Texas Parks and Wildlife Commission
Regulations Committee

August 27, 2003

Commission Hearing Room
Texas Parks & Wildlife Department Headquarters Complex
4200 Smith School Road
Austin, TX 78744

BE IT REMEMBERED, that heretofore on the 27th day of August, 2003, there came on 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, beginning at 10:25 a.m. to wit:

APPEARANCES:

THE TEXAS PARKS AND WILDLIFE COMMISSION:

REGULATIONS COMMITTEE:

THE TEXAS PARKS AND WILDLIFE DEPARTMENT:

Robert L. Cook, Executive Director, and other personnel of the Texas Parks and Wildlife Department


COMMISSIONER FITZSIMONS: The Regulations Committee will come to order at 10:25. The order of business, Approval of the Committee Minutes.

COMMISSIONER WATSON: Move.

COMMISSIONER RISING: Seconded.

COMMISSIONER FITZSIMONS: All in favor, aye.

(A chorus of ayes.)

COMMISSIONER FITZSIMONS: Opposed, say aye.

(No response.)

COMMISSIONER FITZSIMONS: Approval of the minutes. Moving on, Chairman's Charges.

Mr. Cook.

MR. COOK: Mr. Chairman, thank you, sir. I've got several items I want to touch with you on. I want to start this one out because — from — talking about some of our folks here, because it may already import, particularly to this committee. And I want to — I know you're aware of it.

But I want to particularly note that Mike Berger has been selected and is currently serving. Mike,

in case you have not met nor know Mike, Mike, stand up there and signal so, that as our Wildlife Division Director, we're very appreciative of Mike and his efforts, and looking forward to working with him.

In addition, a personnel action that's happening to us here that we all regret, is the announced retirement of Mr. Hal Osbourne. And that little rascal is moving to the mountains in New Mexico. So I wanted you all to be aware of that. That —

VICE-CHAIRMAN ANGELO: As far away from this area as he can get.

MR. COOK: He said he was going to handle all the shrimp issues they have up there. But we — you have worked with Hal, and we who have known Hal and worked with and appreciate him and his contributions that he's made at Parks and Wildlife, and you know, the retirement incentive was enough to get him over the edge.

We will miss Hal, and I just wanted to mention that to you. And so if you get a chance, you can speak to him.

Several items — and first of all, we'll talk about this late season migratory game bird proclamation and where we are there. In early August staff proposed a waterfowl season for public comment purposes that would have closed the duck season on January 18, 2004, in the north and south duck zones, and on April 21, 2004, in the High Plains Mallard Management Unit.

After significant public comment requesting extension of the season-closing date in each zone, staff revised the proposal to close on January 25 in both the north zone and the High Plains Mallard Management Unit.

Now, what that really means is that Vernon Bevill has less hide than he did have. But Vernon and his guys have worked with these folks and have agreed that that would — that proposal will work.

But we retained the January 18 closing date in the south zone. January harvest date for the south zone clearly shows that a later closure does not improve hunting opportunity.

Goose seasons have been adjusted to coordinate with duck season closures in the north and south zones so that we can shift the light goose conservation rules immediately after the other season closed, as we have done in recent years.

The federal regulation allows both a pintail and canvas-back season of 39 days. And we plan to allow those seasons to last 39 days of the regular duck season for each zone, even though we have had some comments asking for the seasons to be earlier.

Staff believes that the last 39 days offers the best opportunity for these species, when they are in full nuptial plumage.

Sandhill crane season in coastal zone C only has again been adjusted to coincide with the closing of regular waterfowl seasons. The revised proposals were recently reviewed with and supported by our Game Bird Advisory Board. The changes also reflected a majority of public comments we received which requested the later closing dates for ducks.

Prior to this year, the Commission has set the late season regulations for migratory game birds. However, in the event that the deadline from the U.S. Fish and Wildlife Services for submitting our selections does not correspond with the scheduled Commission meeting, the Commission, earlier this year delegated to me — to the executive director, authority to set the season by executive order.

Therefore, I wanted to take this opportunity to advise you of these final proposals and where we are, and of my intent to establish the 2003/2004 migratory game bird season as outlined in the report just passed out.

And if you have any questions or comments on those, I'd be glad to have them before we wrap up here. I also want to note that we have a correction that we need to make in our 2004 pheasant season. Prior to this year, the Panhandle pheasant season began the second Saturday in December and ran for 16 consecutive days.

In 2003, the Commission was petitioned to extend the season to 30 days, and reduce the daily bag from three birds to two. The Commission and the Statewide Hunting and Fishing Proclamation for the 2004 season authorized the season to begin the first Saturday in December, and run for 30 consecutive days.

However, we had a mistake in The Outdoor Annual, the little publication that goes out. And the other public information showed the season to be December 30 through January 11, for that 30 days, which would have been starting on the second Saturday instead of the first. We did some work with the folks in the Panhandle, made a lot of inquiries, talked to a lot of people, including contact with the original petitioners, some of the folks who have big opening events on that opening weekend. And it was determined that the common understanding was that the season begins on December 13, as published in The Outdoor Annual and elsewhere.

