Regulations Committee

Wednesday, 9:00 a.m., May 28, 2003

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. Fish Guide Regulation
Staff: Paul Hammerschmidt
7
3. Mule Deer – MLDP
Staff: Scott Boruff, Clay Brewer
8
4. Oyster Dredge Regulations
Staff: Clayton Wolf
Committee Only
5. History of Grass Carp in Texas
Staff: Phil Durocher
Committee Only
6. Surplus Deer
Staff: Scott Boruff
Committee Only
7. Statewide Fur-Bearing Animal Proclamation
Staff: Scott Boruff, Doug Humphreys
Committee Only
8. Other Business  

Summary of Minutes
Texas Parks and Wildlife Commission
Regulations Committee
April 2, 2003

BE IT REMEMBERED that heretofore on the 2nd day of April 2003, 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 Department Headquarters complex, Austin, Travis County, Texas at 9:02 a.m., to wit:

I. REGULATIONS COMMITTEE:
Joseph Fitzsimons, Committee Chair
Katharine Armstrong, Chairman
Ernest Angelo, Jr.
Al Henry
Phil Montgomery
John Avila, Jr.
Donato D. Ramos
Kelly M. Rising, M.D.
Mark E. Watson, Jr.

II. APPROVAL OF MINUTES:
Motion: Commissioner
Second: Commissioner
Motion carries.

III. THE FOLLOWING ITEMS WERE PRESENTED TO THE COMMITTEE:
1. CHAIRMAN’S CHARGES

The chair recognized Executive Director Robert L. Cook. Mr. Cook reported that the department had accomplished each of the chairman’s charges for the current biennium.

Next Mr. Cook provided an update on the department’s crab trap clean-up day, reporting that staff and volunteers had retrieved almost 4,000 abandoned crab traps from coastal waters.

Deputy Executive Director Scott Boruff then apprised the committee of the status of the department’s Chronic Wasting Disease management plan. Mr. Boruff noted that the effort was broad-based, involving large and small landowners, conservationists, and other state agencies. He provided current data on the areas of the country where CWD had been detected, noted that over 2,000 deer had been tested in Texas without a positive result, and offered a detailed breakdown of the geographical particulars of the testing effort in Texas. Mr. Boruff also mentioned that the United States Department of Agriculture had indicated that the Texas effort was a model system for dealing with CWD in the future. Mr. Boruff then introduced Dr. Ken Waldrup of the Texas Animal Health Commission, who provided expert interpretation of the epidemiological significance of the testing statistics. Chairman Armstrong asked about possible strategies for greater involvement by private landowners. Mr. Boruff replied that the hope was that as time went by, more landowners would choose to get involved. Mr. Cook then asked about the rate of prevalence in other states and Dr. Waldrup provided a detailed summary. Commissioner Angelo asked if the increasing detection of CWD in other states indicated that it had been around a long time and was only just now being detected. Dr. Waldrup stated that it was too soon to draw any conclusions, owing to the relatively short time span that officials had been actively looking for CWD. Commissioner Fitzsimons asked if the testing samples could be stratified in terms of captive versus free-ranging animals. Dr. Waldrup responded that due to confidentiality protection, the Texas Veterinary Medical Diagnostic Lab did not release data from which such statistics could be derived. Dr. Waldrup then provided a detailed analysis of the particulars of testing protocols in captive herds. Commissioner Ramos asked if it would be possible to establish CWD-free status for deer herds, as is done for brucellosis in cattle herds. Dr. Waldrup replied that it would only be possible for captive herds. Commissioner Ramos then asked how testing would be done after deer season was over. Dr. Waldrup responded that testing would continue throughout the year, primarily on incidental mortalities, herds being tested as part of the application process for certain permits, and on animals showing clinical signs of infection. Commissioner Rising asked about the significance of low sampling rates in New Mexico. Director Cook responded that mule deer densities were quite low in most parts of the state that bordered New Mexico. Commissioner Watson asked why, if there was a state-offered certification for tuberculosis-free herds of exotic ungulates, there couldn’t be the same certification for captive herds of native ungulates. Dr. Waldrup replied that CWD simply isn’t well enough understood at this point in time, for instance, in terms of incubation times and transmission rates. Chairman Armstrong asked about the status of the development of a live-test for CWD. Dr. Waldrup stated that a live-test had been developed for mule deer, and that a live-test for white tails was still being developed but was at least two years away from being certified as efficacious.

