May 23-24, 2007 Commission Meeting Agenda
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Texas Parks and Wildlife Commission
Regulations Committee

May 23, 2007

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

BE IT REMEMBERED, that heretofore on the 23rd day of May, 2007, there came to be heard matters under the regulatory authority of the Texas Parks and Wildlife Commission in the Commission Hearing Room of the Texas Parks and Wildlife Department Headquarters Complex, to wit:

APPEARANCES:

THE TEXAS PARKS AND WILDLIFE COMMISSION:

THE TEXAS PARKS AND WILDLIFE DEPARTMENT:

PROCEEDINGS

COMMISSIONER FRIEDKIN: What time do you want to break? Do you want to get started?

COMMISSIONER FITZSIMONS: Yes, I think so.

COMMISSIONER FRIEDKIN: Okay

COMMISSIONER FITZSIMONS: We can just do one item and that will be it.

COMMISSIONER FRIEDKIN: Okay. The Regulations Committee's first order of business is the approval of the previous Committee meeting minutes, which have already been distributed. Is there a motion for approval?

COMMISSIONER BROWN: So moved.

COMMISSIONER BIVINS: Second.

COMMISSIONER FRIEDKIN: Moved by Brown and seconded by Commissioner Bivins. All in favor?

(A chorus of ayes.)

COMMISSIONER FRIEDKIN: Any opposed?

(No response.)

COMMISSIONER FRIEDKIN: Hearing none, motion carries. Committee Item Number 1, Land and Water Plan update, Mr. Cook.

MR. COOK: Thank you, Mr. Chairman. TPWD closed another license buyback application period for the Commercial Bay and Bait Shrimp Boat Licenses, May 4, 2007. In the 20th round for the Shrimp Buyback, we have received 140 applications, of which 49 appear to be acceptable. That's 21 Bay and 28 Bait Licenses. If all acceptable applications result in contracts, this round will cost us $375,700. Currently, there are 635 Commercial Bay and 623 Commercial Bait Shrimp Boat Licenses remaining in the fisheries.

The First Texas Spring Alligator Season began on April 1, 2007. So far, TPWD has issued Alligator CITES Tags, Wild Harvest Hide Tags to 45 hunters for alligators taken in the first half of the new season. The new Alligator season is open statewide during the months through April, May, and June in all but the 22 core counties. Most of the gators that have been harvested have come from the Coastal and South Texas counties, with Cameron County, Brownsville, currently leading with seven gators harvested in Cameron County.

The second year of the Mule Deer MLD program has been successfully completed. We now have 65 ranches encompassing just under three million acres enrolled in that program.

Thank you, Mr. Chairman.

COMMISSIONER FRIEDKIN: Thank you. Can you repeat the number on the buyback? I missed that.

MR. COOK: We have 49 licenses that appear to be acceptable and they will cost us $375,700.

COMMISSIONER FRIEDKIN: All right. Thanks. Thank you, Mr. Cook.

Committee Item Number 2, Commercial Collection and Sale of Nongame Wildlife, Mr. Matt Wagner.

MR. WAGNER: Good morning, Mr. Chairman and Commission. My name is Matt Wagner. I'm the Program Director for Wildlife Diversity. Today, we're coming to you with some proposed changes to our Nongame Permit Program. Just to give you some background, we know there's a growing demand for nongame for the pet trade and food. This is combined with an unrestricted commercial harvest in Texas. Regulations in other states tend to be a little tighter than Texas. The increased pressure in Texas from other out of state collectors and dealers has furthered the growing demand, primarily for turtle meat.

We know that turtles in particular are vulnerable to over-collecting. There's been a number of studies that are done looking at turtles both from a species approach and more of a general approach in terms of the decline in some countries. Box turtles, red-eared sliders, softshells, and common snapping turtles are turtles that are commercially important in Texas.

When you look at the other work that has been done, published literature will point to the fact that unrestricted commercial use does lead to decline in turtles and other long-lived species. Some of the authors are actually in the room with us today. They may choose to speak tomorrow. We just wanted you to see the titles of some of these papers that look at the commercialization of turtles in Texas and in other countries, as well as in the United States.

Now, the current proposal in the Texas Register would create a White List of 84 nongame species legal for commercial use. For species not on the White List, a possession limit of six per species is proposed, but commercial use of species not on the list would be prohibited. Now, currently, no turtles are on the proposed White List. Our intent is to allow continued legal control of turtles in private waters, which is legal today.

As far as the public comment, we've had nearly 1,500 comments on this item. A lot of interest out there. Ninety-one percent in favor of the proposal as published, about 1,300 comments including, I think, 90 comments from elementary school kids out of Memorial in Houston, 140 or so that were opposed to the proposal. The main objections that we've seen are the fact that this rule would prohibit commercial collection of turtles on private property. In addition, it would not allow the importation of indigenous nongame from other states and then the grandfathering of those that are currently in possession of nongame, either for their own use or for commercial breeding operations.

Other opposing views included 26 comments that turtles were a nuisance, eleven comments that we had no scientific justification for these rules, and then seven comments questioning the White List approach. As you can imagine, a lot of the comments had a lot of overlap, but those were the main categories that broke down the opposition.

Now, recommended changes from staff would be to allow for importation of nongame species into Texas for sale and subsequent exportation with documentation of origin. Secondly, we'd like to grandfather existing private collection and develop a procedure over the next 12 months for handling captive breeding operations. This would most likely involve a new permit for captive breeding operations. Because nongame covers such a wide array of wildlife, we want to exempt certain species from this rule. That would include coyotes, bobcats and mountain lions, rabbits, which are hunted as nongame but there is no limit, and then American bison. We found out that bison are actually classified as nongame in Texas and that there are people engaged in commercial activities for bison.

To address the private property concerns, a regulatory alternative is provided for your consideration. This would be to allow commercial use from private property for three groups of turtles, the red-eared slider, the softshell turtles of which there are five subspecies, the common snapping turtle. Annual reporting would still be required as currently from our nongame dealers.

That is what I have for you. If there is any discussion, we'd be happy to answer your questions.

COMMISSIONER FITZSIMONS: Matt, I've learned over the past six years ‑‑ it's taken me a while to learn this ‑‑ but even the first question from me on the Regulations is the enforcement issue. Fish traps in public waters are illegal. Today, turtle traps aren't. If we go with this proposal, all traps in public waters will be illegal. Right?

MR. WAGNER: I may ask David Sinclair to approach and answer that question.

COMMISSIONER FITZSIMONS: I don't know if Flores can fill in for ‑‑ oh, come on, David, I didn't see you back there. You're out of uniform.

MR. SINCLAIR: I'm dressed up.

VOICE: Undercover.

COMMISSIONER FITZSIMONS: Undercover, huh, undercover turtle operator?

MR. SINCLAIR: Thank you, Mr. Chairman and members. I'm Major David Sinclair, Chief of Wildlife Enforcement. Mr. Chairman, in regard to your questions, fishing devices are prohibited in public waters including those that are capable of catching fish for commercial sale. Right now, a person can use a minnow seine or a minnow trap to catch bait. And then, we also have the regulation about the turtle traps and there's a little bit of a conflict there. So it would prohibit the use of the turtle trap.

COMMISSIONER FITZSIMONS: Second question ‑‑ so it makes your job easier?

MR. SINCLAIR: Much easier.

COMMISSIONER FITZSIMONS: It makes enforcement easier in public waters?

MR. SINCLAIR: Right.

COMMISSIONER FITZSIMONS: Okay.

COMMISSIONER HOLT: You'd be taking away turtle traps from public waters.

MR. SINCLAIR: Right.

COMMISSIONER FITZSIMONS: If I say it a different way, turtle traps are sort of an exception to the fish trap prohibition now.

COMMISSIONER HOLT: Yes, that's right.

COMMISSIONER FITZSIMONS: We would eliminate that with this proposal.

MR. SINCLAIR: Right.

COMMISSIONER FITZSIMONS: Okay. Now, how do you tell the difference between a turtle captured in private water and a turtle captured in public water?