Therefore, we are recommending that we place a notice in the Texas Register to amend the proclamation to match the published date for the upcoming season. The Commission would adopt this change at its November meeting. We're staying with the 30 days. We're just making that — making our legal document agree with the published dates, which we believe is the cleanest way to do that.

On crab trap closure, Senate Bill 1410 from the 77th Legislature provided the Commission a new authority to establish a closed season for the use of crab traps in order to remove abandoned crab traps. Since that time two crab trap removal programs have been conducted, with almost 12,000 crab traps removed from Texas waters, using the services of almost 1,000 volunteers.

Staff is proposing a third closed season for the use of crab traps to be February 20 through February 29, 2004. Staff has requested that the executive director to authorize publication of proposed dates in the Texas Register for public comment, with possible adoption by the Commission at the November '03 Commission meeting.

COMMISSIONER FITZSIMONS: Bob, the —

MR. COOK: Yes, sir.

COMMISSIONER FITZSIMONS: — Waterfowl season proposal doesn't have any effect on the 16-day teal?

MR. COOK: No, sir. We're all — and you're — again, as you know, we go to the ground with the folks every year to get the maximum we can get, basically, and utilize every single day of it. Our staff has done a great job with that and have a great relationship with the federal people who — that they work with in this fly-way. That's it. Thank you, sir.

COMMISSIONER FITZSIMONS: Thank you, Bob.

Any questions for Bob?

(No response.)

COMMISSIONER FITZSIMONS: The next item on the agenda, the oyster dredge regulations, Larry Young, Robin Riechers.

MR. YOUNG: Mr. Chairman, Commissioners, I'm Larry Young, Chief of Fisheries Enforcement, Law Enforcement Division. I'll be presenting the recommended changes to the Statewide Oyster Proclamation.

The oyster industry in Texas is a very valuable fishery, with nearly $14 million landed in Texas as the most recent data shows in FY 2000. Staff works very closely with the Oyster Advisory Board to identify ways to best protect the harvest of wild oysters.

The oyster industry is opposed to the use of multi dredges for many reasons. However, this regulation in its current form is difficult to enforce. With that, the staff and the Oyster Advisory Board Committee recommend that we make it illegal to have on board more than one dredge, unless spare dredges are secured to or on the wheelhouse, or to the deck in such a manner it not be readily accessible for use.

Further, we recommend that it's illegal to have on board more than one winch chain, cable or rope, unless spare chains, cables or ropes are secured below the deck. And finally, we recommend that it's illegal to have on board more than one lifting block, unless spare blocks are secured below the deck.

To this date, there has been no public comment on these recommendations. Any questions? Sir?

COMMISSIONER FITZSIMONS: The industry has indicated they are in favor of this?

MR. YOUNG: Yes, sir. They are.

COMMISSIONER FITZSIMONS: Other questions?

(No response.)

COMMISSIONER FITZSIMONS: All right. Is that it?

MR. YOUNG: That's it.

VICE-CHAIRMAN ANGELO: Good job.

COMMISSIONER FITZSIMONS: Very good.

VICE-CHAIRMAN ANGELO: Make them all like that.

COMMISSIONER FITZSIMONS: No further questions or discussions, we'll place Item 2 on the agenda on the Thursday Commission Meeting. Next? Rulemaking Procedure, anybody?

MS. BRIGHT: Good morning. This is — I'm Ann Bright, General Counsel. I'm here to present, really, a very technical minor amendment to our procedures for petitions for rulemaking.

Under the Administrative Procedures Act, the APA, any member of the public may petition a state agency for rulemaking. The state agency has 60 days to enact the petition, or to place it on the agenda before taking rulemaking action.

Under the current procedures, the executive director, when he receives the petition for rulemaking, obtains a recommendation from staff. That recommendation is forwarded to the executive director within ten days of receipt of the petition.

And then the recommendation is then forwarded to the Commissioners, and the Commissioners have until the 60th day after we receive the petition to either request that the item be placed on the agenda, actually, or not.

If no Commissioner requests that the item is placed on the agenda, then the petition for rulemaking is denied. But the concern here is that the 60 days is the same 60 days that we have to respond to the petitioners. So what we're looking to do is to increase that gap so that the Commissioners' deadline for response expires, and then we have a few days to respond to the Commissioners.

So what we're looking to do is to shorten the 60 days to 50 days. That will still allow you, depending on mail, probably between 35 and 40 days to review the petition. And this will also ensure compliance with the Administrative Procedure Act.

And I have received no comments on this. Any questions?

COMMISSIONER FITZSIMONS: Thank you, Ann. Any questions for Ann? No further questions or discussions or objection, I'll place this item onto our Commission meeting agenda for public comment and action. And on to Item 4, Mike, on Alligator Proclamation.

MR. BERGER: Good morning, Mr. Chairman, Commissioners. For the record, I am Mike Berger, Director of the Wildlife Division. And I'm glad to be joined here this morning by Amos Cooper and Monique Slaughter. And they are our biologists down on the coast at the Murphree Wildlife Management Area. And Amos will do the presentation.

MR. COOPER: Good morning, Mr. Chairman, Committee members. My name is Amos Cooper. And I'm a wildlife biologist at the J.D. Murphree Wildlife Management Area.

