Texas Parks and Wildlife Commission
Regulations Committee Meeting

Jan. 25, 2006

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

BE IT REMEMBERED, that heretofore on the 25th day of January, 2006, 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:

P R O C E E D I N G S

COMMISSIONER FITZSIMONS: I convene the Regulations Committee. The first order of business is the approval of previous committee meeting minutes, which have been distributed. Motion for approval?

COMMISSIONER FRIEDKIN: So moved.

COMMISSIONER HOLMES: Second.

COMMISSIONER FITZSIMONS: Moved by Friedkin, second by Holmes.

COMMISSIONER MONTGOMERY: Can I give you a couple of corrections?

COMMISSIONER FITZSIMONS: Yes.

COMMISSIONER MONTGOMERY: A couple words are wrong. On page 90, line 23, the word "their" should be "them." On page —

COMMISSIONER FITZSIMONS: You doing this for the Carol Dinkins trophy?

COMMISSIONER MONTGOMERY: I'm doing this at the peril of winning that award, so I apologize. Well, I'm trying to sound less unintelligent by getting my words correct here. On page 104, line 15, the word "each" should be "have." On page 105, line 10, the word "of" was left out of the end of the sentence. Thank you. I'm sorry.

COMMISSIONER FITZSIMONS: Very good. Any of those —

COMMISSIONER HOLMES: We accept those.

COMMISSIONER FITZSIMONS: Any of those substantive?

(No response.)

COMMISSIONER FITZSIMONS: None of those were substantive.

COMMISSIONER MONTGOMERY: Some of them were substantive.

COMMISSIONER PARKER: I'm amazed that you could even understand me.

COMMISSIONER MONTGOMERY: I changed the meaning of everything you said, John.

COMMISSIONER FITZSIMONS: Well, I'll tell you one thing. When I read through the minutes, the one thing I always notice is the stenographer's notation, "All taking at once," which I have seen more than once. With those changes, do I have a motion for approval.

COMMISSIONER BROWN: So moved.

COMMISSIONER BIVINS: Second.

COMMISSIONER FITZSIMONS: Moved by Brown, second by Bivins. All in favor, say, Aye.

(A chorus of ayes.)

COMMISSIONER FITZSIMONS: Any opposed?

(No response.)

COMMISSIONER FITZSIMONS: Hearing none, motion carries. Number 1, land and water update, Mr. Cook.

MR. COOK: Thank you, sir. Thirty years of the Coastal Fisheries Division Conference was held on November 17 and 18. It was attended by over 200 individuals representing a broad range of coastal interests in Texas. The power of long-term data monitoring for ecosystem management was showcased by summarizing key information from one of the longest marine resource data sets in the world.

At the symposium, the division explored options and sought input on how to conduct operations for the next 30 years, and how to link that with our department operating plan, and the land and water plan.

TPW Commissioner Chairman Joseph Fitzsimons, Commissioner Ned Holmes, Commissioner John Parker, and former Commissioner Kelly Rising were in attendance. Distinguished marine biologist Sylvia Earl was a keynote speaker on Friday morning. I think everybody agreed that it was a worthwhile conference and one that we all kind of set the stage, as Doc says, for the next 30 years. Thank you.

COMMISSIONER FITZSIMONS: I want to congratulate you, Doc, on pulling together what was a great symposium.

For the rest of you commissioners, I'll tell you, if ever someone makes the mistake of saying, How much data do you really have on these coastal and water issues, boy, they walked right into the trap because it's incredible. People from all over the country are in agreement that Texas has the best data set on these Gulf issues. Nobody comes close in the other states. They're modeling their programs on ours.

COMMISSIONER BROWN: Just to correct, I was also there for one day.

MR. COOK: Okay.

COMMISSIONER FITZSIMONS: Do you have that down now? That's an important change.

COMMISSIONER BROWN: It's very significant.

COMMISSIONER FITZSIMONS: Weren't we impressed?

COMMISSIONER BROWN: Yes, very much so.

COMMISSIONER FITZSIMONS: I mean, it's amazing how much data.

COMMISSIONER BROWN: No, it was good.

COMMISSIONER FITZSIMONS: I guess it's time to apply some of that data to some policy, to some policy making.

All right. Next, committee item number 2, 2006-2007 statewide hunting and fishing proclamation and alligator proclamation, permission to publish, first up, Robin Riechers.

MR. RIECHERS: Mr. Chairman and Commissioners, my name is Robin Riechers, for the record. I'm science and policy director of Coastal Fisheries Division. Today, I'll be presenting to you the 2006-2007 statewide hunting and fishing proclamation proposals from Coastal Fisheries.

In starting our scoping process, we held eight different workshops along the Texas coast, as well as, of course, we've received E-mails, and mails, and comments from other people outlining the proposals that we bring before you today. Our first proposal is to prohibit the take of largetooth sawfish.

As you remember, smalltooth sawfish has recently been listed under an endangered species act and is protected by Chapter 68 of our code. In order to further protect smalltooth sawfish, we want to also propose prohibiting the take of largetooth sawfish. You can tell by the picture with the two sets of teeth, it would be pretty hard to tell the difference between those if you had them on a hook and line. So we are recommending that we go forward with that proposal. In regards to comments from the public, we had 47 people comment on this and all were in favor of the proposal.

Our next proposal is in regards to a tagging requirement. It would remove the requirement for a tarpon tag. Currently, this fish has a one-fish bag limit with a minimum size limit set at 80 inches and you must tag the fish to bring it in. Those tags are sold each year to individuals who want them. There's been 15 sold on average for the last three years. So that is one of the tagging requirements we would propose to move.

By setting that bag limit at 80 inches, we basically ensure that only state record type of fish are being brought in. This really isn't a fishery that brings in a lot of fish anyhow, but if they were to catch a state record, and most of those folks, the guides who fish for those would know that, they would still have the opportunity to bring it in.

Obviously, if we move that state record, it is our intent we'd be back here to you upping that length class as we go. So we still want to afford great protection to those very unique fish and certainly fish we'd want to protect.

Our scoping process, we had 19 people speak in favor of that and five were in opposition. Now, I might tell you, some of the folks in opposition to that one were a little bit concerned that in somehow we're diminishing the status of this fish by taking the tag off. So they weren't really opposed to the proposal. They were just afraid that some way we were going to lose some fish by doing this. It's not our belief that we will.

Along those same lines, currently we have a 14- to 30-inch minimum and maximum size limit on black drum and we allow five fish per day. We haven't been able to take state record fish since we put the maximum size limit on at 30 inches. We would propose that we have a similar proposal, which would allow one fish over 52 inches per day, which would allow for the take of a state record if someone chose to do so. In that regard, we had 14 people speak in favor and nine were in opposition to this proposal.

COMMISSIONER HOLMES: The one fish would be within the five-fish bag limit though?

MR. RIECHERS: Yes, the one fish is within the five-fish bag limit, yes, sir.

The next proposal deals with southern flounder and what we are proposing to do is reduce the recreational flounder possession limit and make it equal to the bag limit. Currently, it's 20 fish. The bag limit is ten fish per person. Many of these trips go past midnight so they're allowed basically the double bag limit.

So by bringing this bag limit down, we will conserve some fish. We will redistribute some of that catch amongst those recreational anglers. We think it will also help to eliminate some issues that we believe we have in regards to some of these recreational fish entering the commercial market because they are allowed quite a large take. So we still have that proposal on the table.

For that proposal, we actually had 20 people in favor and 27 spoke against. Now, what I will add about the 27 in this case is eleven of those people actually spoke in favor of more stringent rules. They were opposed to this one, but wanted something more stringent than we have on the table at this time. So if you move those people over, it's actually 23, if you assumed they would speak in favor of it, were for it, and 16 would be against it if that were the case.

Tripletail is our last proposal. We are proposing to add that to the gamefish list. We would establish the minimum size limit of 17 inches, and a bag limit of three fish, and a possession limit of six fish. As we indicated to you last time, this is similar to rules that are in Florida and Alabama. These fish reach sexual maturity around 17 inches so we believe this will further protect those until the time at first spawn and basically increase the spawning stockpile mass. And so that proposal is before you as well. We had 37 people speak in favor of this. Zero were in opposition of this.

The next two items which are contained on this slide are actually the scoping issues that we are proposing not to go forward with at this time. The first one was dealing with the red drum tag system, whereby we were trying to find a way to do away with that tag system, much like we did with tarpon.

We proposed putting one 28-inch fish within the three-fish bag and possibly adding a fourth fish that would be greater than 28 inches. As you can tell, many people were opposed to this as compared to supporting it. Mostly the opposition — and I guess this is really good news —- is that they have a system, they think it works for them, they've seen the conservation it's put on the ground, and they're fearful that anything we do might change that conservation.

In addition to that, the reason we're proposing to pull it from the proposal list at this time, as Mr. Cook indicated this morning, we are looking again comprehensively at our license structure, and how we do tags, and so forth. This might better fit in that discussion instead of coastal doing it kind of on our own at this point in time. So we look forward to being involved in that discussion for this particular red drum tag as well.

Our second proposal that we are removing from consideration, if you agree, at this time, which would allow guides to retain red drum and king mackerel bag limits when they're on a for-hire trip. Currently, no one in the state on a for-hire trip can maintain a bag limit. When you look at the red drum issue, with the other red drum scoping issue coming off the table, we felt that it should come off the table as well at this time.

Also, when you look at king mackerel bag limits, currently there's discussion in the federal waters that actually might reduce the TAC associated or total allowable catch, that we receive here off of Texas in Gulf waters. With that, we wouldn't want to do anything at this time that might actually increase the catches of fish off of Texas at this time.

So those two proposals had come to us through our August public hearing meeting from two guide associations. We did want to scope them, but given the opposition and those other reasons, we would suggest that we not go forward with them at this time.

Last week, in Corpus Christi, our Coastal Resources Advisory Committee met and currently they are in concurrence with the staff recommendations as presented to you today. With that, I'd be happy to answer any questions if there are any.

COMMISSIONER FITZSIMONS: Questions for Robin?

How was that Coastal Resources Advisory Committee meeting? Did it go well?

MR. RIECHERS: It was a good meeting. Of course, we got to go down to the Harte Institute and tour that as well. It's an impressive place and we had a real productive meeting.

COMMISSIONER FITZSIMONS: Great. Thank you, Robin.

Next up, Ken Kurzawski, freshwater inland fishery, and Phil Durocher.

MR. KURZAWSKI: Good afternoon, Commissioners. My name is Ken Kurzawski of Inland Fisheries Division. This afternoon, I'm going to go over some of the regulation proposals we are continuing to work on, take to public hearings.

The first one is Marine Creek Lake, a 250-acre reservoir in Tarrant County. We're proposing to change the largemouth bass limits there. It currently has a 14-inch minimum limit and we're proposing to go to an 18-inch minimum length limit and with the retained five-fish bag.

Our goal there is to protect the operation world record bass fingerlings that we're stocking into this reservoir. We have a research project going on. This and five other smaller reservoirs are receiving stockings of those fish. We would like to evaluate the growth of those fish in these reservoirs and we'd like to protect them from harvest for a good period of time so we could get that good evaluation on growth across the six reservoirs that we're looking at.

The next one is proposing to add Kinney County to the list of bait fish exceptions, out in West Texas. There we have 17 counties where the use of certain bait fishes is restricted to species already in the rivershed, the Pecos River Watershed. For example, you can still use carp and goldfish and those things that are already there.

The goal here is to benefit the protection of the Devil's River minnow, which is found in Kinney County, and also the pupfish species, the endangered pupfish species in those counties. The Devil's River minnow is found in Val Verde and Kinney County. Val Verde is already on the list. So adding Kinney County there will add a little bit more protection.

We had a couple other proposals that we discussed last time. One of them was on the Colorado City Reservoir. We were talking about liberalizing the limits for red drum there. Subsequent sampling there has shown that there are very few, if any, red drum left in there. So liberalizing them wouldn't have much impact. The current limit of anglers, they're lucky enough to even catch one and they'll be able to harvest those fish.

The other one was on Mountain Creek Lake in the Dallas-Fort Worth area. We were talking about changing our regulations to align with the catch-and-release regulations that the Department of Health Services has. Further investigation of that shows that those regulations do have an impact of law for us. So I think just the way we present those in the Outdoor Annual will solve our problem with that.

The other issue that came up at the last meeting was on allowing bowfishing for catfish. We thought we'd take this opportunity to give you a little information on catfish in Texas. Since we talk a lot about bass and other things, we don't get the opportunity to talk about catfish, but they are the second most sought after fish by Texas anglers.