Director Cook then introduced Mr. Clay Brewer, program leader for mule deer, bighorn sheep, and pronghorn antelope. Mr. Brewer provided a status report on potential changes to the Managed Lands Deer program involving mule deer. He stated that several landowners in the Trans-Pecos region had requested that the department look into the possibility, and sketched a timeline of department efforts to work with landowners in the region to develop an acceptable program. He then reviewed the MLD program as it currently affected white-tailed deer, and pointed out the similarities and differences with respect to expanding the program to include mule deer. Commissioner Angelo asked about the nature of opposition to the proposed expansion of the program. Mr. Brewer responded that primarily there was concern about the fragility of the population and the advisability of allowing hunting during the rut. A general discussion then ensued, with Mr. Brewer pointing out that all harvest would be controlled by the required wildlife management plan, but that there would be a question about a finite harvest quota with respect to age structure in the buck segment, although in any event the quota itself would be quite conservative.

Mr. Boruff then addressed the department’s efforts with respect to the issue of surplus deer. He began by providing background information on various department initiatives to ameliorate problems caused by burgeoning deer populations in certain parts of the state, including efforts to remove deer and provide the meat to charitable organizations, the control permit program, and various transplantation options. He then reviewed the positives and negatives associated with each. Commissioner Angelo inquired about a legislative initiative that would allow communities to trap and transplant deer without regard to department disease-testing regulations. Mr. Boruff responded that he had testified at legislative hearings and communicated the department’s concern that the bill would dilute the commission’s regulatory authority and perhaps pose resource problems if all communities were granted such authority. Commissioner Angelo and Mr. Boruff then discussed some of the issues relating to local sentiment with respect to deer removal, as well as the department’s efforts to find solutions. Mr. Boruff pointed to department efforts to use surplus deer to feed prison inmates. Commissioner Ramos asked how the pending legislation would affect the department’s efforts to manage deer populations with regard to disease. Mr. Boruff responded that the bill did not address those issues. Chairman Armstrong commented that the bill reflected the communities’ exasperation at the deer problem. Commissioner Fitzsimons seconded Commissioner Angelo’s observation that many communities had been reluctant to employ lethal solutions to deer population problems. A general discussion then took place on the economics of various methods of removing deer.

2. Statewide Hunting and Fishing Proclamation
The Chair recognized Mr. Ron George, deputy director of the Wildlife Division. Mr. George presented the various rule proposals sponsored by the Wildlife Division, including changes affecting resource possession documentation, the content of wildlife management plans, deadlines for applications for Antlerless and Spike-buck Control permits, deer bag limits in Harris County, the implementation of a muzzleloader season in certain East Texas counties, permanent marking of bighorn sheep skulls, lengthening of pheasant season in the Panhandle, elimination of pheasant season in four mid-coast counties, closure of the prairie chicken season, and the addition of Mearns’ quail to the aggregate bag limit for quail. As he reviewed the proposals, Mr. George provided a summary of public comment for each. He also noted that staff recommended withdrawing the quail proposal, based on limited biological data and strong public opposition. Commissioner Fitzsimons asked about land-use differences in the two regions of the state where the prairie chicken season would be closed. Mr. George responded with the requested information. Commissioner Angelo asked what was driving the changes to the population and what kinds of department efforts could assist landowners interested in managing habitat for prairie chicken. Mr. George described the history of land use, the economic realities associated with each, and the department’s ongoing efforts to assist landowners. Commissioner Fitzsimons asked about perhaps implementing some type of permit program that would offer incentives for habitat management. Mr. George replied that in that part of the state, landowners derived little income from the leasing hunting opportunity in comparison to agricultural activities. Commissioner Angelo stated that his thinking on the proposed closure had changed, from being in favor to concern that closure wasn’t the solution. Director Cook stated that the issue wasn’t the impact of hunting. A general discussion on different ways to provide incentives for habitat management then followed, with Commissioners Fitzsimons and Montgomery expressing doubts about the efficacy of closing the season. Commissioner Angelo enquired about the negative public comment concerning the proposed lengthening of the pheasant season. Mr. George responded that generally, landowners opposed the proposal but hunters supported it, and noted the basis for each position. Commissioner Ramos asked about the biological impact of lengthening the season. Mr. George stated that there was none. Commissioner Fitzsimons asked if there would be any biological drawback to leaving the bag at three cocks. Mr. George stated that the proposal had come about as a petition that requested a longer season with a reduced bag limit, but that no, leaving the bag at three wouldn’t have an impact. Commissioner Ramos asked if the longer season would generate an economic benefit. Mr. George responded that generally, increased opportunity created the possibility of increased revenues for landowners, outfitters, and guides.