The Alligator Proclamation has not been reviewed since the Chairman's sunset review in 1997. This presentation is the accumulated proposals since that time. The proposed changes fall into several categories. Housekeeping — revise the definition for processed alligator parts replacing it with the processed products. We've simplified the definition for harpoon or gig. We made other nonsubstantive changes.

Importation and exportation — we allow farmers from out of state to transport live alligators into Texas to other destinations outside the state. Also, they have to provide humane treatment in transport. The change in the importation permit — there is a notification requirement. And it would create an export fee of $4 per alligator.

The purchase and sale of alligators requires a separate retailer/dealer's permit for each place of business. Alligator farms — require hide tag applications to be submitted 15 days prior to the harvest of alligators, except for non-harvest mortalities.

Reporting — extend the deadline for the return of egg collection report. Notification for lost, destroyed, stolen or mutilated hide tags and nest stamps. Possession — allow persons other than hunters and dealers to possess alligators. Require all alligator skulls greater than nine inches to be permanently marked.

Hunting — hide tags to be attached within ten inches of the tip of an alligator's tail. Clarify night hunting of alligators. Clarify one tag per taking device. Require a float to be attached to lines on all handheld devices.

Population management — create a new, reduced priced hide tag to encourage the harvest of sub-adult alligators and establish a fee of $5 per tag.

Nuisance alligator — clarify contracting authority for the removal of nuisance alligators. General issues — prohibits the feeding of free-ranging alligators. Require that persons who kill an alligator in self-defense notify the department immediately, rather than in 24 hours.

And staff makes these additional recommendations to correct typographical errors. Also to exclude Louisiana hatchlings from export fee, and add nest stamps to the report requirements.

There were no public comments related to these proposed changes. And that concludes my presentation.

COMMISSIONER FITZSIMONS: All right.

COMMISSIONER HENRY: Mr. Chairman, I have a question. I don't know if you are aware of a recent television story in the Houston area concerning the alligators and the wardens that were called up.

My question to you is, in your rulemaking and all, there was a game warden — just let me preface this — but there was a game warden that tried to explain, or explained to the reporters and the homeowners in the area when it was appropriate to catch an alligator, or when they had to let them run free, when they couldn't bother them.

And the game warden, Jim, reported that they couldn't bother this alligator because he wasn't really bothering anybody, and he was on his own natural habitat, et cetera, et cetera, et cetera. Is that a written rule that you guys have anywhere, rather than leave this to the interpretation of an individual warden.

We've had, you know, some pretty bad publicity in our area for the last couple of months on the whole business of alligators. And the newscaster sort of laughed and said, Well, I guess after the last deal that they had, Parks and Wildlife doesn't want to get involved in this one. And — my friends look at me and say Ha, Ha, chicken.

MR. COOPER: Well, it's written in there, but as — you know, when you get there, you make that decision on site.

COMMISSIONER HENRY: So there is no hard and fast rule that you guys have as to when one is to be captured and when it's to be left alone? It's an individual judgment?

MR. COOPER: Yes, there is a hard and fast rule. If it's a truly a threat, we don't — you know, if it's in habitat, and it's just there, just because they see it there, it's not bothering anybody, you know, we want to leave it in its natural habitat. But we want to keep you away.

COMMISSIONER HENRY: Mr. Chairman, the whole point, again is —

COMMISSIONER FITZSIMONS: No, no, we're about to get —

MR. COOK: We always have some good alligator discussions with —

COMMISSIONER HENRY: Are you familiar with the concern that I'm expressing to you?

MR. COOPER: Yes.

COMMISSIONER HENRY: Did you guys hear about this?

MR. BERGER: I think you're talking about the one that's very recent.

COMMISSIONER HENRY: Yes.

MR. BERGER: In Montgomery County, I believe, that —

MR. COOK: On somebody's lawn.

MR. BERGER: — one of our Wildlife Division biologists went up there and did assess the situation, and determined that the alligator was in natural habitat, and was not a threat to the —

COMMISSIONER HENRY: The neighbors said he was a threat. There were kids in the —

MR. BERGER: Well, the neighbors allege that there was a cat missing.

COMMISSIONER HENRY: A dog, too.

MR. BERGER: And there was a — well, I didn't hear the dog, but I heard some other critters that were — there were ducks, I think, were supposed to be missing from the pond. But our biologist's interpretation was that this was an animal in a natural habitat, and that he was not a threat to anyone in the area. And so —

MR. COOK: We get a lot of those kinds of calls, folks. There are lots of alligators. Mr. Cooper, Mr. Stinebaugh — these folks — our field folks work with those people.

And there is some similarities in this and bears in, you know, in some of the northern and eastern states where people see a bear and you know, it scares them. They're afraid. And they want the game department to go out there and get that bear and take him away.

Well, the bear is just out there doing his thing. And gators are in these lakes like this — I believe this last one, you know, was just sighted. He hasn't been seen eating anybody's Fifi, or you know, or anything. But the concern is there.

COMMISSIONER HENRY: If a person —

MR. COOK: The cat did disappear. And I think the gator was smiling.