It's basically a harvest-oriented fishing, but there's increasing interest there in quality and trophy fisheries. Certainly a lot of that was spurred by the harvest of Splash that was caught a few years ago on Lake Texoma. People are going out around the country seeking those larger fish, blue cats, flathead catfish, and it's sort of something that's developing over time.

Recently, there was a symposium on catfish, the first one put on, to bring the experts around the country to take a look at what's happening in catfish around the country. When we look at catfish in Texas, channels and blue catfish are the only gamefish that are allowed to be harvested by methods other than pole and line. We allow some of those traditional methods that have always been used from jug lines, throw lines, and trout lines.

Also, they can be commercially harvested, which is unique for gamefish in both saltwater and freshwater. What the gamefish status really means is that those are species, except for channels and blues, that can be just harvested with pole and line. They're a recreational fish that we allow, we think the best benefit is to be caught by pole and line. So that's what the gamefish designation really does here.

We also have — about the commercial harvest of catfish, there are some counties that are legislatively mandated where you can sell those. They're mostly East Texas and we also have some concerns about that. If we're over there stocking catfish to bring back some populations and then where people are allowed to commercially harvest them. That's, as I said, a legislative thing. It's not something we can address at this time.

When we evaluate catfish populations, we use the data we collect from our routine monitoring, mainly gill nets. That information we use to try and set some length limits, basically to protect the breeding population. We try to look at those populations, model them, and at least protect 50 percent of the population, or when a fish grows to a certain size, where 50 percent of that population would be breeding and mature.

We also try to set some bag limits there to distribute harvests among as many anglers as possible. That's what we do in our community fishing lakes where we maintain the 12-inch minimum length limit, but we reduce the bag to five, and we also limit the means and methods there to just pole and line. We don't allow the trout lines, et cetera, there to distribute that harvest where we're stocking catchable-size fish and trying to distribute those to as many anglers as possible.

One thing that came out of that recent symposium, and the thing that we've recognize for years, is that catfish are difficult critters to sample compared to some of the other ones we deal with, especially those blues and flathead catfish, especially the large ones. They're difficult to get a handle on in populations.

Even though, by regulation, we treat blues and channels pretty similarly, they are different species and they do react differently, different growth patterns, different maturation. Blues are lot more like flatheads, where they attain those large sizes. So that's something we keep in consideration.

Because of that, we've had some research ongoing over the last few years. We had an extensive research project on Lake Livingston last year, which has a good population of catfish, trying out and researching various sampling methods for catfish to try and refine our techniques to allow us to get better information there. Also, we've had a research project to improve our aging techniques, which was successful to improve our data collected there.

So that brings us to the petition that we received to allow the harvest of catfish by bowfishing. This was made by the Texas Bowfishing Association. The Commission requested the staff investigate this.

Since that time, we've been gathering public comment on it, since the last Commission meeting. As we anticipated, since we've looked at this topic in the past, there were strongly held opinions on both sides of the issue among the public. Among those for, they don't believe that the harvest will cause any damage to the catfish populations. There's certainly a desire there to harvest some catfish for eating and expand the sport, maybe bring more people into it. Also among these certain percentage of them, there is some support for additional limits off the current 12- to 25-inch limit for channel and blue catfish.

For those people weighing in against this proposal, bow and arrow to them is just not an acceptable method for harvesting a gamefish. They believe, as our regulations state, that those should be mainly harvested by pole and line. They're also concerned about those impacts on big catfish. As we said, there's been more interest in harvesting or fishing for some of those big blues and flatheads and others and there's some concerns about that among anglers.

Finally, one of the things that was mentioned by a number of them is the precedent it sets for other gamefish. Would we allow, or would we be opening up to allow, other types of gamefish to be harvested by other means other than the pole and line?

So to bring us to what we have, the consideration of this petition, the Commission has a couple of options. You could choose to deny the petition. That means the regulations would remain as they are. The catfish wouldn't be allowed to be harvested by bow and arrow. Trout lines would still be, throw lines and jug lines would still be illegal means and methods. If you choose to initiate rulemaking for that, we would include some sort of a proposed regulation to allow this in the statewide hunting and fishing proclamation. That would allow that to be included for public comment at the public hearings that are scheduled here in February and March.

So that's all the information I have for you today. Do you have any questions?

COMMISSIONER BROWN: What is the likelihood that a trophy catfish is going to be on the surface to allow a bowhunter to shoot it?

MR. KURZAWSKI: Well, from the comments we've received —

COMMISSIONER BROWN: I mean, I don't know anything about bowfishing.

MR. KURZAWSKI: Yes, I guess they are available for bow anglers to take. That would be a possibility. They do see these fish when they're out there.

MR. DUROCHER: Certain times of year, they're available.

COMMISSIONER BROWN: Okay.

MR. DUROCHER: I mean, they must be seeing them or they wouldn't be asking for this.

COMMISSIONER HOLMES: It's a bottom feeder.

MR. DUROCHER: Yes, they come up at night.

COMMISSIONER HOLT: I was going to say, that would be night.

COMMISSIONER BROWN: They would come out at night?

MR. DUROCHER: Yes, bowfishermen are out at night.

COMMISSIONER BROWN: Oh, okay.

COMMISSIONER PARKER: May I ask a question about that?

COMMISSIONER FITZSIMONS: Yes.

COMMISSIONER PARKER: What about on spring days, or spring nights, in the spring of the year, with the use of chum, how many of those larger catfish can you get up by chumming?

MR. KURZAWSKI: Well, that's an accepted method for people fishing for pole and line. They'll bait an area and it's a successful way to bring fish into an area. That could be used.

COMMISSIONER PARKER: You've seen them come up at the top?

MR. KURZAWSKI: If it's in the shallower water, right.

COMMISSIONER PARKER: Let me ask you question. What is the number, the headcount, of the bow catfishing association, or whatever it's called?

MR. KURZAWSKI: In some of the local Texas bowfishing associations, they have about 75 members.

COMMISSIONER PARKER: Yes, I think up on their website, it's 65.

MR. KURZAWSKI: Yes. You know, organizations are always a smaller subset of the number of people that actually practice a sport. Unfortunately, we, or any other state, don't really have good information on the number of people that bowfish.

I guess, you can make an assumption. We frequently do surveys of our licensed anglers. We ask them questions on species preference. If you kind of infer that these people would be saying carp or something else would be their preferred species, those numbers never get over a percent where we can track them.

COMMISSIONER PARKER: In the case of Splash, she was taken on a hook and a line.

MR. KURZAWSKI: Correct.

COMMISSIONER PARKER: She was put in the fish hatchery in Athens; she survived a while. Maybe she was just so big that her longevity had run out. I understand she died of natural causes. If somebody takes a catfish with a bow and arrow, there's not going to be a possibility that a fish can —

MR. KURZAWSKI: No, that's a —

COMMISSIONER PARKER: That's the end of it?

MR. KURZAWSKI: Right.

COMMISSIONER PARKER: He goes right to the frying pan?

MR. KURZAWSKI: Right. We do have records. You know, we have pole and line records and we have unrestricted records that would be a record in that category that would go in with the trout lines and things like that.

COMMISSIONER PARKER: Yes.

COMMISSIONER MONTGOMERY: Bob, a question. Why is this a petition for rulemaking? I thought when we raised it, it just was something we'd modify and go float along with the other regulatory changes. Is there a reason why we're dealing with this as a petition versus just a modification of the procedural things we're doing?

MR. COOK: Well, I think it's regarding to deal with both.

MR. DUROCHER: Well, we — for the record, I'm Phil Durocher, the director of Inland Fisheries — we did get a letter from the bowfishing association with a petition for rulemaking. It happened not long after we had this discussion.

COMMISSIONER MONTGOMERY: Okay.

MR. DUROCHER: We have to take some action on that petition.

COMMISSIONER MONTGOMERY: Fair enough. Does it make it more difficult to do it that way than if we just make it part of the regular regulatory review that we're doing anyway, because we don't do a petition for every regulatory change we're considering? I know we do get those petitions.

MR. DUROCHER: If it comes from the public, if we get a petition from the public, my understanding is —

Ann, please correct me if I'm wrong — we have ten days to make some kind of judgment on whether or not we should go with that petition or not. We send that to the Commission, a staff recommendation to the Commission.

COMMISSIONER MONTGOMERY: Right.

MR. DUROCHER: If we don't hear from the Commission, then we deny the recommendation. If the Commission asks us to take it further, to say, for instance, public hearings, then that would be the disposition of that petition. That's where we are now. We need to know whether we want to deny this petition or continue it in the process, with some sort of rule change.

MR. KURZAWSKI: At this time, it actually makes it easier because we are doing our statewide public hearings.

COMMISSIONER MONTGOMERY: Okay, I understand.

MR. KURZAWSKI: So that's part of that document.

COMMISSIONER MONTGOMERY: I just wondered whether it was putting this issue through a more difficult hoops than the others by making it a petition or if it's really not.

MR. DUROCHER: Normally, we will deal with these petitions through Mr. Cook and the Commission, but since we were asked by the Commission to review this, we put it as one of the items.

COMMISSIONER MONTGOMERY: I just don't know the ins and outs of the petition versus not petition.

MR. COOK: We have to respond to it one way or the other, the petition. If we want to proceed here, the best way to proceed is to initiate rulemaking.

COMMISSIONER HOLMES: If we proceed with initiating rulemaking, that doesn't mean that any final decision has been taken?

MR. DUROCHER: No, the final decision is made in April at the public hearing.

COMMISSIONER HOLMES: And so all we're doing is still continuing to gather information and develop rules that would relate to it.

MR. DUROCHER: Yes.

COMMISSIONER PARKER: In other words, what you're saying is this will go out for public comment?

MR. KURZAWSKI: Correct.

MR. DUROCHER: We'll make it part of the statewide hunting and fishing proclamation. If that's the route the Commission chooses, then we have to decide what we want that rule to be. Just allowing the bowfishing for catfish would open up all the species to bowfishing and at their current size and bag limit. Is that appropriate?

COMMISSIONER PARKER: So how are you going to tell if that is an old flathead or if that's just a larger blue cat?

MR. DUROCHER: We have rules for flatheads that are different than blues.

COMMISSIONER PARKER: But they're not going to be able to know that until they drag it up in a dying state.

MR. DUROCHER: That's one of our concerns.

COMMISSIONER PARKER: You know, I tell you that there's not anybody in East Texas or South Louisiana that can tell a blue from a yellow cat when she's three-foot underwater. I didn't get any flak on that. I generally get a bunch of elegant phrases.

COMMISSIONER FITZSIMONS: We're saving ourselves.

COMMISSIONER HOLMES: I don't think anybody disagreed with him, but okay.

COMMISSIONER BROWN: We can disagree with it.

(All talking at once.)

MR. KURZAWSKI: We currently, at least per our other regulations, we are treating flatheads differently from channels and blues. We have a different size and bag limit and they are included with the trout lines and throw lines methods.

COMMISSIONER PARKER: That's right.

MR. KURZAWSKI: They're just throwing lines, 18 inches, minimum five fish bag. So we kind of recognize that there.

COMMISSIONER PARKER: When they draw that bow back, they don't know what they're shooting at.

COMMISSIONER HOLMES: It's still a five-fish limit though?

MR. DUROCHER: For flatheads.

MR. KURZAWSKI: For flatheads. For catfish, it's 12 inches and 25 fish statewide.

MR. DUROCHER: For channel cats and blue cats, it's 25.

COMMISSIONER PARKER: They have a right to shoot them?

MR. KURZAWSKI: Yes.

MR. DUROCHER: It's just the numbers.

MR. KURZAWSKI: Yes.

COMMISSIONER HOLT: It seems to me, we ought to go at least the next round. One of our jobs is to open up looking at ways that people can participate.

COMMISSIONER FITZSIMONS: Look at ideas, and really, at the end of the day, it's up to them to make the call.

VOICE: Right.

COMMISSIONER MONTGOMERY: If the Commission does proceed, I would hope that you all could frame this a little bit also. We raised the issue when we brought this up of sort of scientific basis for considering these regulations; frame it in some kind of quantitative manner, till we have the qualitative framing of the issues. But, you know, the 65 people in the bowfishing association versus however many anglers versus a state this size with some significant number of catfish in it. I think some of this, in my mind, boils down to — will this have any impact at all on the species period, no matter what we do?

MR. DUROCHER: Well, that was —

COMMISSIONER MONTGOMERY: If so, what is the impact?

MR. DUROCHER: That was the concern we had. We can ask that question on just about every gamefish that we have. Would bowfishing for black bass have an impact on a resource? I can't answer that.