MR. SINCLAIR: Well, they look very much alike. So it's going to amount to documentation. Someone in possession is going to have to have documentation where they acquired the turtle.

COMMISSIONER FITZSIMONS: I don't mean to be light on this. This is a serious subject.

VOICE: Yes, it is.

COMMISSIONER FITZSIMONS: There's a choke point, right, in the commercial trade here and I'm going to guess they're going to China at the choke point. It's going to be DFW, Houston Intercontinental. Is there anywhere else? Is that pretty much it?

MR. SINCLAIR: Well, that's probably going to be it for export.

COMMISSIONER FITZSIMONS: Eighty-ninety percent of it?

MR. SINCLAIR: Yes.

COMMISSIONER FITZSIMONS: So a warden inspects a shipment. What's that person going to have to have to prove that it didn't come from public waters?

MR. SINCLAIR: Well, there will be those

trans-shipments that are just coming through. There should be documentation from the country or state of origin. Those may be just passing on through. If there is anything being exported out of the state, there should be documentation from the nongame dealer. There should be some document attached to that invoice or an affidavit showing where it came from.

COMMISSIONER FITZSIMONS: When you say, "some document," I want to get into some detail on this because this is important.

MR. SINCLAIR: Okay.

COMMISSIONER FITZSIMONS: Is it to the point where the warden can look at that document ‑‑ or maybe we need to propose this as part of the regulation ‑‑ can you look at that document, and pick up the cell phone, and call that person and say, Did you sell 275 turtles to XYZ?

MR. SINCLAIR: Correct. We've looked a little bit in the commercial fishing at the trip tickets that we've started here recently in talking about something similar to that, which would show the buyer and the seller, enough information about the seller that we'd be able to contact them to confirm whether or not the sale was made.

COMMISSIONER FITZSIMONS: Okay. Do you feel comfortable with this, that you can enforce it?

MR. SINCLAIR: Yes, sir, I think so.

COMMISSIONER FITZSIMONS: And gather the data so that Matt can come back and say ‑‑ because right now, we don't have real good numbers, right? It's pretty wide open.

MR. WAGNER: We do have annual reports from the dealers. We believe that that information is obviously on the honor system. It's probably underreported. Another dimension to this would probably be a little bit more site-specific information of the origination of the turtle. Right now, it's at the county level.

COMMISSIONER FITZSIMONS: That's what I'm driving at. I want as good a data as we can get so that we understand whether or not they're protecting the resource.

COMMISSIONER RAMOS: Let me be more simplistic.

COMMISSIONER FRIEDKIN: Go ahead.

COMMISSIONER RAMOS: If I want to sell a turtle, what do I have to do?

MR. WAGNER: Right now, you would need to either have a nongame permit or, if you were a dealer, a nongame dealer permit.

COMMISSIONER PARKER: What are you proposing?

COMMISSIONER RAMOS: And to have a nongame dealer permit, what do I have to do with regards to the state? In other words, do they weekly, monthly, quarterly give us a report? I just sold 84 turtles.

MR. SINCLAIR: There's no reporting by the collector. That's the nongame permit. Then we have the nongame dealer permit and they're required to record the person that they buy from. They send in that report annually.

COMMISSIONER RAMOS: I think what I'm concerned, the person who is eventually selling and buying the turtles for consumption, do they both have to report to us?

MR. WAGNER: The nongame permittees sell only to dealers legally. And so, the dealers capture the information from the nongame permittees.

COMMISSIONER RAMOS: Okay. All I'm trying to determine is ‑‑ is the system such that we can, like Joe was saying, identify the source, site-specific, and then where it went, and then from that point where eventually it was shipped?

MR. WAGNER: That's what we are going to design. We believe we can do that. Right now, we get that information at the county level.

COMMISSIONER RAMOS: With an affidavit from a seller. I got 84 turtles from x county.

MR. WAGNER: Right.

COMMISSIONER FRIEDKIN: Currently, on a Wildlife Resource Document, don't we capture that specificity, that information? Do we know where it came from?

COMMISSIONER HOLT: Only by counties so only for the county.

COMMISSIONER FRIEDKIN: By county, but not specifically?

MR. SINCLAIR: The Wildlife Resource Document is not used for that.

COMMISSIONER FRIEDKIN: I understand.

COMMISSIONER PARKER: Do you plan to do?

MR. SINCLAIR: I think we're looking at more detailed information. I guess when we first started this program, the collector was responsible for recording as well, but I think there was some concern about total figures being skewed a little bit.

COMMISSIONER RAMOS: Excuse me. Is the reporting weekly, monthly, quarterly, annually?

COMMISSIONER HOLT: It's annually.

COMMISSIONER RAMOS: Okay. And the only reason I say this is if it's monthly, or if it's in a shorter period of time, it gives you more of an opportunity to verify the accuracy of that on an annual basis, where you've got to go back 10 and a half months and say that these go back ‑‑ you got a lump sum of 2,400 turtles. Do you know what I'm saying? It makes your job, I think, a lot harder if you don't have a monthly reporting and a site specific. Otherwise, they can just say, Here's 2,400 turtles that I've had during the last year.

MR. SINCLAIR: With the trip tickets that I mentioned earlier, we're talking about having them submit those, you know, within 48 hours.

COMMISSIONER RAMOS: Okay.

MR. SINCLAIR: They have a batch to go to a dealer and then they're going to be exported, they would be recorded to us where we can verify pretty quickly.

COMMISSIONER RAMOS: So that we would keep an accounting, I guess, on a weekly basis or whatever, or a daily basis, and at the end those tickets should tie into the final inventory?

MR. SINCLAIR: Correct.

COMMISSIONER HOLT: Do you have the resources to do that?

COMMISSIONER PARKER: That's what I was going to ask.

COMMISSIONER FRIEDKIN: And the system design.

COMMISSIONER PARKER: I want to ask a question along those same lines. Is there going to be any sort of charge for this record keeping by the commercial dealers?

MR. WAGNER: There currently is a fee for the

nongame dealer permit. I believe it's $60 ‑‑

COMMISSIONER PARKER: No, I'm not talking about the permit. I'm talking about this everyday thing.

COMMISSIONER FRIEDKIN: You're talking about the reporting?

COMMISSIONER PARKER: What?

COMMISSIONER FRIEDKIN: The reporting?

COMMISSIONER PARKER: Yes, every shipment. I'm not talking about a one-year permit deal of a few bucks. I'm talking about every time we have to send a guy out to the airport or to wherever, that there is going to be a charge for that service that we are performing.

MR. WAGNER: That's something that we would definitely need to consider.

COMMISSIONER FITZSIMONS: Well, I think what we're boiling down to here, if I may, is we ensure that this isn't costing us money. Obviously, the easier thing to do is to ban all, but personally I think when you do that you're ignoring the fact that people can kill all the turtles, the resource anyway, without being commercial practice. So if the real concern here is for the resource, then you ban the public waterways first because that's obviously no connection between the use and the stewardship. The people who are taking that resource have no control over the health of the resource. We've got to get some real data here. It's going to cost money to get it and I want to make sure that the people who are benefitting commercially are paying the full freight for that oversight.

MR. WAGNER: And we have talked to the dealers about this. I think many of them understand the cost of tracking this and would probably be willing to pay, obviously, to manage the resource.

COMMISSIONER PARKER: But I think that it's our responsibility to decide what it's going to cost us and not allow some dealer out there to decide what it's going to cost him.

MR. WAGNER: Understood.

COMMISSIONER FRIEDKIN: Right.

COMMISSIONER RAMOS: And the more fundamental issue is, can we quantify the impact that this industry has had on the resource? In other words, can we say, We have lost 40 percent of the turtles, 20 percent, 10 percent, because if it's a substantial impact, then we ought to be more aggressive. If it's a concern into the future, then perhaps our regulations should be not quite as strict. So from a staff standpoint, I mean, how do you get to quantify the impact, the current impact of the shipping of these turtles? Would you say it's mild, medium, hard, 10 percent? I'm trying to get a picture in my mind as to how significant or how aggressive our regulations should be.