COMMISSIONER FITZSIMONS: Is there a baiting issue here?

COMMISSIONER HENRY: No, I mean, —

COMMISSIONER FITZSIMONS: Yes, sir? Commissioner Montgomery?

COMMISSIONER MONTGOMERY: There are a lot of apartments there. Is this reasonably user-friendly for people who want to hunt and trap? Or is it just getting too complicated and it will discourage usage, in your opinion?

MR. COOK: Amos, I think in work we have a committee of folks that we work with, and the permitting people have been involved in this process?

MR. COOPER: Yes, they have.

MR. COOK: You might speak to that. Do we still have an alligator committee that we work with?

MR. COOPER: No.

MR. COOK: Okay.

MR. COOPER: It's been disbanded. No.

MR. COOK: Okay.

MR. BERGER: We had a interim group that was put together after the first episode several months ago that came up with new suggestions and new requirements, to work closely with law enforcement in order to —

COMMISSIONER MONTGOMERY: Has this been vetted through a user group? Is there a user group we can vet it with? Have they checked it with it?

MR. BERGER: It's been out in the Texas Register, and no — as he said, no comments were made to this.

COMMISSIONER FITZSIMONS: Mike, could you review the — because there is a hunting issue in here somewhere, as you mentioned, sometimes it helps if there is some hunting pressure within the —

MR. BERGER: Uh-huh.

COMMISSIONER FITZSIMONS: But the permit process for alligator hunting is tied to the property, and most ranchers in that part of the world. Correct?

MR. BERGER: That is correct. I understand, right, there is a survey that is a spotlight survey that is required to be done to assess the size of the population, and make harvest recommendations. And the tags are issued based on that survey.

MR. COOPER: Right.

COMMISSIONER FITZSIMONS: And that landowner, Amos, has to apply for the tags?

MR. COOPER: Yes, the landowners apply to us for tags. And we also — we look at it — it depends on acreages, too.

COMMISSIONER FITZSIMONS: Right.

MR. COOPER: Amount of acreage.

COMMISSIONER FITZSIMONS: So you may have people that — they may not be problem alligators yet, but they're on the fringe of development. And they don't apply for a permit, and there's not going to be hunting in that area — I'm getting back to your hunting license here —

I would encourage those who have that habitat near your residential areas, to have — to apply for a permit, or to have outfitters allowed to do that on your behalf and somehow, like we do with the public hunting on dove, handle that for those people. Because it's in that interface between the habitat and people you see the problem is.

MR. COOPER: We have a nuisance control program that takes care of those animals for those people.

COMMISSIONER FITZSIMONS: It's cheaper if you have somebody paid to hunt it.

COMMISSIONER MONTGOMERY: And where I was going with the line of questions was it was just are we — you have a policy to encourage hunting of alligators. And so are we making it too hard, too complicated? Do we need to figure how to streamline it and make it easier?

COMMISSIONER FITZSIMONS: That's exactly my point. I mean, if we can use hunting as — not only the opportunity, but as a management tool here as we do in other areas?

MR. BERGER: And we can talk some more about that and look into it here.

MR. COOK: Some of the detail around this also involves the fact that you're talking about a species that has some federal controls and limits on, you know, eggs and hatchlings and nests and this kind of thing. And to be honest with you, you know, maybe — I think I — you know, I've made the comment to the guys the other day, one of the things that I'd like to see us try to get done here in the next few years is some very, very much liberalization of those restrictions, because alligators are doing fine. They are doing real well. And the opportunity to possibly provide some hunting opportunity, you know, like you say —

COMMISSIONER FITZSIMONS: It's coming next on bear. They are going to love this bear.

MR. COOK: We will have this on bear.

COMMISSIONER FITZSIMONS: Yes.

COMMISSIONER RAMOS: It seems to me that there is a misconception that alligators — and by all means, I'm not at all an expert on alligators. But it seems to me that we ought to be having educational programs, and making the public aware of when an alligator is truly a risk or not.

And I don't know whether in those areas where there is a lot of alligators that we're doing that type of communications and telling them, look, you know, this is an alligator that's in his habitat, and you don't need to worry.

Because you know, all of these TV programs you see people jumping on alligators, and people try to imitate that, or create a situation where that alligator creates that jump or that threat of that attack.

And I don't know if it's Alligator Committee, or game wardens, or something, but it seems to me that we ought to identify areas in the state where we have alligator issues, and try to educate the public on what their typical behavior is or is not.

MR. COOPER: Well, we do quite a bit of outreach. You know, going to different schools, we do Bay Day. We do Gator Fest. We do Cajun Fest. We do the Expo. We do lots of different outreach in those areas.

COMMISSIONER RAMOS: That's great.

COMMISSIONER FITZSIMONS: Commissioner Montgomery?

COMMISSIONER MONTGOMERY: Just to summarize. I understand that Wildlife Division has got to watch federal law, and you've got to understand the status. But I'd like to encourage you to review this and come back and figure out how to streamline a program so it's simple to hunt — makes it simple to hunt, to get a hunting permit and to hunt.

COMMISSIONER FITZSIMONS: So it is clear that you all will get back to us?