The Chair recognized Mr. Hal Osburn, director of the Coastal Fisheries Division. Mr. Osburn noted that the central issue concerning his division was the spotted sea trout fishery. He provided historic biological and economic data concerning commercial and recreational use of the fishery, and noted previous legislative and regulatory actions that had influenced the resource, as well as ongoing monitoring efforts and the probable biological results if the proposal were to be adopted. With respect to the current proposals, Mr. Osburn provided a detailed description of the agency’s outreach and public information efforts, and the results of public comment. Commissioner Montgomery asked about the proposed boat limit and its effect on license allocation. Mr. Osburn replied that anyone would be able to obtain a guide license, and that the proposed rule would not affect the number of boats that could be employed on guided trips, just the number of fish that could be taken per boat. Commissioner Henry asked about how the staff’s recommendation compared to the recommendation of the Sea Trout Working Group. Mr. Osburn replied that a majority of the working group wanted to be more restrictive than did staff. Commissioner Henry asked if guides had been represented in the working group, and Mr. Osburn replied that indeed they had. Commissioner Henry then asked Mr. Osburn to respond to concerns raised by persons opposing the proposal. Mr. Osburn responded that the two main organizations that represented guides fully supported the proposals and that every licensed guide in the state had been surveyed and the results showed that more than 60% of the respondents supported the proposal. Mr. Osburn then suggested that perhaps although those in opposition were small in number, they were very vocal in stating their opposition. Commissioner Ramos and Mr. Osburn then discussed the issue of the use of live croaker for bait and its impact upon angler success. Mr. Osburn noted that legislation had been filed to impose size limits on live croaker used as bait. Commissioner Henry and Mr. Osburn then discussed the particulars of perception and reality with respect to croaker use in various areas of the coast. Commissioner Fitzsimons then asked about the benefits and drawbacks to managing sea trout on a bay-by-bay basis. Mr. Osburn replied that he felt that it could be done, although there would be some minor problems to work out, but that first and foremost it would have to occur with local support.

The Chair then recognized Mr. Ken Kurzawski, with the Inland Fisheries Division. Mr. Kurzawski reviewed the proposals affecting freshwater fisheries, including changes to statewide white bass regulations, largemouth bass regulations on two reservoirs, and boundary definitions for Toledo Bend Reservoir. Mr. Kurzawski also provided a summary of public comment for each of the proposals. Commissioner Angelo asked about the response of freshwater guides to the proposed guide fee increase. Mr. Kurzawski responded that generally, full-time guides supported the proposal, while part-time guides opposed it. Mr. Phil Durocher, director of the Inland Fisheries Division, stated that there was a perception that the proposed guide regulations were intended to deal with issues on the coast and that freshwater guides were being dragged into the issue. He further stated that freshwater guides and saltwater guides could be treated separately, in terms of regulations. Mr. Durocher also noted that freshwater guides were not concerned about boat limits. Commissioner Fitzsimons enquired as to the last time the commission had increased the guide fees, and Mr. Durocher supplied the requested information. Commissioner Angelo asked Mr. Durocher about imposing fees on fishing tournaments. Mr. Durocher responded that the department lacked solid data on the number of tournaments and their biological impacts. Commissioner Ramos asked how other states regulated fishing tournaments. Mr. Durocher replied that approximately 15 states had some sort of tournament permit. Commissioner Fitzsimons asked if those states gathered data on tournaments. Mr. Kurzawski stated that data gathering in those states was for the most part a result of voluntary reporting. Commissioner Fitzsimons expressed his concern that, given the significant number of tournaments, the department had no firm grasp of the biological impacts. Commissioner Henry requested that staff conduct research on other states’ approaches to tournament fishing. Commissioner Ramos stated that he felt it would be a good idea to include the issue as part of the Chairman’s Charges for the next year.