MR. WAGNER: I would characterize it like this. We have a huge and growing demand for turtle meat. We have unrestricted commercialization today. We need to move towards sustainability. Is this activity sustainable over the long term? We don't have the population data to couple with the take. So we want to approach this from a science standpoint. Unfortunately, all we know is the science has been done elsewhere, but that work applies to Texas as well. We know that unrestricted take over the long run leads to decline. That's a fact. So we want to get in front. I think it's safe to say that the three most commercially important turtles aren't ready to be put on a threatened list, but we don't want to get there.

COMMISSIONER RAMOS: Okay.

MR. WAGNER: We want to get in front of it now.

COMMISSIONER RAMOS: Right.

MR. WAGNER: We want to take the information that we can get and come back to you with more specific information. If we need to further restrict, based on the biology of these animals, and what is commercially sustainable, we can do that. We can propose further rules for you.

COMMISSIONER RAMOS: And the aggressiveness of the regulation will be driven by what we learn as we go forward?

MR. WAGNER: That's right.

COMMISSIONER RAMOS: Okay. That's fair.

MR. COOK: I think, Matt, is it safe to say ‑‑ I mean, what we're doing now, to address Mr. Parker's question, what we have now is a system that is pretty wide open. We don't have whatever our rates that we're currently charging for the permit. We're going to look at that with this group. We're going to look at what it's going to take for us to collect, analyze, come back year after year with recommendations regarding the regulations, whether that's more or less than this. That's something that we need to work with this group on, work with the science folks on, and we'll find that number that hopefully provides funding to cover our costs. What we've got now is a cost in resource and we need to be able to get a better handle on that.

This is an interesting process that we're in here with this one, one that we've been working on for about 15 years really. This is a big step. As you will recall, staff's original presentation was, proposal was, and original recommendations were cut if off. Based on the input that we got through this process, working with folks that are involved, private landowners that are involved, we felt like what staff has put forward as an option here ‑‑

MR. WAGNER: A step in the right direction.

MR. COOK: ‑‑ is a reasonable ‑‑

MR. WAGNER: Right.

MR. COOK: ‑‑ recommendation or a reasonable step. It allows us to gather information. We need to develop our system, our reporting system better, and possibly, as Commissioner Ramos says, require a more frequent reporting process that really helps in the enforcement. When we get a truckload of turtles out there on the highway, we're going to want to be able to trace that truckload of turtles back to that landowner.

COMMISSIONER FRIEDKIN: Yes, specifically.

COMMISSIONER FITZSIMONS: We've got out lawyer here so I'm going to ask you this question. Is there a presumption if they can't prove that it's legally harvested on private waters, will there be a presumption?

MS. BRIGHT: I don't think there's a presumption either way.

COMMISSIONER FITZSIMONS: Yes.

MS. BRIGHT: I mean, just like with any criminal matter, the state has the burden of proving it beyond a reasonable doubt. So you've just got the normal criminal standard.

COMMISSIONER FITZSIMONS: Well, we can set it up restrictively enough in our regulations to require enough of a paper trail to put the burden on the industry to make the enforcement job easier. Right?

VOICE: Yes.

MS. BRIGHT: Right.

VOICE: Sure.

COMMISSIONER FITZSIMONS: And the data collection. Because in the end, this is all about keeping things aboveboard so that we can get real data.

MS. BRIGHT: Right.

COMMISSIONER RAMOS: I think it needs to go both ways. I think there needs to be teeth for the person that is wrongfully selling it and the person that is wrongfully buying it.

COMMISSIONER FITZSIMONS: What would the penalty be?

COMMISSIONER RAMOS: I don't know, but it seems to me that you need both ends of it, someone that's illegally selling them and someone that's illegally buying them, as compared to just one or the other.

MS. BRIGHT: I think that those would both be prohibited. I can just answer one of the questions and then I'll let David sit here.

COMMISSIONER RAMOS: Okay.

MS. BRIGHT: There are a couple of things you're talking about that really are not part of the proposal. One is the fee. It is ‑‑

COMMISSIONER PARKER: One is what?

MS. BRIGHT: The fee, the fee for the permit. That something, as Bob was describing, that we can come back to the Commission with. We can look at how much we think it's going to cost to administer this program and come back with a fee proposal. That's not part of this. This was just the regulations. Again, we can come back with a recommendation regarding an appropriate fee for these two permits and whether there should be another type of permit.

On the reporting, there is reporting that is required, but the specifics of those reports are really pretty much, those are basically delegated to staff. So the detailed reporting would be something that we have some flexibility in developing, apart from this rulemaking process. I know, as Matt just described though, we'll be working on that.

MR. COOK: I think the point's well taken. I think the input that we're getting, the interest that the Commission is showing, helps staff right here just to begin to formulate and think about, okay, well ‑‑

COMMISSIONER FRIEDKIN: Specific recommendations on how we deal with it, what to gather ‑‑

MR. COOK: ‑‑ where do we end up a year from now or a few months from now with that program.

COMMISSIONER FRIEDKIN: Sure.

COMMISSIONER HOLT: You focus on sustainability.

MR. COOK: Sure.

COMMISSIONER PARKER: Are we doing anything to, do we have any responsibility towards a health issue with other state agencies as far as allowing unsafe product to get into the food chain, whether it's onshore or offshore?

MS. BRIGHT: The law is pretty clear that a state agency, just like so many governmental bodies ‑‑ I think it's sort of one of the basics of our form of government ‑‑ is that the state agency only has that authority that is expressly granted to it and that authority that is implicit in those express powers. We do not have authority to regulate generally. There are a few rare instances in the Parks and Wildlife Code, but in this particular arena, the Parks and Wildlife Department does not have authority to issue regulations based on human health. Our regulations are to be based on, basically, the survival of the species. There is some specific language in the Parks and Wildlife Code.

The entity that's more charged with human health ‑‑ I mean, there are all sorts of various entities ‑‑ you have local health departments, you have the state health department. Again, our regulations aren't based on human health. Now, I should also point out that if there is a ban, either in public water or in all water, on collection, there will be an incidental effect in that it if there's a concern about the safety of turtles collected in these bodies, it will have an incidental effect of addressing those human health issues. That can't legally be the justification for adopting these rules.

MR. COOK: Yes, our recommendation has got to be based on the resource. We're working with, through this process just like we do in deer or several other species, with the appropriate health agency that has that kind of responsibility, being sure they know what we're doing. If we can assist them in any manner, we will certainly do so.

MR. WAGNER: Just so the Commission knows, too, beginning September 1, we are going to be contracting with Texas A&M University to begin looking at the commercial trade. We'll be expanding upon that as the years go by. This is a first step for us and we're excited to take a closer look.

COMMISSIONER HOLT: You mean, to understand the trade itself ‑‑

MR. WAGNER: The trade itself.

COMMISSIONER HOLT: ‑‑ both within the state, nationally, and I guess internationally?

MR. WAGNER: Where are the pressures coming from? What is the demand and how will it grow?

COMMISSIONER HOLT: Yes, because that's going to be the key ‑‑

MR. WAGNER: Are these rules working?

COMMISSIONER HOLT: ‑‑ as I understand the marketplace.

COMMISSIONER FRIEDKIN: Okay. So, Matt, would you kind of summarize the regulatory alternative, and just kind of recap where we are at this point; and also confirm, we do not have any scientific indication, evidence, that there's a decline in these populations at this time in this state for these three species? Right?

MR. WAGNER: These three species, at this time, I think ‑‑ and it's safe to say, and there are experts that may know more detail ‑‑ there is not a concern to worry about them being a threatened species. There may be local situations where these turtles have been depleted.

COMMISSIONER FRIEDKIN: Right.

MR. WAGNER: We don't have that information.

COMMISSIONER FRIEDKIN: This is one way to gather it?

MR. WAGNER: That is correct.