MR. BERGER: We will investigate —

COMMISSIONER FITZSIMONS: Hunting is a management tool to deal with this interface.

MR. BERGER: Yes, sir. We'll do that.

COMMISSIONER FITZSIMONS: Thank you, Mike.

Any other questions?

(No response.)

COMMISSIONER FITZSIMONS: No further questions or discussion or objections? I will place this Item 4 on the agenda on the Thursday Commission Meeting Agenda for public comment and action.

And next, we have Statewide Fur-bearing Animal Proclamation. Mike, it's on yours.

MR. BERGER: Again, for the record, I am Mike Berger, Director of the Wildlife Division. And I'm joined this morning by John Young, our state mammologist for the Wildlife Division. And he will — John will make the presentation.

MR. YOUNG: Thank you, Mike.

Mr. Chairman, and Committee members, for the record, my name is John Young. I am the mammologist for the Wildlife Division.

In March 2003, the U.S. Fish and Wildlife Service Division Management Authority notified Texas Parks and Wildlife Department that our application for river otter CITES tags was conditionally granted for the 2002/2003 trapping season.

CITES is an international trade agreement that was entered into by the United States, and it places requirements on trade of animals that may be in danger, or appear similar to an endangered animal.

River otter appears similar to an endangered animal, and fall under the provision of the CITES agreement. Because of this, they may not be sold across state or international boundaries without a CITES tag.

In order for us to achieve approval for CITES tags for 2003/2004 and future trapping seasons, one of the service's requirements was that we develop regulations requiring a CITES tag be placed on all river otter that were taken in Texas.

In response to the requirement by the U.S. Fish and Wildlife Service, staff developed changes to the statewide trapping proclamation, and posted the changes in the Texas Register in July for the 30-day public comment period.

We've amended five sections and four new sections are proposed. Proposed regulation changes focus on requiring all river otter taken or transported into Texas be tagged with a CITES tag within a specified time period, and outline reporting and record-keeping requirements.

We also propose eliminating the retail fur-bearer license, since relatively few have been sold in recent years, and it is similar to the wholesale fur-buyer license. And we renumbered a lot of sections, consolidated provisions, and added clarifying language and definitions to eliminate confusion and tedious regulatory language.

We received one public comment from the Texas Trappers and Fur Harvesters. And based on their comments, staff proposed changes to the proclamation to clarify that nuisance otter are not required to be tagged with a CITES tag, and to restate that nuisance fur-bearing animals may not be possessed or sold.

We propose a change to replace the word "permit" with the word "license" to mean consistency in the regulation, and a change to clarify that otter CITES tags will only be issued to licensed wholesale fur dealers, and individuals who present an otter pelt to a law-enforcement office.

Other public comment received by the Texas — or received from the Texas Trappers and Fur Harvesters included a request to eliminate sale deadline dates, and to exempt fur-bearing animal propagators from letters of authorization to possess and/or lease fur-bearers held for instructional purposes, and also to allow take and possession for instructional purposes outside the commercial season.

Staff do not recommend these changes. That concludes our presentation, if you have any questions.

COMMISSIONER FITZSIMONS: Any questions? No further questions or discussion or objection, I would place this at our Thursday meeting agenda for public comment and action.

Next, Clayton and Mike, surplus deer.

MR. BERGER: And for the record, I'm Mike Berger, Director of the Wildlife Division. I'm joined this morning by Clayton Wolf, our white-tailed deer coordinator. And Clayton will make the presentation.

MR. WOLF: Mr. Chairman, Commissioners, as Mike indicated, I'm Clayton Wolf. I'm the white-tailed deer program coordinator for the Wildlife Division.

This morning I'm going to ask you to consider the adoption of two proposals relating to the management of surplus white-tailed deer in Texas.

In May of this past year, Wildlife Division staff were directed to publish proposed changes to the antlerless and spike-buck deer control permit regulations.

These proposed changes include extending the period of validity by two months. That is, ADCPs would be valid from September 1 to the last day in February. Also, allowing licensed youth under the age of 17 to participate.

That would be in addition to their re-permitted designated harvesters on the property, and also extending the reporting deadline from February 14 to March 14 to accommodate the extended season.

On this particular proposal, we received 17 comments. There were nine that spoke in favor of the proposal. In addition, we polled our White-tailed Deer Advisory committee, who also favored the proposal.

We had eight other comments that actually were not germane to the proposal. Either they were just offering up alternatives and did not express their opinion on this proposal, or clearly did not understand the proposal at all.

The second proposal that we're going to ask you to consider for adoption stems from the passage of Senate Bill 1582. SB 1582 was enacted by the 78th Texas Legislature. And it authorizes the department to issue the political subdivisions or property owners' associations permits to trap and transport surplus white-tailed deer.

The subdivision or property owners associations must demonstrate that there is an overpopulation of deer. If they can demonstrate this, than the department may issue a permit whereby we would designate the destination and disposition of the deer.

Now this sounds probably a lot similar to our Triple-T urban deer removal permits. But in fact, this is published in a new section as directed by the legislation. And the intent is that the removal would be lethal, and that the primary recipient be the Texas Department of Criminal Justice — their facilities in Amarillo and Palestine, where the animals would be processed for consumption by inmates.