COMMISSIONER MONTGOMERY: Well, I only raised it on one. So I'm only prepared to deal with it on one at this time. I thought that was the theme and the basis for how we were approaching regulations. I'd appreciate it if we could frame it in that context and approach the constituents with that sort of framing because that's been the philosophy behind how I think we've approached most of the regulations that we've undertaken.

MR. DUROCHER: What regulation do you want us to go with? First of all, if it was our choice, we would prefer not to have flatheads included in this because flatheads are a different species. They're not near as prolific. You know, they're treated differently. So we would write the rules strictly to allow the take of blue and channel catfish.

We have a regulation in place in a tail race below Livingston when we had this issue of people really overharvesting big blues. The regulation there is, I think, ten per day, 18 inches or larger, no more than two over 24 inches, both for blues and channels.

COMMISSIONER MONTGOMERY: I, for one, don't want to pretend to be an expert and try to design these regulations.

MR. DUROCHER: I'm trying, I want to keep it simple.

COMMISSIONER FITZSIMONS: I think Commissioner Holt made a good point. We're just putting this out for comment. Correct? So you could make any of those changes.

MR. DUROCHER: You can't make it more restrictive. If we set it now at a 25-fish, twelve-inch bag limit, when we come back in April, we can't make it more restrictive.

COMMISSIONER FITZSIMONS: or reject it all together.

MR. DUROCHER: We reject it all together, but we can't make it — we can make it less restrictive. If we start with something more restrictive and then in April we want to do something less restrictive, we can do that.

COMMISSIONER HOLMES: When you come back in April, we can say, okay, blue and channel, but we're going to reject flathead. Right?

COMMISSIONER FITZSIMONS: You can reject flathead outright rather than making it more restrictive.

COMMISSIONER HOLMES: Yes, but it's not all or none on all of them if we reject flathead?

COMMISSIONER FITZSIMONS: Right.

COMMISSIONER HOLMES: I'd like to see the data that you pull together.

COMMISSIONER PARKER: Let me ask you this.

MR. DUROCHER: It's going to be public comment is what it's going to be. Yes.

COMMISSIONER PARKER: If I remember flathead, I mean, there is, what did you say, five a day?

MR. DUROCHER: Five a day, 18-inch minimum.

MR. COOK: Wouldn't this just be part of the regular bag if they take them this way or they take them another way?

COMMISSIONER MONTGOMERY: That's where I'm having trouble.

COMMISSIONER HOLT: That's why I'm having a hard time understanding it.

COMMISSIONER MONTGOMERY: That's where I'm having trouble, does it need to be any different from the regular bag?

MR. COOK: Or part of the regular bag.

COMMISSIONER MONTGOMERY: Yes, part of the regular bag.

MR. COOK: This is just a method that can be used —

VOICE: Right.

MR. COOK: If I'm hearing right, this is just a method that could be used to take channel cat and what I call yellow cat —

VOICE: Fish.

VOICE: Catfish.

MR. COOK: — but not the one species that you're referring to.

MR. DUROCHER: Flatheads, which is just the yellow cats.

MR. COOK: The yellow.

MR. DUROCHER: That's the one that's treated differently.

COMMISSIONER MONTGOMERY: What can anglers do with yellow cats?

MR. DUROCHER: Five a day, 18 inches or better, and no —

MR. KURZAWSKI: Just pole and line.

MR. DUROCHER: — pole and line only.

MR. KURZAWSKI: You can't catch them with trout lines.

COMMISSIONER MONTGOMERY: The reason for differentiating between one versus the other, again, prolific?

MR. DUROCHER: They're not near as prolific. We don't find near as many flatheads as we do. They're a unique fish. The fishermen that fish for flatheads are normally a different group than the blue and channel catfish fishermen.

COMMISSIONER MONTGOMERY: Under that argument, do we need to restrict fishing for flatheads though?

MR. DUROCHER: Well, you do.

COMMISSIONER MONTGOMERY: But I mean more than we do.

COMMISSIONER FITZSIMONS: I think that's his point. You either do it now on what you publish or you reject it outright in April.

MR. DUROCHER: That's what I recommended, that we not include it in the rule that we put in the register.

COMMISSIONER MONTGOMERY: Oh, I see.

MR. DUROCHER: We do not include flatheads. We include only blues and channels to go to comment for. So flatheads are off the table from the initial.

COMMISSIONER MONTGOMERY: If we could see data and discuss that further?

MR. DUROCHER: Right.

COMMISSIONER MONTGOMERY: Okay.

COMMISSIONER HOLMES: I still don't quite understand that. Flatheads are restricted from taking them by trout line?

MR. DUROCHER: Uh-huh.

COMMISSIONER HOLMES: They just don't ever hit a trout line?

MR. DUROCHER: Oh, no, yes.

COMMISSIONER HOLT: You have to let them go if they're still alive.

COMMISSIONER HOLMES: And they check them frequently enough to where it works?

MR. DUROCHER: But you can release them.

COMMISSIONER HOLT: My issue is kind of maybe a little different. I'm a fisherman. I'm out there. I can catch five flatheads in an evening or whatever, but for some reason we're going to restrict people from shooting five of them? I mean, I don't know if I understand why you would restrict them from shooting them but not restrict them from catching them. They're not catch and release, right? They're catching them, and taking them home, and cooking them.

MR. DUROCHER: Well, there's a lot of catch and release that goes on now with catfish fisherman. That's one of the points.

COMMISSIONER HOLT: Okay.

MR. DUROCHER: That fishing is changing from what we call a maximum sustained yield, pounds of fish fishery into one of more quality.

COMMISSIONER HOLT: Right.

MR. DUROCHER: There's a lot more people that are fishing for quality of fish that are releasing these larger fish.

COMMISSIONER FITZSIMONS: But they can still keep five?

MR. DUROCHER: Yes, they can.

COMMISSIONER FITZSIMONS: That's his point.

COMMISSIONER HOLT: Yes, my suggestion would be if you've got a problem with flatheads, then you change the regulation for the people fishing for them, too.

MR. DUROCHER: Right.

COMMISSIONER MONTGOMERY: The numbers are with the anglers, not with the bowfishermen.

COMMISSIONER HOLT: Yes, right.

COMMISSIONER MONTGOMERY: So for species the way to deal with it is with the angling. It just seems —

MR. DUROCHER: We don't know what the susceptibility is. They may be much more susceptible to bowfishing at certain times of year, in the evening —

COMMISSIONER PARKER: Absolutely.

MR. DUROCHER: — than they are to rod and reel fishing. That could have another — we just don't know.

COMMISSIONER HOLT: Yes, that's another issue, yes. We don't have the data.

COMMISSIONER PARKER: Certain times of the year —

COMMISSIONER MONTGOMERY: Yes.

COMMISSIONER PARKER: — the evening.

COMMISSIONER MONTGOMERY: Yes.

COMMISSIONER HOLMES: I don't know. I'm having a lot of trouble with that. I mean, I'm having a hard time making a distinction between taking five one way or taking five another way.

COMMISSIONER FITZSIMONS: If you leave it in, at five, but the point is — public comment in April, you either take flathead out or you accept it as published —

COMMISSIONER HOLMES: Right.

COMMISSIONER FITZSIMONS: — but you can't make it more restrictive.

MR. DUROCHER: So what we're going to publish is —

COMMISSIONER FITZSIMONS: But you wouldn't make it more restrictive, would you?

COMMISSIONER HOLT: Why wouldn't you just cancel it?

COMMISSIONER HOLMES: I mean, maybe you make it more restrictive by making it three, or two, or one, or whatever it is.

COMMISSIONER FITZSIMONS: But you can't. That's the point. Once you publish, it's either —

COMMISSIONER HOLMES: But why not? I mean, why take it down now rather than later?

COMMISSIONER FITZSIMONS: I agree. It makes sense to me to leave it there.

MR. DUROCHER: So leave flatheads in the mix?

COMMISSIONER HOLT: Yes.

MR. DUROCHER: So what we're going to do is we're going to, right under bowfishing, where it says, "Bowfishing for non-gamefish only," we're going to say, "Bowfishing for non-gamefish, channel, blue, and flathead catfish" is allowed?

COMMISSIONER FITZSIMONS: The people that want this are taking quite a responsibility.

COMMISSIONER BROWN: That's right. They'd better be right, I guess, when they shoot at that.

COMMISSIONER FITZSIMONS: You'd better be right when you pull the trigger, too. So I just don't see —

COMMISSIONER HOLMES: Well, think about duck hunters.

COMMISSIONER FITZSIMONS: Yes, you'd better be right on that. No kidding.

(All talking at once.)

COMMISSIONER FITZSIMONS: It's hard to figure it out sometimes.

COMMISSIONER MONTGOMERY: We have size restrictions on antlers. At 100-200 yards, they can judge 13 inches. So it's not —

COMMISSIONER FITZSIMONS: Yes, we have size restrictions on antlers.

COMMISSIONER HOLT: This will then open up bowfishing to all species?

MR. DUROCHER: No, only species of catfish.

COMMISSIONER HOLT: Oh, we just want to do the catfish?

COMMISSIONER FITZSIMONS: Non-game.

COMMISSIONER HOLMES: Just catfish.

MR. DUROCHER: Yes.

COMMISSIONER HOLT: I mean, that's fine. You've got to say that specifically. Right?

COMMISSIONER PARKER: Let me ask you a question, Phil. As a professional freshwater biologist, how comfortable are you with this proposal?

MR. DUROCHER: Well —

COMMISSIONER PARKER: I hate to put you on the spot like that, but I know I can.

MR. DUROCHER: Well, it kind of goes against the philosophy, but I'm willing to go out and get the comments from the public. I think we may be opening up a can of worms here, but we can open it.

COMMISSIONER FITZSIMONS: Well, that's what public comment's for. It's a big old can of worms.

COMMISSIONER HOLMES: It won't be the first can.

COMMISSIONER FITZSIMONS: Yes, this won't be the first one. I thought public comment is what we wanted. That will be good.

MR. DUROCHER: I think we can expect quite a crowd.

COMMISSIONER FITZSIMONS: All right. We don't like going to those posted public comment meetings where nobody shows up.

All right. Is that it, gentlemen?

(No response.)

COMMISSIONER FITZSIMONS: Thank you, Ken. Thank you, Phil.

Mike Berger, a man who's not unfamiliar with public comment.

COMMISSIONER HOLT: Yes, especially lately.

MR. BERGER: May engender some more here. Good afternoon, Mr. Chairman, Commissioners. I'm Mike Berger, director of the Wildlife Division. I'm here to talk about our recommended changes to the hunting and fishing proclamation.

The first is in Upton County, the deer regulations in Upton County. It currently has a split regulation. The green regulation currently is three deer, one buck, and the brown regulation is four deer and two bucks. The population in Upton County is growing and expanding and habitat is improving.

We would propose to simplify the regulations and expand hunter opportunity by making the entire county as the brown section, four deer, no more than two bucks, with no antlerless permit required. I would point out that this expansion would also apply to the muzzleloader season, which currently is only in the brown portion of the county, but this would expand the muzzleloader season to the entire county as well.

As you know, we've had a good deal of success with our antler restriction regulation, first with the experiment and then the expansion last year to 15 additional counties. Those counties are shown in the hatched green color. This year, we would propose to add an additional 40 counties, or parts thereof, to the regulation. Those are the unhatched green counties. As you will recall, the regulation allows a two-buck limit, one of which must have at least one unbranched antler and the other may have one unbranched antler or an inside spread greater than 13 inches.

Managed lands program for upland game birds, this slide depicts the current ranges and hunted areas of the upland game birds that would be included in a proposed managed lands program. Currently, the season lengths and daily bag limits for these game birds vary by species and by county. The counties in red are the counties where the species may legally be hunted.

Under the proposed program, the landowners would have the opportunity to manage for one or more of these upland game bird species. Our proposal would be modeled after the successful managed lands deer program, and it is habitat based. I want to emphasize that. It is habitat based and it would be to encourage private landowners to improve the habitat on their lands for these birds.

These proposals were developed in large measure based on the discussions and recommendations of the Quail Technical Committee, the Quail Council, and the Game Bird Advisory Committee. I believe that they are consistent with the general guidelines expressed by these committees.

So it would work like this. The proposal is here as you see it. A wildlife management plan would be required and it would include a population estimate for the current year, an accurate harvest data for the property from the initial hunting season and each season thereafter that the landowner participates.

It would require a biological evaluation of the existing habitat on the property and the potential for maintaining or enhancing existing habitat or creating additional habitat. It would also include

department-recommended habitat management practices deemed necessary by the department to maintain, increase, enhance, or connect habitats. It would also specify the time period during which the harvest is authorized and would contain an annual harvest quota for that property.