COMMISSIONER FRIEDKIN: Okay.

MR. COOK: So our process here to proceed forward, Matt, your recommendations?

MR. WAGNER: The recommendation is the current proposal, and to accommodate the private property concerns, we have this alternative and we would like for you to consider that as an alternative and adopt it.

COMMISSIONER FITZSIMONS: Just for those three ‑‑

COMMISSIONER PARKER: I want to ask one more question. In the lakes on private property, are we just going to allow the landowner to contract with a trapper, and they go in there and they just take all the turtles out of that lake they possible can?

COMMISSIONER HOLT: Of those three.

MR. WAGNER: On private property?

COMMISSIONER PARKER: On private property.

COMMISSIONER HOLT: Yes, of those three?

COMMISSIONER PARKER: Yes.

COMMISSIONER FITZSIMONS: Which they can do today,

non-commercially.

COMMISSIONER PARKER: Do we know whether or not turtles move back and forth between public waterways and private lakes and ponds?

MR. WAGNER: We know that they do. When you build a pond, turtles come from somewhere. Most likely, they're from public water. Some of these turtles can travel quite a distance. There are experts here and tomorrow you may here a lot more. I would say that our charge, if you should choose this alternative, would be to take a closer look at areas that are being heavily collected. Maybe this would be as a study, where you set up a study site, you heavily remove those turtles, and then look at the response from the public waters. How long does it take to replenish those areas? Obviously, if you remove the adult population from a pond, you have depleted the reproductive capacity for that pond, but that's not to say that other turtles wouldn't come into that pond over time.

COMMISSIONER RAMOS: Two questions. One, is the regulatory alternative in addition to the other or in lieu of the other proposal?

MR. WAGNER: It would be in addition to the current proposal.

COMMISSIONER RAMOS: In addition, okay. Under the regulatory alternative, if we would go with that, would the private landowner also have to have a permit to allow the commercial sale of those particular turtles?

MR. WAGNER: Not unless the landowner was a dealer.

COMMISSIONER RAMOS: Okay. So then, how are we going to keep the record to ensure that those animals, in fact, had come from that landowner as compared to from somewhere else?

COMMISSIONER PARKER: That's totally open-ended.

COMMISSIONER FRIEDKIN: My understanding is that staff is going to generate some specific recommendations and come back to us.

MR. COOK: Yes.

COMMISSIONER RAMOS: Okay, but do you know whether you were anticipating having the private landowner also advise us that he in fact is selling commercially turtles on his place or not?

MR. WAGNER: Well, the ‑‑ and this may be related to the law enforcement end ‑‑ we would probably need to know, from a law enforcement standpoint ‑‑ where these turtles ‑‑

COMMISSIONER RAMOS: Right.

MR. WAGNER: ‑‑ specifically are coming from ‑‑

COMMISSIONER PARKER: And how many.

MR. WAGNER: ‑‑ and how many. We could go back then and monitor those situations more closely.

COMMISSIONER RAMOS: That's right. And where I was leading to is ‑‑ to the extent that a private landowner, for example, was depleting his turtle population because of the great demand, that we would reserve the right perhaps on a site specific say, in view of your not having any ‑‑ I'm just concerned about the private landowner that might abuse, as you might say, this particular exception and how we could protect against that.

MR. WAGNER: I think we're going to, we have to over the next year, take a closer look. It may be that some possession limit, some size limit, would be appropriate.

COMMISSIONER RAMOS: Yes.

MR. WAGNER: We could present that to you.

COMMISSIONER RAMOS: Okay.

COMMISSIONER FITZSIMONS: Here's the problem. I want to address one thing, if I may. I've heard this a couple of times and I'm afraid you said it. We're not talking about private property here. These turtles are not private property. They are in private water. Now, I've seen some people make the statement that they're not in private water. They are in private water. So it's a very unique situation that we have. It's still a wild animal. It's a public resource. We don't allow commercial harvest of wild animals in most cases. Now, it's considered market hunting. Well, clearly that's the case on the public waters. So we're going to eliminate that. Clearly, the classic market hunting situation is not sustainable. We've got to stop.

We're really in uncharted water here and I think it's important that we go carefully, we understand what we're doing, and, most importantly, we get as much data as we can and make sure that the people who are making money off this public resource are paying for us to get that data. If we drive it underground, you're not going to get the data. I don't think you can wave your hand and ignore a couple of billion, you know, the demand of China. We're going to have to work our way through this whether we eventually move towards some sort of ‑‑ is aquaculture the right term for a turtle culture?

(Pause.)

COMMISSIONER FRIEDKIN: We're going to have to have enough landowners who are willing to participate in it as well.

COMMISSIONER FITZSIMONS: Yes, that's right, but we're in a no man's land here ‑‑

COMMISSIONER FRIEDKIN: That's right.

COMMISSIONER FITZSIMONS: ‑‑ because this is a public resource and allowing the commercial harvest of a public resource is usually in conflict with long term sustainability.

COMMISSIONER RAMOS: Yes.

COMMISSIONER FITZSIMONS: So we've got a lot of work to do.

COMMISSIONER RAMOS: And I echo that. That's my concern with this, because we're now making an exception, as you might say, for a public resource.

COMMISSIONER HOLT: When you start regulating it, then you ‑‑

COMMISSIONER PARKER: We're not only making ‑‑

COMMISSIONER RAMOS: Well, we're commercializing it.

COMMISSIONER FITZSIMONS: Well, we have some more important news than that. It's been reported from the Senate that Commissioner Bivins has been confirmed from the floor.

(Applause.)

COMMISSIONER BIVINS: Thank you.

COMMISSIONER FITZSIMONS: Careful what you wish for. Right?

COMMISSIONER RAMOS: I heard it was not unanimous.

COMMISSIONER FITZSIMONS: Do you have your prepared statement?

COMMISSIONER RAMOS: It was not a unanimous vote.

COMMISSIONER FITZSIMONS: Chairman Friedkin, I'm sorry if we're hogging this.

COMMISSIONER FRIEDKIN: No, you raise good points.

Commissioner Parker?

COMMISSIONER PARKER: Coming off of what Commissioner Ramos said, and the Chairman, we're in uncharted waters with this particular issue. What have other states done and how have they treated this issue, as opposed to what we were doing now in these uncharted waters? Can we learn anything by looking at other states, what they have done with the issue of the commercial turtle harvest?

COMMISSIONER FRIEDKIN: Matt, how would our regulatory alternative, if adopted, compare to what some other states are doing?

MR. WAGNER: This alternative would be the first that I know of in any state.

COMMISSIONER PARKER: So every other state that you know of just allows the commercial harvest of turtles?

MR. WAGNER: Most other states have some form of regulation where there would be either a possession, a season, or a size limit. There are some states that are fairly unrestricted like Texas. There are other states that have completely prohibited commercial collection.

COMMISSIONER PARKER: How many states have completely prohibited it?

MR. WAGNER: I would say about six, a half a dozen, that have completely prohibited commercial collection. It may be ‑‑

COMMISSIONER PARKER: Do you know what six those are?

MR. WAGNER: I'm sorry. I can get that information for you.

COMMISSIONER PARKER: Okay.

COMMISSIONER BIVINS: Isn't that part of the reason there's such a popularity in Texas than the other states have, because there's been so much restriction in other states that they come to Texas?

MR. WAGNER: There are cases of people coming into Texas because of the lighter restrictions, yes. We've heard from them.

COMMISSIONER PARKER: Are there nonstop flights, is DFW the only airport in the United States that flies nonstop to China?

COMMISSIONER BIVINS: No.

COMMISSIONER PARKER: So why would we be using, why would people be using DFW as a gathering point for all these other turtles coming across our state lines?

MR. WAGNER: I'm not sure. It may have something to do with the U.S. Fish and Wildlife agents that may be assigned to those ports.

COMMISSIONER PARKER: I think that's a question that we would like answered.