3. Candidate State Parks For Public Hunting and Establishment of an Open Season on Public Hunting Lands.
The Chair recognized Ms. Vickie Fite, public hunting coordinator. Ms. Fite addressed staff proposals for state park hunts in 2003-2004 and reviewed public comments in response to the proposals. Commissioner Fitzsimons asked if there was anything that would prevent the addition of components of the U.S. Fish and Wildlife refuge system to the public dove lease program. Ms. Fite responded that she was not aware of any impediments to such additions. Commissioner Avila asked if deer were hunted under the public hunting program on national refuges. Ms. Fite replied that for the most part, public hunting on the refuge system was handled by the federal government. Commissioner Ramos stated his concern that the department continue to aggressively implement youth hunting opportunity. He asked if the public hunting program prioritized youth hunting over adult hunting. Ms. Fite responded that the department sponsored hunts specifically for youth, and that youth could also hunt during the general season.

4. Scientific Breeder Proclamation.
T he Chair recognized Clayton Wolf, white-tailed deer program leader. Mr. Wolf began by providing historical background on recent Commission actions involving the Scientific Breeder Proclamation, and then outlined proposed regulations to eliminate the required fawn report, require additions to or enlargements of holding pens to be reflected on a diagram filed with department, and conditions for the release of deer to the wild. Mr. Wolf also reported on the public comment received at various public meetings sponsored by the department. Commissioner Ramos asked if new diagrams would be required for the subdivision of existing pens. Mr. Wolf replied in the negative. Commissioner Fitzsimons asked if scientific breeders would be, in effect, on the honor system for releases. Mr. Wolf replied that the department’s recordkeeping and reporting measures were believed to be sufficient to prevent or detect illegal activities. Mr. David Sinclair, director of Wildlife Enforcement, stated that the procedure used to activate permits would place the permittee in the position of having to positively affirm that deer are or are not from an approved facility. Commissioner Ramos asked if deer meeting entry requirements had to stay within a facility for any period of time prior to release. Mr. Wolf replied that deer meeting entry requirements could be released at any time, since the entry requirement is a herd-status measure equivalent to herd-status certification in Texas.

5. Migratory Game Bird Proclamation.
The chair recognized Mr. Dave Morrison, waterfowl program leader. Mr. Morrison began by noting that there were relatively few changes proposed for migratory bird-hunting seasons this year, although he did provide the caveat that the federal frameworks could conceivably cause considerable changes in the department’s proposals. Mr. Morrison then reported that the current proposal would shift the opening date of teal season one week later, and that the duck and goose seasons and bag limits would remain essentially the same, albeit adjusted for calendar shift, the sole exception being the potential for a season-length reduction in the western goose zone as a result of federal actions. Mr. Morrison then spoke briefly on the effects of the conservation order on light geese populations, stating that the situation on the breeding grounds appeared to be improving. He then outlined proposed falconry seasons. Commissioner Angelo and Mr. Morrison discussed the nuances of implementing the opening and closing dates of duck season based on the federal frameworks offering 9-day and 16-day teal seasons. Commissioner Fitzsimons asked if there had been much comment on the South Texas late season. Mr. Morrison replied that public sentiment seemed to be split, with some people preferring the earlier hunt and some people in favor of a later hunt. Commissioner Fitzsimons then asked about the dove call-count issue. Mr. Morrison stated that the U.S. Fish and Wildlife Service was looking into additional indices, such as survival rates and banding programs to generate more data.

6. Six-County Antler Restrictions Update.
The Chair recognized Mr. Bob Carroll, district leader with the Wildlife Division. Mr. Carroll began by describing an extensive survey effort to determine hunter and landowner satisfaction following the first season of experimental antler regulations in a six-county area. He also provided harvest and population data accumulated by check stations during the season, pointing out items of statistical significance with respect to the department’s predictions of the impact of the rules on age structure.

ADJOURNMENT: Commissioner Fitzsimons then adjourned the meeting.


Committee Agenda Item No. 1

Regulations Committee
Chairman's Charges
May 2003

(This item will be an oral presentation.)