The landowner would agree, by signing the wildlife management plan for these species, to perform the data collection for a minimum of three years for the purpose of meeting the requirements. A landowner who would not fulfill the obligations of the data collection and the habitat enhancement practices would be ineligible to participate in the program for three years thereafter.

Moving to alligators, the recent legislature in HB 2026 eliminated the alligator-hunting-license requirement. So staff is recommending that we include alligator regulations in the state hunting and fishing proclamation. So we're recommending appropriate changes made to provisions governing recreational take, such as lengthening the recreational season, allowing the take of alligators by means of firearms on private lands, and simplifying the process for obtaining CITES tags.

This map shows the historical optimum alligator habitat in the light green along the coast. That we would call the core area. In those 22 core counties, the regulations would remain essentially unchanged, meaning the season runs from September 10 to September 30, and the CITES hide tags are issued only to landowners based on a survey, and means and methods are restricted.

In the remainder of the state, in the non-core counties, we would like a season from April 1 to June 30. The hunters would need to have their regular or combination hunting license. They would need landowner permission. The limit would be one alligator per license year. You could use firearms or other means and a CITES hide tag, which costs $20, would be purchased post-harvest and would be required to be attached to all alligators harvested. That is by federal rule required. Firearms could not be used on, over, from, or across public waters.

One more alligator provision needs a minor modification that would reduce the burden on our law enforcement and our wildlife staff and enable communities in alligator country to have greater control of the populations that they live with. This would allow the local subdivisions and the community associations to contract with control hunters for the removal of nuisance alligators. We would review those areas and establish a number that might be removed. And then, the control hunters could take those alligators at the behest of the association or the political subdivision without having to come to us to get permission to do that first.

So those are —

COMMISSIONER FITZSIMONS: And so we license the contract hunter?

MR. BERGER: Yes.

COMMISSIONER FITZSIMONS: And then, so a local community like around Victoria or Houston is having trouble with alligators in a neighborhood —

MR. BERGER: We would —

COMMISSIONER FITZSIMONS: — they go directly to them?

MR. BERGER: Right.

COMMISSIONER FITZSIMONS: They're outside the permit system?

MR. BERGER: Well, the control hunter would have to have those tags to put on the alligator.

COMMISSIONER FITZSIMONS: But right now, those tags were coming from, were landowner base. So where is the control hunter?

MR. BERGER: He's getting his tags from us.

COMMISSIONER FITZSIMONS: Okay.

MR. BERGER: In those 22 counties, which is probably where most of this is going to occur, all those hide tags come from us.

COMMISSIONER FITZSIMONS: Okay.

MR. BERGER: They're issued to the landowner or in this case to the control hunter.

VOICE: To the contractor.

COMMISSIONER FITZSIMONS: It's your part of the world.

VOICE: Yes.

COMMISSIONER HOLMES: Well, there are a lot of them down there. Would there be a season on the nuisance hunting —

MR. BERGER: No.

COMMISSIONER HOLMES: — or would that be year-round?

MR. BERGER: Year-round.

COMMISSIONER HOLMES: Whenever there is an issue?

MR. BERGER: Whenever there is an issue, yes.

MR. COOK: The date they are a nuisance.

COMMISSIONER HOLMES: Right, that's the season.

COMMISSIONER FITZSIMONS: The nuisance season.

MR. BERGER: This just eliminates the need for a wildlife or a law enforcement officer to come out there, assess the situation, and take an action.

COMMISSIONER HOLMES: Right.

MR. BERGER: There's a number of gators that can be removed from that area, Lake Conroe, for example, and to reduce the numbers and reduce the amount of damage or threat.

COMMISSIONER PARKER: Can I ask you a question? Would you flip back to that other map that you had on there?

(No response.)

COMMISSIONER PARKER: Now, in the core areas, you say that only a landowner can get a tag?

MR. BERGER: It acts very similar to the managed land deer permit program. Again, we look at the habitat, assess the population, and determine the number of alligators that may be taken, and then we issue those tags to the landowner.

COMMISSIONER PARKER: In a non-core area —

MR. BERGER: Yes, sir?

COMMISSIONER PARKER: — you only have to have landowner permission? The landowner doesn't have to have a tag?

MR. BERGER: The landowner does not have to have the tag until whoever harvests an alligator on that property will have to get a tag post-harvest.

COMMISSIONER PARKER: Post-harvest?

MR. BERGER: Yes.

COMMISSIONER PARKER: Okay.

COMMISSIONER HOLT: That's a federal requirement?

MR. BERGER: The tagging of the hide is a federal requirement. All alligators taken require a CITES tag. It would work like this — a person would take the alligator and have a time to call in here, probably an 800 number in here, and in our hunting annual, our Outdoor Annual, there would be a Form 403 in there, which is how to measure the gator, the sex of the gator, the information we need to collect for those gators. They would send that in to us with a check for $20 and we'd return the tag to them by return mail to put on their hide.

COMMISSIONER HOLT: That could take a while by the time you do the back and forth.

MR. BERGER: It would take a week.

COMMISSIONER FITZSIMONS: Good. Any other questions for Mike.

(No response.)

MR. BERGER: Thank you.

COMMISSIONER FITZSIMONS: Thank you, Mike. Just as a — oh, yes, we've got to refer this one to the register. We authorize staff to publish this item in the Texas Register for the required public comment period. Thank you, Mike.

Just as an aside, in the audience we have Vernon Bevill and Billy Osborn. They mentioned the Game Bird Advisory Board and Billy has been reappointed to that board. Lucky you. Billy, you all will be looking at this, I presume, at your next opportunity.

Mike, is that right?

MR. BERGER: Yes, sir.

COMMISSIONER FITZSIMONS: Okay.

MR. BERGER: The Game Bird Advisory Board will be reviewing this regulation proposal.

COMMISSIONER FITZSIMONS: Very good. Billy, thanks for taking this on and all the work you've done in the past how many years.

MR. OSBORN: About six.

COMMISSIONER FITZSIMONS: Six, good. I tell you, I really appreciate it. Those of you who don't know Billy Osborn, he's been a great chair of the Game Bird Advisory Board and he's done a great job. I'm glad you're willing to take it on again. Thank you.

Next up is the proposed harvest regulations for freshwater mussels and Mr. Bill Provine.

MR. PROVINE: Commissioners, for the record, my name is Bill Provine with Inland Fisheries. This item deals with the statewide mussel and clam proclamation. We're looking into the reduction of commercial bag limits and the modification of no-harvest sanctuaries.

There are over 50 species of mussels, freshwater mussels, in Texas. They range from species that are less than one inch long to the giant washboard, which is about 12 inches long and four pounds. These animals can live as much as 100 years old. They occur nearly statewide in most places in Texas with permanent water. They dig into the substrate and they're filter feeders.

Freshwater mussels are important elements of the aquatic ecosystem. They are natural biofilters. They're eaten by most wild animals that eat meat. They concentrate environmental contaminants. That might be good for the environment, but not very good for the mussel.

They're sensitive barometers of environmental quality. When ecosystems degrade, mussels are the first to decline. In fact, mussels are the most rapidly declining group of animals in the United States. Nationwide, nearly 80 percent of mussel species are rare, threatened, endangered, or extinct.

Mussels have been economically important in many ways throughout the years. Before World War II, mother of pearl buttons were used extensively. More recently, they've been harvesting shells for cultured pearls implant nuclei. The process is they cut a plug out of the thick part of the shell, and round it, and then slip it under the mantle membrane of a pearl oyster and the oyster deposits mother of pearl on it until it gets to the size they would like.

The shells are also used for arts and crafts inlay. There are also gem quality pearls in mussels found in certain areas in Central and West Texas. The meat is used for live bait.

Mussels have really not been on anyone's radar screen in this agency until about the 1990s. In 1992, the Heart of the Hills research staff conducted some surveys throughout Central Texas. They looked at seven river systems and what they found was quite alarming. Most of those places they looked didn't have living specimens of mussels. Where they did find them, they were sparse and in isolated areas.

Mussels grow very slowly, about a millimeter per year and they have complex life cycles. So the recovery can take years, even decades, and that's if the conditions improve. We have conducted more recent surveys in East Texas and West Texas and we've found severely reduced populations in many of the areas that we looked.

There are several reasons for this decline. Changing land use and overgrazing has caused scouring floods which eliminates the substrate needed for mussels. Droughts, we've had some major droughts in Texas and we've de-watered entire reservoirs or entire stretches of stream. Of course, these animals can't get up and walk away and they're killed.

Pollution is responsible for killing all the mussels in stretches of streams or rivers. Reservoir construction eliminates those species that require rivers or streams to live. Harvest, although harvest hasn't been responsible for eliminating any species or it's not really responsible for the long term decline in a lot of the mussel species we've seen, it's something that we need to be concerned about when so many of our mussel species are declining.

Currently, Texas regulations allow essentially unlimited commercial harvest of mussels of a defined size in public waters. The demand for mussels has varied throughout the years. Before the mid-1990s, mussel shell prices were very high and a lot of musselers came from other states to harvest Texas mussels. Some of those years, we sold over 450 commercial licenses.

Last year, however, we sold eleven resident licenses and one non-resident mussel license and no commercial buyer licenses were sold in Texas. So there were no transactions conducted in Texas. The musselers who collected their shells in Texas brought them to buyers in Arkansas or Tennessee.

We've conducted efforts to contact these musselers. Since there weren't that many, we tried to contact all of them through mail surveys and by telephone. We received five responses. Of those, two were engaged in periodic pearl harvest out in west Texas. For two, shell harvest was their entire livelihood and they've been harvesting shells for 22 and 27 years respectively.

One, the non-resident musseler, is also a full time musseler and he comes to Texas. In fact, I talked to him today and he rents an apartment in Texas and mussels in Texas and sells his mussels in Arkansas. All of these musselers, by the way, are attending. They're in the audience today.

Texas regulations on any of our resources are usually based on sustainable yield. Our surveys have found little or no mussel surpluses in most areas. Harvesting any substantial part of a declining resource is not in the best interest of that resource. What we're afraid of is that if mussel prices increase and we get this big influx of musselers from out of state, or from instate, that our Texas mussels resource could be harmed. A regulation eliminating all the value of a resource is also not in its best interest.

So what we're asking to publish in the Texas Register is a change from unlimited harvest during weekdays and a 75-pound limit during weekends — that's the current regulation — to 25 pounds of whole mussels or 12 pounds of shells per day. Our rationale is that most mussel populations in Texas have been reduced in recent years. If demand increases to the extent that it has in the past, we're afraid that there will be harm to our mussel populations.

The shell harvest is currently at a very low level. So the impact is probably at the lowest level. So if we're going to do anything in this area, this would be a good time to do it. Also, this regulation would not have much effect on the cottage pearl harvest.

We're also asking to publish modifications in the mussel sanctuaries. Adult mussels don't move very much. Their distribution is by way of a larval, parasitic life stage. They connect on fish and the fish, wherever the fish move, when the larval stage change, they drop off and turn into adult mussels. So these no-harvest mussel sanctuaries function as hatcheries to produce and distribute mussels. They also protect rare mussels from direct harvest and disturbance when other mussels are being harvested.

We had 27 such sanctuaries. We're asking to delete some, and to add some, and to modify, and we'd like to publish 17. So there will be a reduction in ten sanctuaries.

That's all I have. Are there any questions?

COMMISSIONER FITZSIMONS: Bill, there seems to be a direct relationship between mussels and water quality. Is that right?

MR. PROVINE: Water quality has a lot to do with what mussels are there, yes.

COMMISSIONER FITZSIMONS: Have we shared this data to TCEQ since they have the jurisdiction for water quality?

MR. PROVINE: We don't do much mussel work. We have one person who really knows much about mussels and, you know, we just don't have the resources, financial resources, to have a staff of people to accumulate very much information on mussels.

COMMISSIONER FITZSIMONS: But what little data we have, do we share that with TCEQ?

MR. PROVINE: I don't think they look for the correlation between mussels and water quality. I think they take water quality samples.

COMMISSIONER FITZSIMONS: Phil, I'm sorry. Phil, you've got a question?

COMMISSIONER MONTGOMERY: And Phil Durocher may be the right one here, but the population numbers are pretty horrifying. We don't need to address it now, but it certainly raises a question — should we be doing more work and more stewardship to try to do something to help alleviate that collapse of populations?

MR. DUROCHER: Yes.

COMMISSIONER MONTGOMERY: How should we address it?