COMMISSIONER FITZSIMONS: I think the point is clear. We have to take into account a fact that if you don't have a complete ban, you are going to be a point of least resistance for bad operations. You've got to take that into your model. Now, I'm not all convinced that this will work, but I think that it would be a mistake to not take the opportunity to gather the data as a transition towards aquaculture. The demand is not going away. We just have to make sure that that demand doesn't adversely affect our natural resource.

COMMISSIONER RAMOS: And in line with what Joe is saying, there's nothing to keep us from granting a permit at will, as you might say, to where as we see this develop and we see a particular landowner just hammering his turtle population, that that permit could be terminated immediately.

COMMISSIONER FITZSIMONS: Yes, and that's a problem. You would think that the classic American Wildlife Management Model would say, A person's not going to do that to extra pay a renewable resource if they're doing it commercially. The problem in this case, that I see, is that people may use the commercial avenue in order to extra pay, as a pest control management.

VOICE: Oh, yes.

COMMISSIONER FITZSIMONS: That's not the result you want.

COMMISSIONER HOLT: That's not the intent.

COMMISSIONER FITZSIMONS: That's not the way we normally set up incentives for management. If you drive it underground, you'll never know what's going on and you'll never get the numbers.

VOICE: Right.

COMMISSIONER PARKER: The only other thing that I would refer all the Commission to is this packet that is sitting in front of your desk that nobody has picked up. It looks like this. It is letters from very knowledgeable people, you know, like the Fort Worth Zoo. Here's one that brings in Mrs. Lee Bass' name to it. You have letters from all sorts of folks, both in the state and out of the state. Apparently, the state of Georgia has taken steps on this. Here's Baylor University, a freshwater turtle specialist group, Go Cowboys Oklahoma State, Don't Mess with Me ‑‑ Boone Pickens was with me on that ‑‑ to China Reptiles and Wildlife Research Institute, Okinawa, and so forth and so on. Here is ‑‑

COMMISSIONER FITZSIMONS: John, I read through those and I think it's overwhelming, the support for the position that I just stated, which is we've got to look at ‑‑

COMMISSIONER FRIEDKIN: Capturing information that we need.

COMMISSIONER FITZSIMONS: ‑‑ getting the information that we need to do that. Now, I don't think anybody's going to disagree with the step of prohibiting all commercial trade in public waters. Now, the real question is ‑‑ what do you do on the private side? Do you take the opportunity to gather as much information as you can, as we're told? Now, when you get into this international wildlife trade issue, it's huge. Is there a legitimate way to do it? I'm not convinced there is, but I'm willing to ‑‑

VOICE: Try.

COMMISSIONER FITZSIMONS: ‑‑ give it a try as we gather the information.

COMMISSIONER FRIEDKIN: There's a lot of demand for it. You're right. It's a very serious issue and one that we need to gather more information on.

COMMISSIONER FITZSIMONS: No, we're here tomorrow. We don't decide anything?

COMMISSIONER FRIEDKIN: Right.

COMMISSIONER FITZSIMONS: I understand.

COMMISSIONER PARKER: For me, it's that we're opening up, for the first time, like you said, Mr. Chairman, we're opening up the legitimization of commercialization of a wildlife resource.

COMMISSIONER FITZSIMONS: No, we're not. We're restricting it. It's open today.

VOICE: It's open today.

COMMISSIONER FITZSIMONS: John, you've got to exactly opposite. I said, Today, it's completely wide open. We are putting some controls around it. We're completely prohibiting in the public waters, which are numerous, many tens of thousands of streams and miles of rivers and lakes.

COMMISSIONER FRIEDKIN: And we will develop it as we get some more information.

COMMISSIONER PARKER: What we don't want to let this overlap into another species.

COMMISSIONER FITZSIMONS: Listen, I think you and I agree, market hunting is not sustainable. We've got a unique situation here that we have to look at very closely. As I say, I'm not at all convinced that we don't have to go to a complete ban eventually, but I think it would be a mistake to not take the opportunity to gather as much information as you can. If you drive this underground, you're not going to get the data.

COMMISSIONER PARKER: Right.

COMMISSIONER FITZSIMONS: You're not going to get the information. Now, we don't decide anything today.

COMMISSIONER PARKER: Right.

COMMISSIONER FITZSIMONS: I think we need to take the opportunity tomorrow. We're going to hear from a lot of people ‑‑

COMMISSIONER FRIEDKIN: We're going to learn a lot.

COMMISSIONER FITZSIMONS: ‑‑ tomorrow that are much better educated on the specifics than we are. The policy issue, I don't think we should allow that to override the policy issue here of making sure that we keep things in the sunlight.

COMMISSIONER PARKER: I agree with you 100 percent on that driving it underground because of all those exporters will do is just move to another airport.

COMMISSIONER FITZSIMONS: Yes.

MR. WAGNER: Now, obviously a complete ban would take away that commercialization. It will eliminate it.

VOICE: Easier to enforce.

MR. WAGNER: It may drive it underground as well. It's easier to enforce. I know, from the last Commission meeting, that we were asked to look at the sustainability. Is this activity sustainable or not? So that is what we're providing here, is a movement towards that sustainability.

COMMISSIONER PARKER: Could you find out, between now and tomorrow, what states do and don't otherwise?

MR. WAGNER: Yes.

COMMISSIONER FITZSIMONS: And maybe where they permit or regulate turtle farming ‑‑

MR. WAGNER: Yes.

COMMISSIONER FITZSIMONS: ‑‑ where there is no wild, you know, completely enclosed?

MR. WAGNER: There are a number of those.

COMMISSIONER FITZSIMONS: Okay.

MR. SINCLAIR: Mr. Chairman?

COMMISSIONER FRIEDKIN: Yes?

MR. SINCLAIR: If I could respond, Commissioner Ramos had a question earlier and then a comment on the penalty. Somewhat missed the offense on this regulation. It's a Class C misdemeanor, $25 to $500. Also, from time to time game wardens file falsification of a government document. We don't have that much success with convictions, but we do file that charge sometimes and it can be as high as a felony.

And then, you also commented about the person with the private pond and the public resource in that pond. I think, even if they don't put their hands on the turtle, if they're receiving compensation for those turtles, well then they're going to be required to have the nongame permit. Originally, that was called a collector's permit and it was a misnomer, because we had people in the captive breeding business. I think it would also apply to that person that owns that private property. If they're selling those turtles, they would have to have a license as well. So there would be some reporting of that at the end.

COMMISSIONER FITZSIMONS: If each turtle is a separate offense, you're going to have a pretty high fine.

COMMISSIONER RAMOS: And it would be.

COMMISSIONER FITZSIMONS: If each turtle is a separate offense, it's going to be a pretty high price to pay.

VOICE: A profit center.

COMMISSIONER FRIEDKIN: Any other discussion?

(No response.)

COMMISSIONER FRIEDKIN: Mr. Ramos, did you have another comment?

COMMISSIONER RAMOS: No.

COMMISSIONER FRIEDKIN: Discussion?

(No response.)

COMMISSIONER FRIEDKIN: All right. If there are no further questions or discussion, I'll place this item, as amended, with the regulatory alternative that we discussed, on the Thursday Commission meeting agenda for public comment and action.

COMMISSIONER FRIEDKIN: We are going to break for lunch, and recess, and reconvene afterwards.

COMMISSIONER FITZSIMONS: Hey ‑‑

COMMISSIONER FRIEDKIN: Oh, yes.

COMMISSIONER FITZSIMONS: ‑‑ just a minute. You need to read that now.

COMMISSIONER RAMOS: It's on page 4.

COMMISSIONER FITZSIMONS: Page 4.

COMMISSIONER RAMOS: At the very top.

COMMISSIONER FRIEDKIN: Okay. Before we lose everyone ‑‑

COMMISSIONER BIVINS: Thank you. We will now recess for Executive Session pursuant to requirements of Chapter 551 of Government Code referred to as the Open Meetings Act. An Executive Session will be held at this time for the purposes of deliberation of real estate matters under Section 551.072 of the Texas Open Meetings Act and the purpose of seeking legal advice from the General Counsel under Section 551.071 of the Open Meetings Act. Thank you very much.