Committee Agenda Item No. 2
Presenters: Paul Hammerschmidt

Regulations Committee
Proposed 2003-2004
Statewide Hunting and Fishing Proclamation
Fishing Guide License – Required Documentation
May 2003

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


Committee Agenda Item No. 3
Presenters: Scott Boruff, Clay Brewer

Regulations Committee
Mule Deer – MLDP
May 2003

(This is Public Hearing Agenda Item No. 8.)


Committee Agenda Item No. 4
Presenters: Larry Young, Robin Riechers

Regulations Committee
Proposed 2003-2004 Oyster Fishery Proclamation
Commercial Fishing – Multiple Dredges On Board
May 2003

I. Discussion: Responsibility for adopting rules covering the taking, attempting to take, possession, purchase, and sale of oyster resources in the salt waters of Texas is set forth in Parks and Wildlife Code, Chapter 76 Oysters. This item proposes amendments to 31 TAC Chapter 58, Subchapter A (Statewide Oyster Fishery), Section 58.22 (a) Gear Restrictions. Currently it is unlawful to use more than one dredge while taking or attempting to take oysters. It is unlawful to have on board any dredges other than the one connected to a winch, chain, or other lifting device, unless it is secured below deck or on the wheelhouse or to the deck in such a manner that it is not readily accessible for use. Difficulties of enforcing the current one dredge rule were discussed at a recent Oyster Advisory Committee Meeting. In order to maintain the flexibility of having a second dredge on board to replace a damaged or lost dredge, the advisory committee suggested language that would only allow the chain and lifting block, which is connected to the oyster dredge in use, to be out of storage. By eliminating the opportunity for the rigging of a second dredge to be in place and ready for use, it should provide a greater deterrent to the use of a second dredge and provide greater opportunity for law enforcement to enforce the current one dredge rule.

Attachment – 1

1. Exhibit A – Oyster Fishery Proclamation


Commission Agenda Item No. 4
Exhibit A

Statewide Oyster Fishery Proclamation

§58.22 Commercial Fishing

(a) Gear Restrictions. 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:

(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 the winch, chain, or other lifting device and in use, 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;

(4) have on board any wench chain(s), other than the one connected to the dredge in use, 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; or

(5) have on board any lifting block(s), other than the one connected to the dredge in use, 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.


Committee Agenda Item No. 5
Presenter: Phil Durocher

Regulations Committee
History of Grass Carp in Texas
May 2003

I. Discussion: Staff will brief the Commission on the history of Grass Carp in Texas. The briefing will include discussions on Grass Carp arrival in the U. S., the Lake Conroe controversy and the events that led to the current status and policy on the use of triploid Grass Carp in controlling and managing invasive plants in the State.


Commission Agenda Item No. 6
Presenter: Scott Boruff

Regulations Committee
Surplus Deer
May 2003

I. Discussion: Numerous suburban areas, primarily on the eastern edge of the Edwards Plateau, have overpopulations of white-tailed deer. Their situations typically are exacerbated by landscaping efforts, deer feeding by residents and the lack of predation and hunting to control the populations. In addition, some municipalities and ranches have identified that current regulatory programs authorized by TPWD do not meet their needs, or are too inefficient in their current form.

Staff has identified several options for the Commission’s consideration that would provide alternatives for landowners with surplus deer. Options were developed under the following criteria: (1) the option will not result in habitat degradation; (2) the option is enforceable; and (3) the option can be implemented by the Commission under current statutory authority.

Staff will present options for the management of surplus deer to the Commission and seek their guidance on implementation.


Committee Agenda Item No. 7
Presenters: Scott Boruff, Doug Humphreys

Regulations Committee
Statewide Fur-bearing Animal Proclamation
May 2003

I. Discussion: Under Parks and Wildlife Code, Chapter 71, the Commission may regulate the taking, possession, propagation, transportation, exportation, importation, sale, and offering for sale of fur-bearing animals, pelts, and carcasses as the Commission considers necessary to manage fur-bearing animals or to protect human health or property. Worldwide, several species of otter are listed by the Convention on International Trade in Endangered Species (CITES) as threatened with extinction. Though the only species of otter native to Texas (Lutra canadensis) is not listed, its similarities to listed species has necessitated a federal requirement that all otter pelts leaving Texas be tagged with a CITES tag to authenticate lawful take. In response, staff has crafted a proposal that would require all otters taken in the state (approximately 900 in 2002) to be tagged. Additionally, the proposal addresses housekeeping changes to streamline the regulatory structure of the proclamation to make it more user-friendly.