Mr. Tom Fordyce, who is the Director of Agribusiness Land and Minerals with TDCJ, was actually instrumental in working with legislators to provide this more economical means for folks to be able to process surplus white-tailed deer.

The proposed name of this new permit is the Trap, Transport, and Process Permit. If you have noted in your Commission hearing books, there are numerous changes within the Triple-T proclamation, such as definitions and permit stipulations. And these are basically just designed to facilitate the incorporation of the Trap, Transport, and Process permit into that subchapter.

Section 65.104 actually outlines the permit stipulations and the more salient points. Those being that trapped deer shall be delivered to a processing facility selected by the applicant and approved by the department. All carcasses shall be utilized either by a penal facility, or by a donation to the department-approved charitable organization.

We basically built in the flexibility as authorized and directed by the Legislature, so that if TDCJ is not able to accept animals that other correctional facilities in Texas can — could take these animals, or the animals could be processed by other facilities approved by the Department of Health, and the meat donated to charitable organizations.

Additionally, a deer may be euthanized at the trap site, or in a processing facility. Transport of live deer shall begin within 18 hours of trapping. That is within 18 hours of the first deer that's trapped.

An applicant shall specify an individual trap site locations for large or political subdivisions. An example of this may be a place like Southwest Research in Bexar County, which is not actually an incorporated city. But they do have surplus deer problems.

In such a case, Bexar County could be a co-applicant, but they would have to designate where the trap site is in Bexar County, so that we know where the operation is taking place.

We are recommending the withdrawal of our CWD testing requirement proposal from the TTP proposal. When we published our regulations, we basically duplicated the CWD testing requirements that we have within TTT.

Upon further analysis and after review, we decided to look at the rationale that we used for adopting CWD testing requirements for scientific breeder deer and Triple-T deer. And what we discovered was that the rationale did not apply in this case.

It did not apply because our current CWD testing requirements apply only to the importation and/or release of live deer, as opposed to deer that are going to process.

Additionally, we conferred with Dr. Ken Waldrup, with the Texas Animal Health Commission, as to their recommended protocol for animals that go to processing facilities. Dr. Waldrup advised us that for animals that are in their monitoring program, that they exempt animals from testing if they pass a pre-slaughter inspection.

Additionally he advised us that for animals that do not pass a pre-slaughter inspection, they do recommend testing. So it is our intent that we would test animals that cannot pass a pre-slaughter inspection. However, we would do the testing.

We feel by withdrawing this testing requirement from the proposal, that we remain consistent in that we only require testing of animals that are going to be released alive. Additionally, by us targeting clinical animals or sick animals that do not pass a pre-slaughter inspection, we actually get the most valuable animals from a disease-monitoring standpoint.

And also, we don't add any additional hurdles or burdens to areas that are dealing with surplus deer problems. I should note that Dr. Waldrup is in the room with us this morning. And if you have any questions relative to the CWD issue, he would be glad to answer those.

We received four comments on this proposal. All — I'd have to generalize that all of the four comments had concerns about our rulemaking, and that our published rules actually met the intent of the legislation, specifically, a couple of the comments referred to our Triple-T regulations, and urging us to remove limitations or minimize limitations for release of live deer.

In actuality, the legislation does not alter our Triple-T regulations at all. It actually authorizes us to creating a new section. And that new section is for the processing of animals, or that is delete the removal of animals.

Thereby, we don't have any problems with management plan implications or stocking policy problems that we do have if a person cannot find a place that has a habitat suitable to carry or release live deer.

And I'll take any questions at this time.

COMMISSIONER FITZSIMONS: Any questions?

VICE-CHAIRMAN ANGELO: Mr. Chairman, I think you might ought to point, Clayton, that the people that have questioned us about, or commented about the proposal we're making really were concerned with the — their desire to be able to take deer and move them anywhere and let them go.

And one of the folks that was advocating the legislation on behalf of Lakeway has called in and talked to me about it. And his presumption was that the legislation as adopted would have to still allow them to trap and transplant and let them go.

And clearly, that's not your opinion of what the legislation required. But I thought maybe you might clarify that a little bit further, because I expect we're going to hear some comment on it tomorrow, and the Commission will need to make a decision with respect to the question.

MR. WOLF: Yes, sir. The original legislation that was file, in fact, targeted our management plan requirements that are driven by our stocking policy, because oftentimes, or in most cases, it's tough for people with live deer to find a place to release them, because we have so few places in Texas that are under carrying capacity.

So there is a limitation that obviously creates a burden. However, that initial legislation died, did not make it out of committee. And that would have exempted these areas from CWD testing and the management plan requirements that we actually required for Triple-T.

The subsequent legislation that was actually adopted did not contain these exemptions, and in fact, did not alter Triple-T. And when TDCJ came into the fray and began to offer up the alternatives, it became clear that what we were talking about, if we wanted to get past the release site requirements, but also provide a means to dispose of deer, that the most logical means would be the processing or the lethal outcome of those deer.