(Whereupon, at 12:10 p.m., the meeting was adjourned, to reconvene this same day, Wednesday, May 23, 2007, at 2:16 p.m.)

COMMISSIONER FRIEDKIN: All right. We'll reconvene Regulations and go to Committee Item Number 3, Amendments to the Public Lands Proclamation, Mike Berger.

MR. BERGER: Good afternoon, Mr. Chairman, members. I'm Mike Berger, Director of the Wildlife Division. I want to be here today to discuss with you the proposed changes to regulations governing Public Hunting Lands for 2007 and 2008, including public comments received since the last meeting. I'll also discuss the candidate state parks proposed for Public Hunting Access and the establishment of Open Season on Public Hunting Lands.

The first of these is a housekeeping item, the Public Lands Proclamation. The Off-Highway Vehicle Fee was established to fund the purchase, development, and maintenance of off-Highway Vehicle Trails, as part of a program administered by the Department. The Department's intent with respect to the funding of this program is to rely on true offroad-vehicle enthusiasts to fund the recreational trails created for that purpose. The Department has determined that the use of mobility enhancing conveyances by disabled persons participating in activities on public lands is not consistent with the intent of the Parks and Wildlife Code and should not, therefore, be subject to the OHV Fee.

I would like to point out that we have three other similar housekeeping items that, in total, received 21 public comments, 14 were in favor, six were opposed, and one comment had no opinion. Those opposed were generally opposed to the use of public lands for hunting.

The housekeeping Item Number 2, a special access permit would be authorized to a specific state park or part of a state park for persons who have been selected for public hunting privileges. This proposed amendment is necessary in order to comply with federal requirements that oblige the Department to keep funds from the sale of permits for access to state parks separate from the funds from the sale of permits for access to wildlife management areas. This proposed amendment would acknowledge that distinction by rule.

The next two items are related to this. The second is this amendment would conform the language of this section to reflect the applicability of the section pertaining to the special access permit previously described. This is where the fees and the regulations are established concerning the application process for permits on public hunting lands. The last related item there is in the State Parks Proclamation and this does designate the fees for this special access permit. They are $75 for up to a three-day hunt period and an extended period, $125, for more than three days but usually no more than five days. As we said before, this is necessary to comply with these federal requirements to keep the funds separate from Parks and Wildlife Management Areas.

Also, today we need to adopt the 39 candidate state parks proposed for public hunting in the 2007 and 2008 season. The list of state parks were provided in the hearing booklets as Exhibit C. There are 39 of the state parks proposed this year and all were hunted in the last year. Only your approval tomorrow is necessary for this. Also, to establish an open season in order for us to conduct hunts on public hunting lands, the Commission is required to establish an open season each year for these public hunting lands. This open season would run from September 1, '07, to August 31, '08.

That concludes my presentation. I'd be happy to answer questions.

COMMISSIONER FRIEDKIN: Any questions or discussion?

(No response.)

COMMISSIONER FRIEDKIN: Okay.

MR. BERGER: Thank you.

COMMISSIONER FRIEDKIN: If there are no further questions or discussion, I'll place this item on the Thursday Commission meeting agenda for public comment and action.

Item Number 4, Deer Management Permit Rules and Trap, Transport, and Transplant Rules, Mitch Lockwood.

MR. LOCKWOOD: Good afternoon, Chairman, Commissioners. For the record, my name is Mitch Lockwood and I'm the statewide White-tailed Deer Program Leader. Today, I'll present a proposal to modify our rules for our Deer Management Permit, commonly referred to as DMP, and our Trap, Transport, and Transplant Permit, commonly referred to as the Triple T.

These proposed rule changes are intended to simplify our permitting processes and to recover the costs associated with administration and enforcement of these programs. First, I would discuss the recommended change to a rule pertaining to the DMP application. This rule currently states that changes to an approved Deer Management Plan shall be considered as a new application. This rule makes a distinction between new and renewing DMP permits because there's a difference in the fee between the two, with a new permit having a fee $400 greater than that of a renewal because there's an assumption that permit renewals require less overhead or that we're able to turn them around more quickly, but in reality permit renewals for Deer Management Permit have demanded more of our processing time because of this language right here ‑‑ because we have to spend more time on that application to make sure that no changes have been made to that previously approved DMP.

So recently, we have designed a new, much more efficient, much more user-friendly process, that would be a consistent process in how we go through and process these applications for all DMP applications, whether you're a first time applicant or you've had a DMP for the last five years. And so, therefore, we propose to simply strike this language from the reg.

Next, we recommend a change to the composition of the respective review panels. You may recall that a permit applicant may request a review of an agency decision to deny or delay permit issuance. This is true of other deer permits as well. These various review panels that have been established over the years have been phased in and there are some inconsistences as a result in the composition of those panels. It is our belief that the review panels for Triple T and DMP permits should include senior management and should be consistent with that of the Scientific Breeders' Review Panel. Therefore, we recommend that we add the Deputy Executive Director for Operations and remove the Regional Director and the White-tailed Deer Program Leader from these two review panels.

Regarding the number of deer that can be contained within a DMP, the current rule states that no more than one buck and 20 does may be detained from September 1st to January 31st. Now, including these dates in the rule is a little bit confusing because we've been operating this program to allow one to detain those same 21 deer all the way through the end of August. However, during those latter months of May, June, July, and August, they're likely to have fawns in that facility as well. So we propose to clarify this regulation by stating that at no time may a DMP facility contain more than one buck and 20 does except for the fawns who are the offspring or the products of those 21 deer.

Currently, the DMP rules state that no trapping of deer under a DMP may take place been March 2nd and August 31st of any year. This rule is misleading because it implies that you can trap deer under a DMP on March 1st, which is not the case. Since the intent of this program is for natural breeding purposes only, we do not permit the trapping of deer beyond a date when there is a high probably of trapping pregnant does.

In order to maintain the intent and the integrity of this program, we rely on our statewide breeding chronology data. We use those data to establish some trapping cutoff dates for a DMP. Those data indicate that South Texas has the latest breeding season in the state with December 14th being the last day when there is not a high probability of trapping pregnant does. Therefore, we recommend that we clarify this regulation by stating that nowhere in Texas may one trap deer after December 14 under a DMP. Now, this cutoff date will be a little bit earlier in other ecoregions of course, those ecoregions that have earlier breeding seasons. Our DMP application packet will include the cutoff dates for the respective ecoregions.

Current rules require that all adult deer within a DMP facility be ear-tagged. We have determined that this practice is not necessary. It doesn't really provide much benefit to the Department and so we propose to simplify this rule by eliminating the ear-tagging requirement. However, if this is adopted, this would not prohibit a permittee from marking the deer that are legally detained under a DMP.

Next, we propose more flexible standards for the liberation of DMP deer. Current rules require that 100 contiguous yards of fence be removed or 100 contiguous yards of gate be opened for a period of no less than 60 days to facilitate the release of DMP deer. The rules allow us to make exceptions to this 100-yard and 60-day rule, which we commonly do. We've made so many exceptions over the years that we have determined that 20 foot of opening should suffice, provided that no opening is less than ten foot wide. In other words, you can have multiple openings to meet this 20-foot requirement. We've also determined that a liberation period of no less than 30 days should suffice as well.

Finally, on this topic, our regulations also require that one remove artificial feed and water for a period of 60 days, but we propose to clarify that regulation to state that that 60-day period in which feed and water are removed must actually be during the same time that the gates are opened. In other words, it's during the liberation period. Again, we propose that be only 30 days as opposed to 60. We also would like to clarify this regulation to state that the deer shall be released into the pasture from which they were captured.

The final part of this proposal is an attempt to recover the costs associated with the administration and enforcement of these two programs. We're operating under the same philosophy that this Commission proposed and endorsed a little over a year ago when we increased the Scientific Breeders' Permit Fees. That was to recover all the costs associated with administering that program. Additionally, Parks and Wildlife Code states that the state may not incur any expense for the trapping, transporting, and transplanting of game animals and game birds until Triple T permits.