MR. DUROCHER: Excuse me. I'm Phil Durocher, director of Inland Fisheries. We've been doing a lot more, not particularly with our staff, but we've been giving grants to some of the universities to help us do these surveys. One of our big concerns is sooner or later, the Fish and Wildlife Service is going to take up mussels. When they do, and these populations are in as bad a shape as they are, and they start listing a bunch of these mussels in Texas, it could have a big impact on land use and some other things that we can do in our streams and rivers. That's a concern.

I think we need to show that we don't have a lot of control over these things that are affecting mussels, the pollution. I mean, we're working with TCEQ and everyone else, but we need to show that we're doing everything that we possibly can to protect these animals before the Fish and Wildlife Service gets in it. As Bill said, it's a —

COMMISSIONER FITZSIMONS: They've been listed other places?

MR. DUROCHER: They are looking at them.

COMMISSIONER FITZSIMONS: So they're candidates?

MR. DUROCHER: We've got some that are listed, right.

COMMISSIONER FITZSIMONS: That's a candidate species?

MR. DUROCHER: No, I mean, we've got 50 species. There are some in Texas that are already extinct. There are some that are listed as threatened, some endangered. Fish and Wildlife Service, just as we have, has not paid much attention to them yet, but I suspect one day they will.

COMMISSIONER FITZSIMONS: So if you were to designate critical habitat for freshwater mussels, you would be drawing a pretty big watershed map, wouldn't you?

MR. DUROCHER: It depends on the creature, you're right.

COMMISSIONER HOLMES: Didn't I understand that they were, at one point, prevalent all over Texas?

MR. DUROCHER: Yes, sir.

MR. PROVINE: There are a lot of species of mussels. There are areas, there are watersheds that are almost devoid. In those watersheds that have mussels, there are mussels that are more abundant than others, but we have a lot of watersheds or streams in the state that just don't have very many mussels. That's the main problem.

MR. DUROCHER: Yes. Fortunately, some of these species that are commercial are ones that are probably in better shape in some parts of the state than some others. Some of these have adapted to reservoirs and the populations, they do fairly well in reservoirs of some of those species. Fortunately, they're some of the ones that — are commercial.

MR. PROVINE: A lot of the musselers work in reservoirs. That's not where a lot of our problems are. Also, when these reservoirs go down and all the mussels are killed, they are still of value to the musselers. This is where they come in and take some of those, just the dead ones.

COMMISSIONER HOLMES: This is going to go on the agenda tomorrow, presumably, and —

MR. DUROCHER: No.

COMMISSIONER FITZSIMONS: No, this is for comment.

MR. DUROCHER: We're asking to publish these rules.

COMMISSIONER FITZSIMONS: This is to publish. MR. DUROCHER: We'll publish this and then we'll come back in April with —

COMMISSIONER HOLMES: Well, the fact that there are people here in the audience, I thought maybe they would be here tomorrow, but it will be some —

MR. DUROCHER: They'll be here in April when we come back to you with a recommendation.

COMMISSIONER FITZSIMONS: And obviously we'll be hearing from them during the public comment period.

MR. DUROCHER: Absolutely.

COMMISSIONER FITZSIMONS: They have the most to gain or lose in how we do this.

MR. DUROCHER: Yes.

COMMISSIONER HOLT: That's right. Long-term maybe.

MR. PROVINE: Yes, they're very interested in talking with you.

COMMISSIONER FITZSIMONS: Good. We look forward to their help because it's part of a much bigger issue —

MR. PROVINE: They know a lot more about it.

COMMISSIONER FITZSIMONS: — which interestingly enough is foremost in our land and water resource conservation plan, which is water. It's just the canary in the mine.

MR. PROVINE: Right. I met with the individuals this morning and they would like to help this situation as much as they can.

COMMISSIONER FITZSIMONS: Good. We welcome their help. Any other questions on this?

(No response.)

COMMISSIONER FITZSIMONS: If there's no further questions or discussion, I authorize staff to publish this item in the Texas Register for the required public comment period.

MR. PROVINE: Thank you.

COMMISSIONER FITZSIMONS: Thank you, Bill and Phil.

Next up, item 4, proposed repeal of the Sea Rim State Park hunting, fishing, and trapping proclamation, Vickie Fite.

MS. FITE: Good afternoon, Mr. Chairman, members of the Regulations Committee. I'm Vickie Fite, the public hunting coordinator. I'm here today to present the proposal to repeal the Sea Rim State Park hunting, fishing, and trapping proclamation.

I'd like to give you a brief history of this proclamation. In 1971, the legislature gave the Texas Parks and Wildlife Commission rights under sound biological management practices to open seasons for hunting on a state park. Hunting would be by special permit only and no season would last longer than three days.

In 1981, the 67th Legislature added subchapter 62.0631 that gave the Commission the authority to provide an open season for recreational hunting on Sea Rim State Park that would basically mirror the seasons and bag limits for Jefferson County. This is when this proclamation was established, in 1981. The primary species to be hunted were water fowl and fur bear.

In 1985, substantial changes were made by the legislature to TPWD Code Chapter 62, subchapter D, hunting in state parks, that would allow recreational hunting on state parks. These changes provided the opportunities for parks to become part of the public hunting program. In 1990, Sea Rim was added to the list of state parks to be hunted under the public hunting lands proclamation. This was done to streamline the regulations process and to allow more hunting opportunity.

The Sea Rim State Park hunting, fishing, and trapping proclamation is basically a duplication of regulation and is no longer required. Mr. Chairman, that concludes my presentation.

COMMISSIONER FITZSIMONS: It's not required. We're getting rid of it. Hooray for you.

VOICE: Wonderful.

COMMISSIONER FITZSIMONS: Any questions on that simple —

COMMISSIONER PARKER: You can still hunt and fish?

MS. FITE: Yes, sir. It will change nothing.

COMMISSIONER FITZSIMONS: It's not necessary anymore.

MS. FITE: Right.

COMMISSIONER FITZSIMONS: At one time, that was the exception that we could hunt and fish that.

MS. FITE: Right.

COMMISSIONER FITZSIMONS: Now, we've made the rest of the parks like Sea Rim. So we don't need this any more.

MS. FITE: Yes.

COMMISSIONER FITZSIMONS: Well done. If there are no further questions, I authorize staff to publish this item in the Texas Register for the required public comment period. Well done.

MS. FITE: Thank you.

COMMISSIONER FITZSIMONS: Identifying unnecessary rules and regulations.

COMMISSIONER BIVINS: Mr. Chairman?

COMMISSIONER FITZSIMONS: Yes, sir?

COMMISSIONER BIVINS: There's a cell phone found under this seat. It was, I think, one of the people making a presentation and they may need it. So you may want to announce it.

COMMISSIONER FITZSIMONS: Did anybody —

COMMISSIONER PARKER: It's got a leather case on it.

COMMISSIONER FITZSIMONS: Did anybody leave their cell phone up here?

(No response.)

COMMISSIONER FITZSIMONS: No? Is that state property?

VOICE: We don't need any more.

COMMISSIONER FITZSIMONS: Okay. Next up, item number 5, proposed deer permit rules. Clayton Wolf, make your presentation. I believe we have the chairman of the Whitetail Deer Advisory Committee here also, our Chairman Emeritus, Mr. Bass. If you want to join Mr. Wolf —

MR. BASS: You mean, I've got to work now?

COMMISSIONER FITZSIMONS: Yes, I'm afraid so. You can't play Solitaire any more on your computer.

COMMISSIONER HOLT: Or poker.

MR. WOLF: Mr. Chairman and Commissioners, for the record, I'm Clayton Wolf. I'm director of the Big Game Program in the Wildlife Division. Of course, up here also it Chairman Emeritus Mr. Bass, who chairs our Whitetail Deer Advisory Committee —

MR. BASS: And your trusty sidekick.

MR. WOLF: So he says. He fought a valiant campaign and won the election to chair that prestigious committee.

This morning, I'm going to present to you quite a few proposed rule changes for a scientific breeder proclamation and also some deer permit denial provisions. This presentation, I've dispensed with a lot of the background information that I gave you in November. Obviously, there's a lot of material, but we will answer questions.

On that note, the last time I visited with you, we had a lot of questions about disease issues. Actually, right after we left here, we hot-footed it over to the Texas Animal Health Commission to visit with them, our state agency in charge of animal disease. With us this morning, sitting right over here, is Dr. Bob Hillman. Dr. Hillman is the executive director of the Texas Animal Health Commission. He's available for questions, if I can't answer them or if you would like to ask him directly. So in the course of my presentation or at the end, he will be here. Of course, Mr. Bass also is here representing our Whitetail Deer Advisory Committee, which got to see these proposals and also commented on them.

Is there anything you'd like to add, Mr. Bass?

MR. BASS: Doing great.

MR. WOLF: Our first proposed rule deals with a movement qualified program. This is a disease monitoring program we are proposing for our scientific breeders. There are two basic components. First, if a facility has a TAHC — that's Texas Animal Health Commission — CWD monitor herd status of Level A or higher, we would deem them movement qualified. That means they could move deer in Texas. The alternative that we're proposing for this is that if a facility has five eligible mortalities and not detected CWD test results have been produced for at least 20 percent of these, we would also deem that facility movement qualified.

One amendment that I'm asking for, it was an error in our publication, if you'll look at the slide there, we are asking to strike the word "and." It was never our intent that a herd would have to meet both requirements. All of our discussions with our task forces were one or the other. So this is a simple amendment we are requesting.

We are proposing that these requirements will become effective April 1, 2007 and be based upon test results from the previous 12 months. Our current rules for liberation would be effective until April 1, 2007, when the new rules would take place.

We propose that a facility would lose movement qualified status for a minimum of one year if the owner of the facility knowingly accepted deer from a non-qualified facility. We're also proposing to abolish purchase permits and transport permits, which are $30 each, and also our temporary invoices, which are free. In lieu of that, we have proposed rules to implement a transfer permit. Basically, it's one piece of paper that deals with all scientific breeder deer movements in Texas.

We propose to eliminate the pre-movement notification requirement to list individual deer in a shipment by unique number and that persons transporting deer must possess a transfer permit, including the unique identification of each animal in their possession. Of course, individuals would have to notify the department to activate a permit and they would have to do that prior to getting on a public road with a shipment of deer.

There's a slight change in that permits can be activated by fax or phone and we're working on a web-based application. When we get that built, then folks will be able to do that automatically through the Internet.

Non-breeders holding different temporary purposes would have to possess a copy of the transfer permit indicating the source of each deer. This permit would be valid for 48 hours.

Numerous components we have proposed in the rule for required information for a transfer permit, but basically we want to know where the deer is coming from, where the deer is going, and who the people are involved in the transport or activation of that permit. It's noteworthy that Texas Animal Health Commission has some rules proposed right now that will require mandatory premise ID registration for all livestock owners or operators in Texas, and that would include scientific breeder deer.

So we have been visiting with them. It's possible that if their proposed rules are adopted, premise ID registration might assist us in gaining that unique number that really helps manage a database better. Right now, when we're dealing with ranch names in a certain county as a liberation site, we struggle with that in the database because those aren't truly unique characters. Premise ID might give us some extra tools there to help us manage a cleaner database.

We propose to change the permit period to begin July 1. The reporting period would remain the same. We would require that certified wildlife biologists physically inspect the facilities and certify no deer are within the facility prior to the issuance of a permit.

Also, we are proposing to allow only 30 days for soft releases. These are acclimation pins where the deer are allowed to acclimate to the area before final release.

Additionally, two more, we're proposing to increase the permit fee from $180 to $400 and redefine unique numbers. Now, at this point, what I'd like to note is that everything down to the first three bullets there, and everything prior, are issues really that have very little contention.

We have worked with our CWD task force, breeder user group, Whitetail Deer Advisory Committee. I've done a lot of work and we presented these to our Whitetail Deer Advisory Committee. There was concurrence and acceptance of these rules as good proposed rules and really not much contention at all. We had one public comment through the Internet that disagreed with the scientific breeder rules as a whole, basically stating that they didn't think deer should be kept in captivity and that moving deer would pose some disease concerns. Other than that one comment, a lot of concurrence and agreement on that.

Starting with bullet number 5 and 6 there, it's a little bit different story. The proposal to increase the permit fee from $180 to $400, first you will recall that when I came to this committee in November, we were proposing a $100 increase as a no net loss proposal to cover the cost of the revenue we would lose from giving away transport permits basically.

Of course, we were directed to go back and publish a rule that would require a permit fee that would cover all of our costs in the program. Of course, we have significant costs in administering the program. Our estimates indicated that it took about $400 per applicant for us to cover our law enforcement and administration of this program.