So the Triple-T requirements still do exist and still are consistent with our statutory authority relating to habitat. We have created these rules with these other means. I should note that the people that were concerned — there is a clause in there that was added as a floor amendment, that indicates that if there is a human health and safety issue, that we cannot deny a permit. And they are correct. And our rules do indicate that.

If there is a human health and safety issue, then we must issue the permit, and we must indicate where they will go with the deer. But — and that is why we liberalized our rules, to deal with places where people can go with deer, so that they could go to a processing facility, say, in Johnson City, and donate the deer to a charitable organization if TDCJ, for instance, had a lockdown, or were not able to handle the deer.

COMMISSIONER FITZSIMONS: You would think that —

VICE-CHAIRMAN ANGELO: I think that's the provision that this guy that I'm talking to was talking to me about it, thinks gives him the right to transplant them and let them go.

MR. WOLF: Yes, sir.

VICE-CHAIRMAN ANGELO: You're satisfied it does not?

MR. WOLF: No, sir. Because our Triple-T regulations, which were initially, I guess, targeted to be altered, actually were not in this, and this created the new process.

And although I wasn't familiar — I wasn't there when a lot of these discussions were taking place, the individuals that were — some of them are in this room, indicated that it was very obvious in folks that we talked to this morning, that the intent was a lethal removal.

COMMISSIONER HENRY: Who determines whether or not there's a health and safety issue? I'm thinking of Lakeway, for example. Where, say, they came to us and say it's a real safety issue.

MR. WOLF: Well, I could not speak to that specifically, but I could generalize —

COMMISSIONER HENRY: Who could speak to that specifically? Because that's a major issue that's come before us that we need to be able to speak to.

MR. WOLF: Well, I would say that generally speaking, it probably would not be difficult for them to demonstrate that, from a vehicle collision standpoint. Also, of course, during the rut —

COMMISSIONER HENRY: Well, is it the city council that makes the determination, or the Lakeway Village?

MR. COOK: Yes. I think so. They —

MR. BERGER: The political subdivision would have to make the case.

COMMISSIONER HENRY: That's what I wanted to —

MR. BERGER: But it's not a high hurdle, I don't believe, in this case.

COMMISSIONER FITZSIMONS: Commissioner Montgomery?

COMMISSIONER MONTGOMERY: I was concerned about a subject the Chairman brought up. For the purpose of clarity, can — when we write and publish these rules, can we make it abundantly clear that under this proposal, it would eliminate the CWD testing requirements?

That it is only when there is slaughter and processing, and specifically not under any circumstances intended to be when there is a transportation and release. Just so both things are very clear in the regulation that we approve, whether or not the law is ambiguous or not, we add an overlay in our regulation or rulemaking that does make it very clear and clarifies it so there is no confusion later, and we don't have any of the — Oops, we thought we could let them go. Since we're — because the CWD thing, to me, is a big loophole.

COMMISSIONER FITZSIMONS: That's a good suggestion. And you're hitting what's an important point for tomorrow, is to keep straight in our minds the Triple-T and the TTP. They're for different purposes.

COMMISSIONER MONTGOMERY: Right.

COMMISSIONER FITZSIMONS: The heading on the agenda item here is Surplus Deer. And the TTP was designed to address the surplus deer issue. It's not a wildlife management tool. Triple-T is a wildlife management tool that has not been amended. That's a separate issue. We're still in the habitat issues there. And the TTP is to address a different problem.

COMMISSIONER MONTGOMERY: Right.

COMMISSIONER FITZSIMONS: And I think the fellow that called you also communicated with me. And I think that's the heart of the confusion. That they think that that last amendment — that it can't be denied, somehow changed the Triple-T. So we've got to make sure we've got legislative intent, from our perspective, clarified tomorrow.

MR. CLAYTON: Yes, sir. As I know, people have been working on that since yesterday afternoon to make — because we just received these letters to make sure that we are all clear.

We do have the mechanism for urban deer, basically with almost the same rules as Triple-T. And that's our urban deer removal permit, which does require CWD testing that is identical to Triple-T testing. So that if that animal —if those animals are released, there has to be a negative test results that come in before those animals can be released into the wild. And it is our intent that there is not going to be any mixing or mingling of those rules.

COMMISSIONER MONTGOMERY: I just wanted you to write the language so that it is very clear.

MR. WOLF: Yes, sir.

COMMISSIONER MONTGOMERY: If the law — if anybody wants to challenge the law, that's a different question. But the regulation is very clear that we don't create a back doorway to get around CWD testing.

COMMISSIONER FITZSIMONS: Our objective in getting this done was to have more tools for people to deal with the surplus deer problem. It's not just an urban problem. There's surplus deer problems on private habitat, too, that need to be dealt with. I think we just have to keep the tools straight here.

MR. BERGER: And just as Clayton pointed out when he started this, this is — this creates a separate section in that subchapter. It does not change the section which deals with TTT. It creates a separate subsection and a new program.

COMMISSIONER FITZSIMONS: Important to make that clear.

MR. WOLF: I also forgot to mention that this issue was also run before our White-tailed Deer Advisory Committee. The general consensus was to support the regulation. There were a minority of individuals that had some concerns about testing, with the perception that there would be no testing.