In FY '06, the Department incurred expenses nearing $121,000 for processing applications, performing site inspections, observing and enforcing compliance, and for prosecuting violations of Triple T regs. So again, about $121,000 of expense, where our revenue under Triple T for that same time period was about $13,500.

In an attempt to recover some of those costs, we propose to modify the Triple T fees. Our current fee is $180 whether the application includes a single release site or whether it includes 10, 20, however many release sites. $180 comes nowhere near covering the costs for processing and approving an application that has a single release site, much less one with multiple release sites. We have determined that it costs us approximately $750 to process and improve an application with one release site. Therefore, we propose to increase the fee of a Triple T permit to $750 per release site, again just an attempt to recover costs. We believe that this is a conservative estimate since expenses such as fuel costs and whatnot do continue to increase annually. We're basing these expenses on FY '06 figures.

Finally, we propose to modify the DMP Permit fee as well. As I mentioned to you earlier, a new DMP Permit application is $400 higher than that of a renewal. Again, if this proposal is adopted, we will have a much more efficient, more user friendly process that allows us to process all DMP applications in a consistent manner. Therefore, we propose that all DMP Permits are assessed the same fee of $1,000. This is the maximum amount allowed by statute. This would, based on our figures, would just recover the costs in the enforcement and administration of this program. Again, we're basing that on FY '06 figures which may be a conservative estimate.

We have received little public comment on this proposal. To date, we have 12 in support and 23 that oppose the DMP rule changes. We have 13 that support and 18 that oppose the Triple T rule changes. Some of those in opposition are opposed to allowing for these practices at all, stating or implying that we're too liberal in what we allow private individuals to do with a public resource. So their comments really didn't pertain to this proposal.

However, most of all the other opposing statements were almost identical to each other and actually were almost identical to a position statement that we received yesterday from Texas Deer Association, which I believe you all have received as well. In essence, Texas Deer Association supports the proposed changes that provide more flexibility, but they are opposed to the proposed fee increase.

As I mentioned to you all at the April Regulations Committee meeting, I presented these proposed changes to our White-tailed Deer Advisory Committee and to Texas Wildlife Association's Deer Management Committee last month. Our White-tailed Deer Advisory Committee is supportive of this proposal as it was presented today. TWA's Deer Management Committee also voiced no opposition to the fee increases.

Commissioners, that concludes my presentation. At this time, I'll be glad to answer any questions.

COMMISSIONER FRIEDKIN: Questions or discussion?

(No response.)

COMMISSIONER FRIEDKIN: Okay. I will place this item on the Thursday Commission meeting agenda for public comment and action. Thank you, Mitch.

MR. LOCKWOOD: Thank you.

COMMISSIONER FRIEDKIN: Item Number 5, Delegation of Rulemaking Authority Concerning State and Federal Rules in the Gulf of Mexico, Robin Riechers.

MR. RIECHERS: My name is Robin Riechers of the Coastal Fisheries Division. As indicated, I'm here to present a proposed action item for delegation of rulemaking authority in the Gulf of Mexico to the Executive Director. As instructed by General Counsel, this basically creates the express written delegation of authority in our proclamation for rules, which would allow us to create consistency when a federal rule change is made in federal waters and we wanted to implement that same rule change in state waters. We're given that authority under Section 79.002 of our Parks and Wildlife Code.

To date, we've had nine people create comments on this. Seven have agreed and two disagreed. This morning, we also received a letter from the Texas Shrimp Association, which I believe will be distributed to you later today, that also opposes the rule. Their basic opposition is that they feel like it's not necessary that the current timing of those changes can be done within the normal framework of the Commission proceedings.

That concludes my presentation, and I'd be happy to answer any questions.

COMMISSIONER FRIEDKIN: Questions or discussion?

(No response.)

COMMISSIONER FRIEDKIN: All right. Thanks, Robin. I'll place this item on the Thursday Commission meeting agenda for public comment and action.

Item six, Process for Recommending Seasons and Bag Limits for Migratory Birds, Mike and Vernon.

MR. BERGER: Good afternoon, Mr. Chairman, Commissioners. I'm Mike Berger, Director of the Wildlife Division, here with Vernon Bevill. We'd like to take this opportunity to talk to you about the process for establishing annual regulations for hunting migratory birds and the role of the federal government. We will hope to have you understand a very complex regulations process in a simple manner. We won't try to go over all of it in great detail, but just demonstrate the complexity of it and how we play into that.

The driving force for migratory bird management in this country are international and multinational treaties. Early in this century, some nations recognized that certain bird species crossed international boundaries and they were in trouble for market hunting and other reasons. They needed that protection and, therefore, the authority to regulate those birds because of their relationship with other countries is a federal responsibility.

Countries with shared resources, migratory resources, entered into a number of treaties with the United States to protect those resources and discuss their management. The first of these was a treaty with Great Britain on behalf of Canada. We also have a treaty with Mexico, one with Japan, and one with the former Soviet Union. They all provide guidance and management authority and some provide for habitat management as well. Because they're a shared resource with other states and countries, they have to be managed in accordance with federal law. The states have input into this decision process, but the ultimate process is the responsibility of the U.S. Fish and Wildlife Service.

The result of these treaties that Congress has to pass a law which institutes or enacts those treaties. Congress passed the Migratory Bird Treaty Act in 1918. Since then, it's been amended a number of times, but this offers what you would expect that many migratory bird species. It began, like I said, early this century when commercial trade and birds and their feathers were popular. This Act implements all the various treaties for the protection of these birds and stipulates protection for their habitats as well.

The key components of the Migratory Bird Treaty Act make it unlawful to hunt, kill or possess migratory birds except as permitted under regulations of the Secretary of the Interior. It authorizes the Secretary of the Interior to determine when, if at all, to allow the hunting of these birds. That means, the season is closed unless it's opened. We do the same in Texas, with our resident species. The seasons are closed unless they are opened by you. The Migratory Bird Treaty Act does not prohibit states from making their own regulations provided that those regulations are not more liberal than those approved by the Secretary.

So what you need to know is that there are various types of regulations that go through this. The basic regulations are those that change rarely or infrequently. They include firearms restrictions, like plugged guns and baiting, live decoys, non-toxic shot. Then we have annual regulations and that's what we're going to talk a little bit about today, items like season length, bag limit, frameworks for the season. Special and other regulations are those that really don't fit either one of the other two. They may change more frequently than these basic regulations and they may allow for special seasons like September teal and our special white-wing zones. These are semi-permanent frameworks that provide an opportunity outside the standard season frameworks.

So, today, we're going to focus on the special regulations that apply to Texas, particularly zones and splits for doves, as well as a quick overview of the annual cycle. I will let Vernon lead you through that.

MR. BEVILL: Thank you, Mike. For the record, I'm Vernon Bevill, Program Director for Small Game and Habitat Assessment. As you all know, Texas is a large state and we have seen fit to zone our state for both waterfowl and for doves. In the case of doves, we have three regular zones, North, Central, and South Zone. Within the South Zone, we have the special White-Wing Area, which is a sub-component of that South Zone. These zones allow us to set independent seasons for those zones within the framework and season dates and other criteria that Fish and Wildlife Service allow us to pursue as individual states.

I might add that things like the Special White-Wing Season, which is unique to Texas, we have to still work those proposals up through our Central Flyway Council, and have them approved, and moved onto the U.S. Fish and Wildlife Service Regulations Committee for their approval, and subsequent presentation to the Director of the Fish and Wildlife Service for formal approval. Within that, there are several Federal Register deadlines that have to be met along the way.

For splits, which are segments of the season themselves, states that have zones are treated a little bit different than a state that does not have zones. If you only have two zones, you can have up to three hunt periods. In other words, you can hunt doves three different times. Because Texas is the only state that has three zones, they have limited us to two splits in our season, except for the fact that that sub-component of the South Zone where the Special White-Wing Area is has its own little short independent season. Those dates that those four days in the South Zone are, however, taken away from the total number of days available to the South Zone in general for dove hunting. So the regular dove season in the South Zone is four days shorter because of the White-Wing Area.

