes Bay Unit (724), and San Antonio River Unit (760);

(24) Gus Engeling WMA (Unit 754);

(25) James Daughtrey WMA (Unit 713);

(26) J.D. Murphree WMA (Unit 783);

(27) Keechi Creek WMA (Unit 726);

(28) Kerr WMA (Unit 756);

(29) Lake McClellan Recreation Area;

(30) Lower Neches WMA (Unit 728)—includes Old River Unit and Nelda Stark Unit;

(31) Mad Island WMA (Unit 729);

(32) Mason Mountain WMA;

(33) Matador WMA (Unit 702);

(34) Matagorda Island State Park and WMA (Unit 1134);

(35) M.O. Neasloney WMA;

(36) Moore Plantation WMA (Unit 902);

(37) Nannie Stringfellow WMA;

(38) North Toledo Bend WMA (Unit 615);

(39) Old Sabine Bottom WMA (Unit 732);

(40) Old Tunnel WMA;

(41) Pat Mayse WMA (Unit 705);

(42) Peach Point WMA (Unit 721)—includes Bryan Beach Unit (Unit 1075);

(43) Ray Roberts WMA (Unit 501);

(44) Redhead Pond WMA;

(45) Richland Creek WMA (Unit 703);

(46) Sam Houston National Forest WMA (Unit 905);

(47) Sierra Diablo WMA (Unit 767);

(48) Somerville WMA (Unit 711);

(49) Tawakoni WMA (Unit 708);

(50) Walter Buck WMA (Unit 757);

(51) Welder Flats WMA;

(52) White Oak Creek WMA (Unit 727); and

(53) Other numbered units of public hunting lands.

§65.199. General Rules of Conduct. This section applies to all public hunting lands unless an exception for a specific area and time period is designated by the executive director or by written permission of the department. It is unlawful for any person to:

(1) fail to obey regulations posted at the area or policies established by order of the executive director, fail to comply with instructions on permits or area leaflets, or refuse to follow directives given by departmental personnel in the discharge of official duties;

(2) possess a firearm, archery equipment, or any other device for taking wildlife resources on public hunting lands, except for persons authorized by the department to hunt or conduct research on the area, commissioned law enforcement officers, and department employees in performance of their duties;

(3) camp or construct an open fire anywhere other than in a designated campsite. On the Alabama Creek, Bannister, Caddo, Moore Plantation, and Sam Houston National Forest WMAs, this restriction applies only during the period from the day prior to the opening of the archery deer season through the day following the close of the general deer season;

(4) cause, create, or contribute to excessive or disturbing sounds beyond the person's immediate campsite between the hours of 10 p.m. and 6 a.m.;

(5) to establish a camp and leave it unattended for a period of longer than 24 hours;

(6) disturb or remove plants, wood, rocks, gravel, sand, soil, shell, artifacts, or other objects from public hunting lands, except as authorized by the department;

(7) write on, scratch, or otherwise deface natural features, signs, buildings, or other structures;

(8) fail to deposit refuse in designated containers or fail to remove it from the area;

(9) consume or be under the influence of alcohol while engaged in hunting activities, or to publicly consume or display an alcoholic beverage while on public hunting lands;

(10) possess dogs in camp that are not confined or leashed;

(11) use or possess any type of riding stock or pack animal on public hunting lands at any time, except:

(A) as may be provided by order of the executive director;

(B) by written authorization of the department; or

(C) when authorized for specific areas and time periods scheduled under the Texas Conservation Passport Program;

(12) use an airboat within the boundaries of public hunting lands, except as designated for specific areas and time periods by order of the executive director or by written permission of the department; [or]

(13) take an antlerless deer during the general open season on wildlife management areas jointly managed by TPW and the U.S. Forest Service (Alabama Creek, Bannister, Caddo, Moore Plantation, or Sam Houston National Forest) unless that person possesses on their person a TPW-issued WMA Antlerless Permit; or

(14) enter a unit of public hunting lands with an equine or equines, or cause the entry of an equine or equines to a unit of public hunting lands, unless that person has in their immediate possession, for each equine in the person's custody or that the person allowed to enter the unit of public hunting lands, a completed VS Form 10-11 (Texas Animal Health Commission) showing that the equine has tested negative to an official Equine Infectious Anemia test within the previous 12 months.

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. 8
Presenter: Jerry Cooke

Regulations Committee
Texas Cervid Disease Issues
November 2001

I. DISCUSSION: A very brief history of Chronic Washing Disease (CWD), Tuberculosis (TB), etc. in the U.S. will be presented, along with the primary vehicles of expansion of them, and the actions being taken by other states and other Texas agencies will be discussed. The high visibility of CWD, TB, etc. in the news media has led to an increasing public awareness of their potential threat to the wild deer resources in Texas. While these types of diseases are primarily discussed in the context of wildlife, the potential impact of CWD, TB etc. on the domestic livestock industry in Texas is enormous.


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