And so, thus, we propose the rule $400, but we are made aware — and I believe all of you may know — that four of our state senators signed a letter and sent it to this Commission requesting that this Commission consider not adopting these rules. Of course, that's why I felt like it was necessary for myself to provide a little bit better explanation.

At our Whitetail Deer Advisory —

COMMISSIONER FITZSIMONS: Clayton, I'm sorry, it was to postpone, was it not?

MR. WOLF: That's correct.

COMMISSIONER FITZSIMONS: All right.

MR. COOK: Clayton, how many — 180 or 280 or 400. How many permits are involved?

MR. WOLF: The last time we looked, it was approximately a little over 800 scientific breeder permits. That's about 720 permittees. If you have two facilities, you have to get a separate permit for each one. So 720 permittees, 820 facilities.

Our Whitetail Deer Advisory Committee also looked this and there are no comments on the permit fee increase. However, there were some on the next bullet, redefining unique number. When I briefed you in November —

COMMISSIONER FITZSIMONS: And you had no comments on the $180 to $400?

MR. WOLF: No, we did not. Now, one of our advisory committee members did make me aware that this permit fee increase might be an issue with their organization, the Texas Deer Association —

COMMISSIONER FITZSIMONS: Okay.

MR. WOLF: — independently.

COMMISSIONER FITZSIMONS: May I stop you on the 400?

MR. WOLF: Yes.

COMMISSIONER FITZSIMONS: The 400 is an estimated cost of the self-funding —

MR. WOLF: That's correct.

COMMISSIONER FITZSIMONS: — of the entire program or just law enforcement?

MR. WOLF: The entire program. We did a fiscal note last session on what wildlife had involved and then Davis Sinclair provided some hours for all the permits. We had to do a little bit of estimation in there because there was some lumping, but we feel like our estimates were conservative at best.

COMMISSIONER FITZSIMONS: Okay.

MR. BASS: That's a gross figure of $325,000, $350,000.

MR. WOLF: Right.

MR. BASS: Basically, the committee, I think, Clayton represented the committee that there had been some discussion by the Commission of what would be involved in trying to do a full cost recovery, a user-pay/user-benefit type approach, and that was the number that came back. That didn't seem to be an issue to the bulk of the committee, other than the president of TDA saying that there were probably some folks in his organization that would not be enthusiastic supporters.

COMMISSIONER FITZSIMONS: Okay. One of those —

MR. BASS: It was not a contentious issue.

COMMISSIONER FITZSIMONS: All right. It was not a contentious for the consensus of the committee.

MR. BASS: Right.

COMMISSIONER FITZSIMONS: That $400, there has been some criticism that $400 is a very rough estimate. Did you feel that that's an accurate number or a good estimate?

MR. WOLF: I think — we had talked about it. It is probably a conservative estimate.

COMMISSIONER FITZSIMONS: Okay.

MR. WOLF: One of the biggest guesses we had to make was that the time code that our game wardens use lumps their enforcement activities for breeder permits, TTT, DMP, but —

COMMISSIONER FITZSIMONS: Is it fair to say, any more accurate and it will be higher?

MR. WOLF: That's my guess on it, yes, sir.

COMMISSIONER FITZSIMONS: All right.

COMMISSIONER HOLMES: Wasn't that the math on it? You thought it was more like 350,000 a year and there were 800 permits?

MR. WOLF: I don't recall that.

COMMISSIONER PARKER: There's 720 permits, charging $180, that's 129,600. You can't put on that program for only $129,000.

VOICE: No. That's correct.

VOICE: I wouldn't think so.

COMMISSIONER HOLMES: That's the conclusion we reached last time. That's why we said 400 —

VOICE: That is correct.

COMMISSIONER HOLMES: — thinking 400 was close, but maybe didn't quite cover it.

COMMISSIONER HOLT: Yes, the sense you get in this letter from these senators is that it was some arbitrary number.

COMMISSIONER PARKER: So the average Joe Blow deer hunter out there buying his license, he's the one that's supporting the fancy deer-breeding program.

COMMISSIONER HOLT: You could argue that, yes.

COMMISSIONER PARKER: Yes.

MR. WOLF: We did have one public, no, I'm sorry, two public comments via the Internet on the permit fee. One agreed with it and actually suggested go higher. One disagreed, and said it was too expensive, and that $250 might be more appropriate for that person.

COMMISSIONER FITZSIMONS: On the unique number, before you leave that, presently that's a misnomer. Correct?

MR. WOLF: Yes, sir.

COMMISSIONER FITZSIMONS: There's nothing unique about it because you make it up.

MR. WOLF: That's correct. And we're not leaving it. I've got another couple of slides here that describe this in detail.

COMMISSIONER FITZSIMONS: All right.

MR. BASS: My understanding — correct me, if I'm wrong, Clayton — the current system is that the bulk of the permittees use numbers that are issued by the department. There is a mechanism that's been there forever that if one wants to, one can take a different avenue and issue your own numbers. Therefore, you could issue a duplicate number. It's not like we all get to make up our own Social Security numbers and assume that we'll all pick different ones.

COMMISSIONER FITZSIMONS: For IRS purposes, that would be prohibitive.

MR. BASS: This was to say, no, you can't do that any more.

COMMISSIONER FITZSIMONS: Okay.

MR. BASS: Now, if people want to add their own numbers, because they have a pre-existing numbering system that they like and they work with for their deer, there's nothing in the statute or the regs that say they can't put other identifying marks on the deer, ear tags, whatever they want to do. You know, they can use as many numbers as they want. The proposal is just that one of those has to be a number that the department issues, not one that you can write yourself.

MR. WOLF: Yes, actually, that is correct. The current rule, if you followed it properly, would provide for unique identification. Unfortunately, it was misunderstood. We got support from our breeder user group and CWD task force.

If you'll look on the screen there, the second part of this definition proposes to delete someone making up their own unique numbers. We have support on that part. Everyone agrees that for animal-tracking purposes we need unique identification. So deleting the part that allows you to make your own number is not a contentious issue. That's not the contentious part of unique number.

What we were made aware of in the last couple of weeks was — if you'll look on line 4 there — the definition that's stricken, the word "ownership." If you're familiar with the breeder bill that was introduced during the 78th session, I'm sorry, the 79th session, there was a lot of contention over the ownership of scientific breeder deer. Ultimately, no legislation passed. Nothing was done. We maintained status quo.

Nonetheless, those people that felt like — some people felt that striking the word "ownership" diminished their ownership rights, or perceived ownership rights, in these deer. And so this issue was brought to our Whitetail Deer Advisory Committee by Scott Bugai, the president of TDA. Our Whitetail Deer Advisory Committee studied it in depth.

The advisory committee recommended the adoption of staff's proposed definition. However, they did recognize that the ownership issue was contentious. And so, with that endorsement of this proposal, they provided a caveat that at least as a courtesy we show to this commission the alternative definition that was provide by Scott Bugai, which simply takes our proposed text and adds the old language back in there, "used by the department to track ownership." This was one of the issues that was also addressed in the letter that you got, all of you received, that was signed by the four senators.

COMMISSIONER FITZSIMONS: But ownership is a misnomer. It's possession.

MR. WOLF: That's my understanding, yes. Now, obviously, we're talking about legal issues and —

COMMISSIONER FITZSIMONS: Lawful possession, right.

COMMISSIONER HOLT: This is, for me — you know, I am ignorant in this area because I realized after reading all this, is there ownership or is there not with these deer?

COMMISSIONER FITZSIMONS: Ann Bright?

COMMISSIONER HOLT: I know, there's probably not a specific name to it. I think that's why the legislature didn't approve it.

MS. BRIGHT: I'm going to have to request security when I leave today.

COMMISSIONER HOLT: I shouldn't have asked this question.

VOICE: Witness protection for Ann.

MS. BRIGHT: Under the — the statute refers to the privileges of the permit, the privileges of a scientific breeder permit. The statute authorizes the holder of a scientific breeder permit to do certain things regarding the deer. They have the right to buy, sell, breed, possess, keep in captivity.

The scientific breeder law also says that, except as modified by the scientific breeder law, all other laws regrading deer apply. One of the basic laws of wild deer in the state is that they belong to the people of the state of Texas. One of the examples I used during the session that just I think wore everybody out was the bundle of sticks, which is that ownership of any kind of property involves a number of rights.

Scientific breeders do have some of those rights. They do have some ownership rights. They may not have the whole bundle, but they do have some. When it really comes down to it, it may or may not matter because in terms of the things that they are able to do, and they want to do, buy, sell, breed, keep in captivity, in some ways, we end up just talking about semantics.

COMMISSIONER HOLT: So it's never been legally challenged, theoretically?

MS. BRIGHT: Not through any kind of litigation. Obviously, in the political process during the legislative session, there was considerable discussion about it.

COMMISSIONER HOLT: Okay.

MR. BASS: In the committee, I think the feeling was whether the word "ownership" was in this definition of a unique number or not would have no standing on who really owned the deer. I mean, striking it from this doesn't change the legality, whatever that may be. A lot of people felt taking ownership out made this statement more neutral. It didn't say someone owned them; it didn't say they didn't.

There were those who feel very threatened by the removal of ownership here and therefore wanted to at least keep this option open. So the committee said, Fine, punt to you guys.

COMMISSIONER FITZSIMONS: Well done, Ann.

COMMISSIONER HOLT: I was going to say, that was good, Ann.

COMMISSIONER FITZSIMONS: Leave the building.

VOICE: It sounded like lawyer talk to me.

COMMISSIONER HOLMES: What did she say?

MR. WOLF: They're a bundle of sticks.

VOICE: It's not clear.

COMMISSIONER PARKER: Somehow, I get the feeling that Ann, and Mary, and Lydia always draw a bye.

(All talking at once.)

MR. WOLF: Ultimately there was a point of, what is the purpose? What purpose are we trying to achieve with this definition? The bottom line is we want to know the individual animals, where they moved to, location, and the person that possesses them. Who paid for the animal is really irrelevant to the purpose of unique number.

Now, onto our permit denial provisions. Of course, you'll recall that in May of last year, this process started when we were dealing with deer management permits. The question came up — if someone is denied a permit because they've been convicted of doing some kind of bad act, could they somehow circumvent that and still stay in the business? The truth of the matter, the answer to that is yes, it's possible.

So we were directed to try to develop some rules to address this. We went back a couple of times. We wanted our Whitetail Deer Advisory Committee to take a look at these. So we tabled some and we also made them more comprehensive in dealing with three different types of permits, our scientific breeder permits, deer management, and TTT permits.

The standard language we are proposing for all three of these is that the department may refuse permit issuance. We want to make it very clear that that's may refuse and we have the discretion. It's not compulsory and we do not have to if we have a violation.

That would be for any person who within a five-year period — we standardized that — of applying for a permit has been finally convicted of, or received deferred adjudication for a list. I'm going to show you here in a second a list of violations. The point here is that under current rules, in some cases, for instance our scientific breeder permits, there's no limit on how far back we can look. We can look back until their birth, the beginning of time, or the beginning of the permit program.

Also, under scientific breeder permits, in some cases, right now there is language that says we shall deny permit if they don't turn in their reports. We can consider that minor if it's a one-time incident. So we feel that's appropriate. So we wanted to make things more standard and have some reciprocity between these permits because they all deal with people holding captive deer in this case. All these permits deal with the same thing.

That list of violations that we've developed is consistent among a couple of these proposals I'm going to show you. The first one is any violation of Parks and Wildlife Code Chapter 43, C, E, L, or R. That's our deer management permits, breeder permits, TTT, and it also includes our research permits, all the permits that deal with holding live game animals. The reasoning is if you've been convicted of some problem, holding a live game animal under one permit, it probably should have implications to you getting a permit for the same kind of activity.

Number 2 any violation of Parks and Wildlife Code anywhere in the Code that's a Class B misdemeanor, A misdemeanor, or felony. So we are not looking at Class Cs outside of those four subchapters, but we are, we still want to retain the right to look at serious violations. That still doesn't mean that we have to refuse a permit, but we want to be able to consider them.

And then, a violation of Parks and Wildlife Code 63.002, which basically says you can't have a live game animal in your possession unless you have a permit authorized by the Code.

We presented this to our Whitetail Deer Advisory Committee, the Whitetail Deer Advisory Committee endorses this proposal with one caveat. That caveat is that they want the record to be clear that it's the intent of the agency, and possibly the direction of this Commission, that it's not our intent to refuse a permit based on one simple Class C misdemeanor that's a minor violation.