You will also remember, I believe, that we had quite a bit of discussion several years ago about the desirability of expanding the White-Wing Zone even as far out as I-37. We ended up being able to work a proposal through the Central Flyway Council, gain concurrence from the Central Flyway Council and the other three Flyways, to get to the Service to recommend a smaller expansion of the White-Wing Area from Highway 83, as shown on this map, up toward San Antonio to the northeast. So about a fourth of the area the size of the whole area was increased and this year we will be in our third year of a five-year mandatory stay to determine the impact on mourning dove harvest from that zone expansion.

This zone line is a permanent line. We don't have the authority to change it. I might mention that zone lines in general can be tweaked every five years, but permanent zone lines, like this one and the High Plain Mallard Management Unit line, have to go back through a formal process independent of those five-year intervals.

Quickly, I will go over the annual cycle with you, which functionally started with our preliminary discussions back in November with the Commission, of possibilities for migratory bird changes, that were then moved forward to our Flyway Technical Committees at their winter meeting in December. And then, back to our Flyway Council via some conference calling in January. We brought back to you at your January meeting some discussion of some of those changes. And then, we forwarded them on to the U.S. Fish and Wildlife Service at their first Service Regulations Committee meeting in February. I am one of the two consultants for this Flyway. Each Flyway has two consultants.

So it's a very process-driven, deadline-oriented system by which we make these regulations. By the time we get to this period of the year, May, we're doing waterfowl surveys to determine the breeding population level, dove surveys for similar purposes, and those numbers will be crunched along with the data from the last year's season to look at what the harvest rates were. In late May, we're here again talking with you about those regulatory items. You have functionally your last chance to comment on them before we move forward.

In June, I attend the Service Regs Committee meeting in Washington, along with the other consultant, to discuss these proposals with them. Hopefully, we gain support of the Service and recommendations from the Service Regs Committee to their Director. July is real crunch time because we are formalizing our season proposals for Mr. Cook to sign off on at the same time that the Outdoor Annual is publishing those same proposals. Technically, the Federal Register that proposes them as an alternative is just being published. The final Federal Register for early season species will not be published this year until August 31 and dove season starts the next day. So you can't drop the ball anywhere along the way without a bad thing happening.

To kind of sum it up, we go through about nine or ten months of a very procedural-oriented process, of which we've just given you the thumbnail sketch, that requires that we follow the rules. For Texas to succeed, Texas has to work within the Central Flyway to gain support of the other Flyway states for any proposal we have; vice versa, every state is the same way. And then, we have to sell our proposal on its biological merits to the Fish and Wildlife Service for their concurrence. We'll be glad to answer any questions if you have them.

MR. COOK: I wanted to ‑‑ I appreciate your attention to this because Mr. Bevill and the wildlife guys through the years try to be very responsive to the Commission and to the constituents out there, the people who hunt, and people have a lot of ideas about migratory seasons, and bag limits, and morning hunting, and all that stuff. I wanted to appreciate Mr. Bevill and Mr. Berger going over this because it's not that we can't change. We can. We can work within the system. We've just got to anticipate it far enough ahead and be prepared, because a lot of times just an immediate bounce-back from the Feds is, well, go get some data to prove your point, or prove that we're wrong ‑‑ back to the gray trucks we go, and out in the bushes with binoculars or whatever, and five years later, maybe we have an answer for you and maybe we do not.

COMMISSIONER FRIEDKIN: And it always involves trade-offs.

MR. COOK: Yes, and through the years, the agency has had really good people who worked this process, real respected in the Flyway and across the nation, for the way we handle things. Our goal is to provide as much hunting opportunity as we believe the resource can stand. I believe that's the bottom line. The combinations of that kind of duck or that kind of dove, you know, sometimes gets us in a pretty complex situation. That's where we are.

MR. BERGER: And what we just wanted you to understand was that it is a very complex process. We just went through the early season. The late season may be a little more complex than that because it involves more species, but just so you'd understand how complex it is and what challenges we have with it. Yes, sir?

COMMISSIONER MONTGOMERY: I just wanted to say that over the years I've been on the Commission, I've had a sense of how complex it is. I've never seen the full program. I think you all do a very nice job of presenting alternatives at the appropriate junctures that do give a lot of flexibility and listen to the constituents. That's backed up by some sort of constituent input. So I compliment you on doing that because this is clearly a high wire act. You've got to run every year, and keep this on schedule, and do it right.

MR. BEVILL: When we start getting background noise from constituents that there's an interest in some other change or some other wrinkle, we've always discussed those with our Game Bird Advisory Board. Usually if it was a significant enough interest that we determined, we then go out and do some type of mail survey to gain a kind of better, broader-brush review from our hunting constituency of the levels of interest, and this option versus that option. So when we come back to you all to talk about regulatory change, we've not just looked at one locale in a particular zone, we've looked at that zone-wide hunter base and tested the parameters of change with them to see if they fit pretty well.

When it requires us going to the Fish and Wildlife Service for clear support up through our Flyway Council, one good example was our teal season. Some years ago, we had interest in the Eagle Lake area in expanding the teal season. We started looking at the numbers and decided that, yes, the teal population could handle ‑‑ so then we started working that through our Flyway. Come to find out, five or six states in the Flyway wanted some similar option. Mississippi Flyway wanted some similar option. Atlanta Flyway wanted some similar option. So by the time that we got all this vested interest in a longer teal season, it eventually took us four years of working with the Flyways and the Fish and Wildlife Service to implement the 16-day teal season. That's just how it works.

MR. COOK: One of the classic examples ‑‑ and I don't want to drag this out any more ‑‑ but one of the classic examples on dove hunting. We, almost every year ‑‑ correct me if I'm wrong ‑‑ get someone who suggests that we should only dove hunt in the afternoon or something. The thought-process usually is that that will give us that many more afternoons we can take those ‑‑ not so.

MR. BEVILL: Right.

MR. COOK: We don't get twice as many afternoons. The Commission previously ‑‑ this is where we would look to you for the guidance as we go through the years in these kind of things ‑‑ the Commission's option has been to say, Look, we can allow all day hunting and we opt to do that. If a landowner chooses to hunt only in mornings, fine; he can make that decision, or only in the afternoons, fine; he can make that decision. Now, that's been the philosophy that we've operated on, on most of these; give as much option and let the landowner decide. It doesn't always make everybody happy either, but that's where we've been. So if there's other guidance, we would welcome it at any time.

COMMISSIONER BIVINS: Mr. Chairman, if it's possible to provide the Commissioners with a copy of this PowerPoint presentation, I'd like to have that.

COMMISSIONER FITZSIMONS: We can do that.

MR. COOK: I would even recommend that we go back to maybe the first draft of this presentation which has a little more detail in it. I think you'd find it interesting.

COMMISSIONER BIVINS: Great.

MR. BERGER: We would have removed a lot of the minutiae.

(Simultaneous discussion.)

COMMISSIONER FRIEDKIN: We appreciate it. Thank you very much.

VOICE: Thank you.

COMMISSIONER FRIEDKIN: I think that concludes the business of this Committee. Thank you.

COMMISSIONER RAMOS: Thank you, Commissioner.

Mr. Cook, is there any other business to bring before this Committee?

MR. COOK: There is not.

COMMISSIONER RAMOS: If not, we're adjourned.

(Whereupon, at 2:51 p.m., the meeting was adjourned.)

CERTIFICATE

MEETING OF: Texas Parks and Wildlife Commission, Regulations Committee

LOCATION: Austin, Texas

DATE: May 23, 2007

I do hereby certify that the foregoing pages, numbers 1 through 64, 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.

6/05/07
(Transcriber) (Date)
On the Record Reporting, Inc.
3307 Northland, Suite 315
Austin, Texas 78731