Attachments – 1

Exhibit A – Proposed Statewide Fur-bearing Animal Proclamation


Commission Agenda Item No. 7
Exhibit A

Statewide Fur-Bearing Animal Proclamation
Proposal Preamble

1. Introduction.

The Texas Parks and Wildlife Department proposes the repeal of §65.380, amendments to §§65.372, 65.374, 65.376 - 65.379, and new §§65.381, 65.383, and 65.385, concerning the Statewide Fur-bearing Animal Proclamation. The repeal of §65.380, concerning Penalty, would allow that section to be redesignated as new §65.385, and is necessary to create room within the existing numbered sections to accommodate new §65.381 and §65.383.

The amendment to §65.372, concerning Definitions: adds a definition of ‘consumer,’ adds clarifying language to the definition of ‘commercial harvest,’ adds clarifying language to the definition of ‘finished product,’ and creates a comprehensive definition of the term ‘fur-bearing animal.’ The amendment is necessary, respectively, to: create a definition of a class of persons who are end-users of fur-bearing animals and to whom no documentation or licensing requirements apply; to make clear that commercial harvest is that harvest which takes place during the commercial trapping season; to comport the regulatory definition of ‘finished product’ with the statutory definition of ‘pelt’; and to create a definition of ‘fur-bearing animal’ that allows the term to be used in an inclusive sense (i.e., applying to parts of fur-bearing animals, pelts, carcasses, etc. as well as to an entire animal) so as to obviate repetition of terms and the creation of tedious regulatory language.

The amendment to §65.374, concerning General Rules, would eliminate subsection (b), remove the reference to ‘civet cat’ in subsection (c), remove the word ‘undried’ from subsection (d), replace the word ‘pelts’ with the term ‘fur-bearing animal’ in subsection (e), prohibit the sale of fur-bearing animals by trappers during certain times of the year, and eliminate subsection (g). The amendment is necessary, respectively: to remove a redundant regulation, since the Parks and Wildlife Code provides that each bird, animal, or fish taken in violation of the code is a separate offense; to eliminate the term ‘civet cat,’ which is another term for the spotted skunk, from a rule that prohibits the possession of skunks generally; to correct a conflict caused by the term ‘undried pelt,’ which is problematic because the statutory definition of ‘pelt’ in Parks and Wildlife Code, Chapter 71, includes green and dried skins; to replace the term ‘pelt’ with the inclusive term ‘fur-bearing animal’; to prevent the take of fur-bearing animals during times of the year when their fur is not prime (and thus not as saleable) or when to do so would interfere with the bearing and weaning of young (thus affecting future supply) by prohibiting the sale of fur-bearing animals by trappers; and to remove a regulation that will expire on its own terms on September 1, 2004.

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

The amendment to §65.377, concerning Sale or Purchase of Fur-bearing Animals, restructures the section and adds language to increase clarity. The amendment is necessary because although the current content of the section is accurate, it relies on deduction for the sake of brevity. Accordingly, the new structure and additional clarifying language will plainly state the various privileges afforded by each license type.

The amendment to §65.378, concerning Importation and Release, would eliminate a reference to release. The amendment is necessary because this rulemaking creates a new §65.381 to deal specifically with nuisance fur-bearing animals.

The amendment to §65.379, concerning Reporting Requirements, would require permittees to maintain records for a period of two years following the period of validity of a permit and to make the records available to department employees acting within the scope of official duties. The amendment is necessary to make the provisions of the subchapter consistent with recordkeeping requirements of other subchapters, and to ensure that factual documentation of all activities is available to the department during the time period that the statute of limitations is in effect for offenses under the subchapter.

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

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

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

2. Fiscal Note.

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

3. Public Benefit/Cost Note.

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

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

(B) 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.

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

4. Request for Public Comment.

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

5. Statutory Authority.

The repeal, amendments, and new sections are proposed under Parks and Wildlife Code, Chapter 71, which authorizes the commission to regulate the taking, possession, propagation, transportation, exportation, importation, sale, and offering for sale of fur-bearing animals, pelts, and carcasses as the commission considers necessary to manage fur-bearing animals or to protect human health or property, and to provide for permit application forms, fees, procedures, and reports

The repeal affects Parks and Wildlife Code, Chapter 71.