Obviously, it's hard to categorize simple because some Class Cs can be viewed as serious and some not. Not all Class Cs are created equal. Some of them could be as simple as an ear tag falling out or it could be someone took a deer from the wild and tried to sell it. Those are much different. The bottom line is our preamble indicates that we are looking at patterns and histories for minor violations or possibly single egregious acts. Their request is they want the record to be clear what the intent is as far as us administering this program, since we do have some latitude and discretion.

COMMISSIONER HOLMES: Before you go —

MR. WOLF: Yes, sir.

COMMISSIONER HOLMES: — did I understand you to say the Whitetail Deer Advisory Committee wanted to make sure that a Class C misdemeanor would not be a reason to withhold it?

MR. WOLF: No.

COMMISSIONER HOLMES: Is that what you said?

MR. WOLF: No that one "minor Class C" would not be. For instance, if a game warden shows up at your breeder pen and an ear tag has fallen out, technically that's a violation. You might get a ticket, but it happens. You know, the best person in the world with the greatest intent, that can happen.

COMMISSIONER HOLMES: But you don't list Class C up there.

MR. WOLF: In the first, in number one, any violation of —

COMMISSIONER HOLMES: Oh, okay, it's in number one?

MR. WOLF: Yes.

COMMISSIONER HOLMES: All right.

MR. WOLF: That could be a Class C.

COMMISSIONER HOLMES: All right.

MR. WOLF: On item 3, the point is, you could — it's my information, you could — take a deer from the wild, and sell it, and that might end up being a Class C violation. That's much different —

COMMISSIONER HOLMES: Right.

MR. WOLF: — than an ear tag falling out.

COMMISSIONER HOLMES: Right. But that's what the may —

MR. WOLF: That's correct.

COMMISSIONER HOLMES: — part is about anyway.

MR. WOLF: Does that cover that? Is that a pretty accurate depiction?

MR. BASS: Uh-huh.

COMMISSIONER HOLT: You've read this letter from the senators?

MR. WOLF: Yes, sir.

COMMISSIONER HOLT: Do you think we should worry about whether they're actually convicted and all that kind of thing?

MR. BASS: Through all of this, I think that the biggest underlying reservation that a number of committee people had is not that current folks, either staff or Commission or whatever level, use this in a capricious or mean-spirited way, but that once it was on the books that somebody who just didn't like the program and was out to get somebody —

COMMISSIONER HOLT: Could use it.

MR. BASS: — it would be an easy gotcha. There's kind of a thread of that in some of these other permit denial circumstances that we discussed, which is really the core of the issue of the reservations.

COMMISSIONER FITZSIMONS: It's really the arbitrariness of it. It's not this due process issue because, I mean, it is a permit, right, Ann, and there's not a due process issue there. It's like a driver's license.

COMMISSIONER HOLT: Yes, exactly.

COMMISSIONER FITZSIMONS: They can suspend a driver's license without —

COMMISSIONER HOLT: For no reason.

COMMISSIONER FITZSIMONS: — without a conviction. So it's really that we're not arbitrary. So the idea is if you make it serious violations that's the only thing that's still within the discretion. Am I right?

MR. WOLF: That's — well, yes.

MR. BASS: And it is still may.

COMMISSIONER FITZSIMONS: It's still may.

MR. BASS: Still may.

COMMISSIONER FITZSIMONS: So it's still a discretion and it's only serious violations —

MR. BASS: Or —

COMMISSIONER FITZSIMONS: — or a violation related to the —

MR. BASS: — possession of —

COMMISSIONER FITZSIMONS: — illegal possession.

COMMISSIONER MONTGOMERY: You raised the question, and we talked about this at the last meeting, about what the appeals process was for revocation. What is the answer to that?

MR. WOLF: Well, we actually have added a review process that I'll present to you in a few minutes that covers that.

COMMISSIONER MONTGOMERY: Okay.

MR. WOLF: It's probably noteworthy, in some cases, I think folks are operating by the false pretense that we have very little latitude right now; but the reality is, for instance under breeder permits, what we are proposing with that language is actually more restrictive than our current latitude. Right now, we could look at any violation anywhere in Chapter 43. We're asking to reduce it to four subchapters in there. So we have a great deal of discretion and latitude with most of these rules already.

Now, this particular proposal here deals with the directives of addressing the issue of someone trying to circumvent someone who doesn't qualify. We're proposing this for breeder, DMP, and TTT permits, in that we may prohibit someone for a period of five years from acting as an agent of a permittee if they have been convicted of, or received deferred adjudication for — and that list is the same.

The point here is that if you don't apply for a permit, or if you get convicted of stealing deer from the wild, and we decide we're not going to issue you your permit, your spouse could apply. You currently could be listed as an agent and an agent is permitted to do many, many activities that a permittee can, in fact, most of them.

Of course, we think that it's the directive of this Commission to not allow someone who has proven to be untrustworthy to be able to hold captive wildlife and still maintain in that business, especially have possession. So this would give us the ability to keep a person off a permit as an agent. It wouldn't allow us to deny that permit.

We do not have this in our current rules. This would be new and we are proposing it —

COMMISSIONER FITZSIMONS: They can't just see somebody else and then be the agent. They can't have a front person for the permit and still be the agent.

MR. WOLF: That's right.

COMMISSIONER FITZSIMONS: Is that what you're saying?

MR. WOLF: That's correct. In fact, we have people that are agents on many, many breeder permits. They're in the business of moving deer for folks, and they're listed as agents on a lot of people's permits, and they're not the permittees.

The list of violations is identical. The rationale is the same. Our Whitetail Deer Advisory Committee endorsed this proposal with the same caveat, that we not be capricious about minor violations and holding grudges. They would like on the record that be very clear that that is the way we are directed to administer this program.

This proposal deals with tabling an application basically. Right now, our staff attorneys and general counsel advised us that the department already has some wide authority and latitude when it comes to issuing permit privileges, as many other agencies do. That has been challenged to some degree. The intent of this rule is to clarify that authority that we say we already have.

The proposal reads that the department may deny or delay the processing of a permit or a renewal if the applicant is a defendant in a prosecution for — the first thing I need to note is that we're asking for an amendment to strike the word "deny or." The previous rule dealt with that. We're only talking about delaying permit issuance, tabling it.

The list is the same. The bottom line is we're proposing this only apply to DMP permits and TTT permits, not breeder permits. The rationale is that when a person applies for a DMP or a TTT, they have no deer in their possession already. They have not purchased, they have not paid for, they don't have revenue tied up in a deer inventory. So we're restricting this. We're proposing this be restricted to DMP and TTT. We're talking about basically somebody who is a defendant in prosecution for, they not been convicted.

This proposal gave a level of discomfort to our Whitetail Deer Advisory Committee when we presented it. Also, the breeder user group is concerned about it and it's also addressed in the letter from the four state senators.

During this process and during this discussion, terminology like a lack of due process was used in this. Of course, I will demonstrate in a minute the proposed rules we have for review process that we have in place. We already have those for DMP and TTT, but they wanted their consternation to be voiced and conveyed to this Commission.

The recommendation was that if the Commission chose to proceed, then at a minimum what they would like to recommend is that bullet number 2 be removed. The rationale is that bullets 1 and 2 provide a clear nexus to the purpose of the permit, holding animals. The second one doesn't necessarily. That can be shooting deer from a road at night, hunting game animals without someone's permission, but they are not violations that necessarily deal with someone holding live animals in possession. So they offer this up as an alternative and wanted me to convey their level of discomfort with this proposal.

This particular proposal actually gave them even more discomfort. We developed it to address the directives of this Commission. Obviously, the part dealing with agent addresses a lot, but additionally we would propose that the department have the ability to refuse a permit if we think someone is applying on behalf of someone else who is not qualified to have that permit. The same thing, if you've been convicted, and you get your wife to apply, but there are still some activities that you could do — it's limited because you can't be the agent — but that was the intent of this.

I'd have to say in the comments on this, this one gave them the most heartache. They felt like there was extremely wide latitude, maybe not very specific in the way it was written. There's just a lot of questions about how the department would determine that we have reason to believe someone is applying on behalf of someone else. And so they wanted myself to convey their concern to this Commission.

The review process, we have a review process for DMPs and TTTs. As a result of some comments from the November meeting, we decided to add a review process for our scientific breeder permits also. It's identical. An applicant for a permit under the subchapter may request a review of a decision of the department to refuse or delay issuance of a permit or permit renewal.

There's a ten-day turnaround. In other words, when we notify someone that they're not getting a permit, they have ten days to challenge that and then we have ten days to respond. The decision of the review panel would be final. And then, we would report this on an annual basis to the Whitetail Deer Advisory Committee. In fact, at our meeting last week, Mitch Lockwood gave the report for last year's permit denials for the other permits.

The review panel would consist of the deputy executive director, the director of the Wildlife Division, and the Big Game Program director. Now, we received some comments at the Whitetail Deer Advisory Committee. There was a suggestion that we should consider adding third parties to this review process, not necessarily decision-making people, or not deferring any of our decision-making authority, but allow others to sit in to make sure it's a fair process and advise our review panel.

Obviously, this is a significant deviation from the proposed rules. So this Commission doesn't have the latitude to adopt anything like that, but Ann Bright advises me, as she has looked at our current rules, that we have the ability to do this on a voluntary basis right now.

We could invite people in, as long as we don't violate someone's confidentiality and we make sure that everyone has given permission for that, the party that's seeking the review. We could invite people to do that already. So it would be our suggestion that we do this on a trial basis, since we already have the authority, and then we can report back. Obviously, if you all direct us to go back and develop some rules to put in a rule, we can do that also.

Yes, sir?

COMMISSIONER HOLMES: Just to follow that up a little bit more, in the process of reviewing that decision, are you suggesting that this three-member panel does not have the right to bring in whatever resources they want?

MR. WOLF: No. What Ann is —

COMMISSIONER HOLMES: They do have that right?

MR. WOLF: Yes. What Ann is saying is we do. If we want to bring in other resources to, I guess, make it look like there's a fair process and it's not just the agency doing this — and it was suggested maybe members of the Whitetail Deer Advisory Committee, who would want to do that, could serve on this. Obviously, if we're talking about criminal investigations, the party would have to give permission for someone outside the agency to look at whatever information we are going to look at.

MR. BASS: Ned, I think that the feeling was the current process is if you're denied, if I'm denied, I have ten days to appeal. The department then has ten days to either uphold the previous decision or overturn it and these three people make the decision. There was some feeling that, gosh, isn't the department kind of grading their own paper here? I mean, are these people, aren't they the same people that denied it in the first place? Is that really a fair and impartial review?

So then it was, well, maybe a way to get around that perception would be to put some citizens on here rather than just department employees, either in official capacity — and we kind of talked about it and said, maybe it's unofficial, you don't have a vote, but you kind of get to observe the process and say, well, wait a minute, I think that was fair or it wasn't fair. It's a perception thing.

Now, in reality, in the last year, there were 28 TTT permittees with one denial, 70 DMPs, one denial, and 3,500 MLDPs with one denial, which was appealed through the judicial system and was upheld in court. So we're not talking about a lot.

COMMISSIONER HOLMES: Yes, we're not talking about a lot.

MR. BASS: We're not talking about a lot of activity of denials or appeals.

COMMISSIONER HOLMES: But the individual that has had the permit denied, what access to the committee do they have?

MR. WOLF: Well, they could submit in writing. We've actually, the one time we had a hearing here in Austin, they requested an in-person review. We invited them in here and they got a chance to state their case. Now, obviously, the point is when we look at the initial denial, we want to make sure we have strong information. Usually, I'm a part of that. We want to make sure there's solid reasons for denying that permit.

So the reality is if they come back to us with the same information, it may not mean anything, but they may have new information. If they have new information we weren't aware of, some other circumstances that we weren't aware of, that's what we're going to consider. What we hope is that our process is pretty tight up front. And so unless there's some information we just missed, the likelihood is we made a good decision to start with.

COMMISSIONER FITZSIMONS: What was the number of MLDPs, 3,500?

MR. BASS: It's roughly 3,500, give or take 50.

COMMISSIONER HOLMES: And it was one denied. Is that what you said?

MR. BASS: One denial.

COMMISSIONER HOLMES: We've probably talked about this more than it deserves.

VOICE: Yes.

COMMISSIONER FITZSIMONS: Well, that's okay. That's our custom. That's consistent with the policy of this Commission, to talk about things much more than they deserve.

MR. WOLF: May I proceed?

MR. BASS: The universe of scientific breeders is like 800 or 850 or something like that.

VOICE: Right.