But our intent is that we will do testing in these urban areas of those dead or clinical animals, which are the most-important samples. And we feel like that will be sufficient. And like I said, Dr. Waldrup —

COMMISSIONER FITZSIMONS: The pre-slaughter?

MR. WOLF: Yes, sir. Yes.

COMMISSIONER FITZSIMONS: I think it's important to stress that, so that people wouldn't get the idea — an open exemption there of no testing.

Commissioner Ramos?

COMMISSIONER RAMOS: First of all, I want to commend staff for encouraging youth hunts as part of this program. I think that's right in line with what we've been advocating. And I know myself, and I can speak for

the Commission on that.

A couple of questions. Who would actually do the field testing, pre-slaughter? Would that be —

MR. WOLF: The CWD testing?

COMMISSIONER RAMOS: Yes.

MR. WOLF: It is our intent that we, our field staff, or Texas Animal Health Commission, if they were available, or any individual that we would train, could collect those samples. And those samples could either be collected at the trap site, if the animals were going to be euthanized at the trap site, or they could be collected at the processing facility, where the inspector would be.

COMMISSIONER RAMOS: But your intent is that there would be an inspection pre-slaughter at all levels, be it at the —

MR. WOLF: Yes.

COMMISSIONER RAMOS: — at any facility?

MR. WOLF: It is my understanding that at the trap site, what we would be targeting would be those clinical animals, or those animals that died during the trapping process. The meat inspector actually would not be at the trap site. He actually would inspect the animals at the processing facility.

COMMISSIONER RAMOS: Okay. Well, in TTT, I know there is a time window when you can move animals. Is there a time window for this TTP program, or —

MR. WOLF: There is a time window of October 1 to March 31. But if that human health and safety factor is called in, then that is lifted, and they can trap year-round.

COMMISSIONER RAMOS: Thank you.

COMMISSIONER FITZSIMONS: I want to thank Scott Boruff for his hard work on this. I know Scott has spent a lot of time on this one.

No further questions or discussion?

(No response.)

COMMISSIONER FITZSIMONS: Without objection, I will place this Item 6 on tomorrow's Commission Agenda for review and for public comment and action.

VICE-CHAIRMAN ANGELO: We've got 45 more minutes.

COMMISSIONER FITZSIMONS: It's a record. We can always talk about deer.

COMMISSIONER MONTGOMERY: I have a regulatory question. Are we still in Regulation? On the alligators, if we're going to ask — if there is a lot of implementation on what is proposed up there, rather than take action tomorrow, would it be reasonable to defer until November and have it come back up with the hunting issue addressed?

COMMISSIONER FITZSIMONS: On the alligators?

COMMISSIONER MONTGOMERY: On the whole alligator question.

COMMISSIONER FITZSIMONS: I don't think so. I think they're going to have to look at the permitting process, because right now it's tied to the landowner.

COMMISSIONER MONTGOMERY: Rather than change it. I just — it's going to require a lot of implementation, what they're talking about, the changes in —

COMMISSIONER FITZSIMONS: I don't think it's going to change.

COMMISSIONER MONTGOMERY: Okay.

COMMISSIONER FITZSIMONS: One or the other —

VICE-CHAIRMAN ANGELO: Really, very little applied as any.

MR. COOK: I think — right. It also — Commissioner Montgomery, I think most of these changes that you're looking at are from where we are right now, are simplifications and —

COMMISSIONER MONTGOMERY: Oh, okay.

MR. COOK: — clarifications.

COMMISSIONER MONTGOMERY: Okay.

MR. COOK: It's a very complex thing.

COMMISSIONER FITZSIMONS: My recommendation to staff was to try to get to the front of this problem — alligator problem using the hunting on those fringe areas of interface that are just going to get more and more problematic as development —

MR. COOK: Mr. Chairman, we will absolutely take the Commission's direction and continue to seek and reach for simplification, clarification, and ease of providing hunting and permitting opportunity within this program. It is a —

COMMISSIONER FITZSIMONS: The disconnect I see right now is that there is not going to be any hunting of those alligators unless those landowners apply for permits. So we need to get them in the process.

COMMISSIONER MONTGOMERY: Why don't we give people a tag on their license?

COMMISSIONER FITZSIMONS: It's a very good hunting opportunity here, Donato.

COMMISSIONER RAMOS: Sure. Nothing wrong with that.

COMMISSIONER FITZSIMONS: Any other business before the Regulations Committee?

(No response.)

COMMISSIONER FITZSIMONS: The meeting is adjourned at 11:15.

(Whereupon, at 11:15 a.m., the meeting was concluded.)

C E R T I F I C A T E

MEETING OF: Texas Parks and Wildlife Commission Regulations Committee

LOCATION: Austin, Texas

DATE: August 27, 2003

I do hereby certify that the foregoing pages, numbers 1 through , inclusive, are the true, accurate, and complete transcript prepared from the verbal recording made by electronic recording by Penny Bynum before the Texas Parks and Wildlife Commission.

9/12/03

(Transcriber) (Date)

On the Record Reporting, Inc.

3307 Northland, Suite 315

Austin, Texas 78731


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