§65.380. Penalty.

The repeal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.

Issued in Austin, Texas, on

The amendments and new sections are proposed under Parks and Wildlife Code, Chapter 71, which authorizes the commission to regulate the taking, possession, propagation, transportation, exportation, importation, sale, and offering for sale of fur-bearing animals, pelts, and carcasses as the commission considers necessary to manage fur-bearing animals or to protect human health or property, and to provide for permit application forms, fees, procedures, and reports

The amendments and new section affect Parks and Wildlife Code, Chapter 71.

§65.372. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. All other words and terms shall have the meanings assigned in Subchapter A of this chapter (relating to Statewide Hunting and Fishing Proclamation) or Parks and Wildlife Code, Chapter 71.

(1) Consumer - A person who purchases fur-bearing animals or products made from fur-bearing animals for personal use or consumption and who does not sell, resell, trade, or barter the fur-bearing animals or products made from fur-bearing animals in exchange for anything of value.

(2) Commercial harvest—The take of a fur-bearing animal under a trapping license during the season for commercial harvest established in §65.375 of this title (relating to Open Seasons; Means and Methods).

(3)[(2)] Finished product—The tanned pelt of a fur-bearing animal or any part [item manufactured from the pelt] of a fur-bearing animal (or its resulting products) that has been treated to prevent decomposition and/or packaged for sale. A dried pelt is not a finished product.

(4) Fur-bearing animal – The animals listed in Parks and Wildlife Code, §71.001, living or dead, including their parts, carcasses, and pelts. (5)[(3)] Nuisance fur-bearing animal—A fur-bearing animal that is depredating or a threat to human health or safety.

(6)[(4)] Recreational harvest—The take of a fur-bearing animal under a hunting license at any time, or under a trapper's license outside of the season for commercial harvest.

§65.374. General Rules.

(a) No person may take fur-bearing animals on public roads and highways or their rights-of-way.

(b) [Each fur-bearing animal or pelt taken or possessed in violation of this subchapter shall constitute a separate offense.]

[(c)] No person may possess a live skunk [or civet cat] without a letter of authorization from the wildlife division.

(c)[(d)] No retail fur buyer may possess [undried] pelts during the period May 1 through October 31.

(d)[(e)] No wholesale fur dealer or retail fur buyer may purchase a fur-bearing animal [pelts] from a trapper from April 6 through October 31.

(e)[(f)] No trapper may sell a fur-bearing animal from April 6 through October 31. [Nuisance fur-bearing animals may be taken in any number by any means at any time.]

(f) No person shall possess, buy, sell, trade, or export the pelt of an otter unless the pelt has been tagged with a department-issued CITES (Convention on the International Trade in Endangered Species) tag. All otter pelts imported into this state must be accompanied by evidence of lawful take or possession.

[(g) There is no open season on furbearing animals in any state-owned riverbed in Dimmit, Uvalde, and Zavala counties. The provisions of this subsection cease effect on September 1, 2003.]

§65.376. Possession of Live Fur-bearing Animals.

(a) No person other than the holder of a fur-bearing animal propagation license may possess a live fur-bearing animal at any time, except as otherwise provided in this chapter.

(b) A propagation license may be issued following an initial facility inspection by the department. Additional inspections may be made at department discretion. [For persons not engaged in selling or trading fur-bearing animals, there is no initial facility inspection; however, inspections may be performed at the discretion of the department.]

(c) The holder of a fur-bearing animal propagation license shall provide the following for each animal in possession:

(1) a sufficient supply of fresh water at all times;

(2) shelter from heat and inclement weather; and

(3) an enclosure of at least 20 inches in height and eight square feet in area. Enclosures shall be cleaned daily.

(d) Offspring of fur-bearing animals held under a propagation permit may be kept with their parents or siblings for up to 120 days from birth in an enclosure meeting the height and area requirements for a single animal.

(e) [Nothing in this subchapter shall prohibit a taxidermist from possessing for taxidermy purposes a fur-bearing animal or the pelt of a fur-bearing animal lawfully taken or possessed under this subchapter, provided the animal or pelt is accompanied by a wildlife resource document as prescribed by Subchapter A of this chapter (relating to Statewide Hunting and Fishing Proclamation).]

[(f)] Live fur-bearing animals may be taken and possessed for three days or less for instructional or demonstration purposes pursuant to a letter of authorization from the wildlife division.

(g) No person shall take a fur-bearing animal from the wild under a propagation permit except during the season provided for commercial harvest in §65.375(b) of this title (relating to Open Seasons; Means and Methods).

§65.377. Sale or Purchase of Fur-bearing Animals [or Their Pelts].

(a) Sale.

(1) No person other than licensed trappers, retail fur buyers, wholesale fur dealers, or fur-bearing animal propagators may sell fur-bearing animals [or the pelts of fur-bearing animals, and no person other than licensed retail fur buyers, wholesale fur dealers or fur-bearing animal propagators may purchase fur-bearing animals or their pelts].

(2)[(b)] Live fur-bearing animals may be sold only:

(A)[(1)] by persons who hold a valid fur-bearing animal propagation license; or

(B)[(2)] to persons authorized by permits issued under Parks and Wildlife Code, Chapter 43, Subchapter C, or another licensed fur-bearing animal propagator.

(b) Purchase. Except as provided in this subchapter:

(1) no person other than licensed retail fur buyers, wholesale fur dealers or fur-bearing animal propagators may purchase fur-bearing animals; and

(2) a consumer may purchase pelts or carcasses only from a retail or wholesale dealer, but is not required to possess a license or to maintain documentation.

(c) Finished products. Finished products may be bought, sold, and possessed by anyone.

(d) Live animals. No person shall sell or export live fur-bearing animals outside this state without possessing a letter of authorization from the wildlife division. A request for authorization shall include written documentation verifying that the recipient of the live animals is in compliance with applicable regulations in the destination state. A copy of the completed authorization shall accompany the animals at all times during shipment or be attached to the shipping container used to export the animals.

§65.378. Importation and Release of Fur-bearing Animals [or Their Pelts].

(a) No person may import live fur-bearing animals into this state from another state or country unless:

(1) a permit has been issued by the department for such importation and a copy of the completed permit accompanies any live fur-bearing animal being imported or is attached to any container used to import live fur-bearing animals;

(2) the imported animals are accompanied by a health certificate signed by a veterinarian accredited in the state of origin; and

(3) if the imported animals are foxes, raccoons, or skunks, a signed letter of authorization issued by the Texas Department of Health.

(b) Imported live fur-bearing animals and[,] live fur-bearing animals previously held in captivity[, and fur-bearing animals live-trapped as nuisances] may not be released into the wild without a letter of authorization from the wildlife division and the owner of the property where the release occurs. Animals released under provision of this subsection must be accounted for in a report filed with the department on or before the tenth day of the month following the month of release. The report shall list the species, number captured and released, date and location of capture, date and location of release, and name and address of person authorized to release.

§79.379. Reporting Requirements.

(a) Any person licensed as a retail fur buyer or wholesale fur dealer must complete and file an appropriate annual report with the department by May 31 of each year.

(b) Any person licensed as a fur-bearing animal propagator must complete and file an appropriate annual report with the department by August 31 of each year.

(c) The department reserves the right to refuse permit issuance to any person not in compliance with this section.

(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 two years following the period of validity of the permit under which they are required to be kept.

§65.381. Nuisance Fur-bearing Animals.

(a) Nuisance fur-bearing animals may be taken in any number by any means at any time.

(b) The provisions of 25 TAC Chapter 169, Subchapter A (relating to Rabies Control and Eradication) apply as necessary to fur-bearing animals.

(c) the provisions of §65.378(b) also apply to persons in possession of nuisance fur-bearing animals.

§65.383. Taxidermy. Nothing in this subchapter shall prohibit a taxidermist from possessing for taxidermy purposes a fur-bearing animal [or the pelt of a fur-bearing animal] lawfully taken or possessed under this subchapter, provided the animal [or pelt] is accompanied by a wildlife resource document as prescribed by Subchapter A of this chapter (relating to Statewide Hunting and Fishing Proclamation), or, if the fur-bearing animal was taken outside of Texas, evidence of legal take, purchase, or possession from the state or country where the fur-bearing animal was taken.

§65.385. Penalty. The penalties for a violation of this subchapter are prescribed by Texas Parks and Wildlife Code, Chapter 71.


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