MR. WOLF: The two more proposals, these are relatively simple. Basically, if the statutes or regs change and it causes someone to have to change their deer management plan, we're proposing to not consider it as a new application. The simple difference is it's $1,000 for a new application. If you change your plan, if it's a renewal, it's 600. If we change the rules, we don't think folks should have to pay the price for us changing the rules.

One clarification as a result of some recent litigation that the department was involved in, our recurrent rule was misinterpreted. So we want to rewrite this DMP rule to indicate that a DMP will not be issued unless the applicant's deer management plan has been approved by one of our employees. The misunderstanding in this, the way the person read it, is when our field biologist signs it, that we have to issue them a permit. Obviously, there are other statutory requirements, for instance, a $1,000 check that must go with it. The signature should compel us to issue the DMP. The record of that adoption was pretty clear back when this Commission did it several years ago.

That concludes my presentation. Obviously, I've requested a couple of staff amendments and then I've also made you all aware of recommendations from the Whitetail Deer Advisory Committee. I do want to remind you that Dr. Hillman is here. So if there's any disease-related questions, he's the expert.

COMMISSIONER FITZSIMONS: Yes. Dr. Hillman, would you mind joining us here because I have one or two questions that have to do with your expertise?

Don't leave, Clayton.

MR. WOLF: I'll be right here.

COMMISSIONER FITZSIMONS: All right. Doctor, good to see you again. Would you introduce yourself to the rest of the commissioners?

DR. HILLMAN: Thank you, Mr. Chairman. I'm Bob Hillman, the executive director of the Texas Animal Health Commission. I'm very pleased to be here today. At your pleasure, I'll do my best to answer whatever questions you may have.

COMMISSIONER FITZSIMONS: You saw some provisions in there having to do with qualified movement and concept I know you're familiar with. In simplest terms, is what we're doing here consistent with animal health regulations that you're trying to administer for domestic livestock?

DR. HILLMAN: Mr. Chairman, in great part, I believe they are consistent. We've had numerous discussions and one of our former employees, Dr. Ken Waldrup, served in concert with your staff on many committees to discuss CWD movement requirements, monitoring status, et cetera.

There are some basic differences and challenges. These are borne in our regulations or our statutory authorities. The Commission has authority to regulate wildlife native to the state of Texas, whitetail deer, mule deer, et cetera.

On the other hand, Texas Animal Health Commission has been given the responsibility to regulate those species that are not native, such as elk and red deer. So because of that difference in which we can regulate and which we cannot, and because your needs relative to movement and release of scientific breeder animals, are somewhat different than our disease control, there are probably going to be some subtle differences in your requirements versus ours.

Another issue that is going to face us as we go forward — and we visited with Clayton and his staff about this some time ago — USDA's national animal identification system standards, as we understand them, when fully implemented would consider captive whitetail deer to be livestock and would come under their national program standards.

COMMISSIONER FITZSIMONS: That's the new premise ID?

DR. HILLMAN: That's the new premise animal identification system.

COMMISSIONER FITZSIMONS: Okay.

DR. HILLMAN: It is likely that, as I would understand, currently their thinking would be that domestic cervidae would include those whitetailed deer that are privately held. So their standards will apply to whitetail deer. Our law would prohibit us from directly applying our standards to whitetail deer. So, therefore, the need for us to work with Commission staff to have something that's consistent and would be compatible with USDA's national standards as they bring it forward. From most of what I heard here today, that is the case.

COMMISSIONER FITZSIMONS: Okay. So these proposals are necessary for us to be more consistent with your program?

DR. HILLMAN: I would believe yes. There is an inconsistency in the unique number that you're talking about. That would not be a number that would be recognized under the new national system. The new national number is going to be a 15-digit number.

COMMISSIONER FITZSIMONS: So we would have to bring our regulations up to your standards?

DR. HILLMAN: That would be my guess.

COMMISSIONER FITZSIMONS: And there are diseases that go across species that you have jurisdiction over and we have jurisdiction over. Correct?

DR. HILLMAN: That is correct.

COMMISSIONER FITZSIMONS: So as a practical matter, it's necessary that our regulations be —

DR. HILLMAN: As close as we can get them.

COMMISSIONER FITZSIMONS: — as close as we can get them.

DR. HILLMAN: Mr. Chairman, we committed — actually, I'm a short-timer in Texas, back in Texas. I've been here almost three years. The working relationship that I saw upon arrival here between Texas Animal Health Commission staff and Parks and Wildlife Commission staff was extraordinary. I've been in states where there's a lot of fighting going back and forth between the natural resource agency and the animal health agency. I did not see that there and it's very commendable that that working relationship has been developed.

I think having that relationship that was a very good relationship in developing the CWD monitoring program that's currently in place. We've also worked together over the years with TB surveillance. We've also got some issues with fever ticks down on the border area with Mexico. All of these are issues that we work closely with your staff. I think we have a very commendable relationship and we continue to work to solve the problems.

COMMISSIONER FITZSIMONS: All right. So one part I missed in there was I'm familiar with the premise ID proposal that you have at the Animal Health Commission now.

DR. HILLMAN: Yes, sir.

COMMISSIONER FITZSIMONS: I read about in the livestock press. So my ranch will have to have a premise ID in July. Is that right?

DR. HILLMAN: You could actually get one now if you wanted to.

COMMISSIONER FITZSIMONS: Well, it's mandatory then.

DR. HILLMAN: It becomes mandatory July 1 —

COMMISSIONER FITZSIMONS: Right.

DR. HILLMAN: — if the Commission approves those rules at the February meeting.

COMMISSIONER FITZSIMONS: I have wild animals, which you don't have any jurisdiction over, and I have cattle and horses and dogs and that sort of thing. So I've got to have that premise ID. But if I had only a specific breeder pen, and no cattle, no horses, no domestic livestock, even though they have diseases that cross between those species, like tuberculosis, I would not have to have a premise ID?

DR. HILLMAN: Unless it was required of the Department of Parks and Wildlife, you would not have to have it.

COMMISSIONER FITZSIMONS: Unless we do that?

DR. HILLMAN: We would not have the authority specifically to require whitetail deer to do it unless we could do it for those herds that are monitored in the chronic wasting disease program. They're required to have a premise ID to be in a monitor status. We'd have to change the rules to do that. That's voluntary.

COMMISSIONER FITZSIMONS: So for this program to be compatible, we're going to have to add a premise ID requirement that is uniform with yours?

DR. HILLMAN: It would be my belief, Mr. Chairman, that as USDA brings the premise ID system online, that those scientific breeders would fall under that national regulation.

COMMISSIONER FITZSIMONS: And if you don't, there's no way you could trace back once you have an outbreak or a problem?

DR. HILLMAN: Right.

COMMISSIONER PARKER: So if it's coming, we just as well be right the first time?

COMMISSIONER FITZSIMONS: At least try.

MR. BASS: When will the national program roll out to where it would include ungulate or captive ungulates?

DR. HILLMAN: As the proposals are currently written, captive ungulates — and that's a catch-all term that USDA likes to use, they use captive cervidae — or classified as livestock. So they are included in the proposal today. In fact, there is a captive —

MR. BASS: So they're on the same timeline as other livestock?

DR. HILLMAN: They're on the same as other livestock.

MR. BASS: The timeline is July 1?

DR. HILLMAN: No, that's our state rule.

MR. BASS: Okay. At the federal level, the timeline is?

DR. HILLMAN: At the federal level, USDA published a strategic plan and a draft program standard last fall, last summer, that established a timeline of having voluntarily some 25 percent of all premises in the United States registered by mid-year 2006. It's proposed that all of them be registered by a year later, mid-July 2007. They have not yet developed a proposed rule to implement that and I don't know when that may come. I would anticipate that it's not going to happen as quickly as they had proposed in that draft document.

MR. BASS: Another question — the way that they drafted their catchall language, what about, does it impact wild deer or only captive?

DR. HILLMAN: Only captive. That's another point I think we need to make. You all are talking about a unique identifier for the place of liberation. I go back, Mr. Chairman, to your illustration. If you have a hunting ranch that only has whitetail deer, and you procure scientific breeder deer —

COMMISSIONER FITZSIMONS: Captive whitetail deer.

DR. HILLMAN: — to liberate on that place, then USDA's rules are not going to apply to that hunting-only, whitetail deer-only facility.

COMMISSIONER FITZSIMONS: Okay.

DR. HILLMAN: So —

COMMISSIONER FITZSIMONS: But the tuberculosis don't know the difference.

DR. HILLMAN: Tuberculosis comes in and we're going to have to apply our rule that says, if other animals have diseases transmittable to livestock, then we work with you all to do surveillance for those diseases.

COMMISSIONER FITZSIMONS: But that would undermine our TB status for the livestock industry, wouldn't it?

DR. HILLMAN: Unless we did surveillance in those species, yes.

COMMISSIONER FITZSIMONS: And that would impact the entire livestock industry?

DR. HILLMAN: It would impact, or could impact, the entire livestock industry in that USDA would require the state — that would include the state animal health agency and the state natural resource agency — to address the disease in the free ranging species. It doesn't specify how it be addressed, but it specifies that we do work together to address it.

COMMISSIONER HOLT: In the free ranging?

DR. HILLMAN: Free ranging.

COMMISSIONER HOLT: Now, you've got a can of worms.

DR. HILLMAN: It is a can of worms. Look at Michigan.

(All talking at once.)

COMMISSIONER FITZSIMONS: So what that means is then you just lost your TB status for your livestock?

DR. HILLMAN: It means practically that if we did find, Lord forbid, if we found TB in a group whitetail deer, that we would work with you all to do some surveillance in that area to determine what is the prevalence of that disease in that locale. Clearly we want to limit it to that locale and we'd have to work with you all in order to do that.

Do you do some harvest to try to limit the disease? If it's a high-fenced place, can you take some animals out and eliminate the disease? All those have to be considered as options with nothing a given that you will do it this way. It all has to be looked at in light of the circumstance.

COMMISSIONER PARKER: Let me ask you a question. Going back to that number, that numbering system, that 15-digit number, did I hear you say that this is coming in? It's going to begin taking effect this year?

DR. HILLMAN: No, sir. What takes effect this year under our proposed rules is registration of premises that have livestock, exotic livestock, poultry, and exotic fowl. Under our rules, that includes elk. The elk rule actually is already in place. Elk producers already are required to register their premises.

Premises that have livestock, beginning July 1, would be required to register that premises with the animal health commission. That premises number is a unique number, unique in the United States. It's assigned by a computer in Fort Collins, Colorado, so it's not duplicated anywhere. That number would be applied to that specific location. Now, that's the premises number.

The other part of the animal identification system is identification of the animal. The national animal identification plan calls for that individual animal number, at least for cattle and sheep and goats — and I believe will be applied to domestic cervidae — would be a 15-character number.

Now, for cattle, that's probably going to be a little round button RFID tag. The elk breeders requested that we use that same button tag. It's electronic so you can read it electronically. You do not necessarily have to put the animals in a squeeze chute or in a tight place to read them.

Now, one other situation, I think, where we differ somewhat from your rules is that I believe your current rules allow that that unique identifier be removed when those animals are liberated. This unique 15-character number is an official number and it would be illegal to remove that tag. You may lose it —

COMMISSIONER FITZSIMONS: That's your recommendation?

DR. HILLMAN: That's the law.

COMMISSIONER FITZSIMONS: That's the law and our law needs to be consistent.

DR. HILLMAN: Currently, it's illegal to remove a tag or identifying device that's been identified by USDA as an official identifying device. Your four-character number would not be considered by USDA to be an official identifying device —

COMMISSIONER FITZSIMONS: Okay.

DR. HILLMAN: — but if we went to, for whitetail deer, if it went to that 15-character number, then that's going to create an inconsistency if your scientific breeders want to remove those tags because it would be a violation of current USDA rules to remove those tags.

MR. BASS: So that's the law at the federal level?

DR. HILLMAN: That's current federal regulation.

COMMISSIONER HOLT: If you use that number.

MR. BASS: My understanding, and this may be inaccurate — correct me if I'm wrong — but my understanding is that the current state statute requires that the state identifying number — well, actually it says all visible tags and markings — be removed prior to liberation. It's not a department rule. It's in the enabling statute.

DR. HILLMAN: For scientific breeders?

MR. BASS: For scientific breeders. So there's theoretically then a conflict. Assuming that numbering system emerges, and there's a unified numbering system, there would be conflict between federal law and state law unless it's [inaudible].

COMMISSIONER HOLMES: But we're not proposing that today anyway?

MR. BASS: No, this is —

COMMISSIONER FITZSIMONS: No, we need to get that done though is what he's saying.

MR. BASS: This is what is coming.

(All talking at once.)

MR. COOK: Isn't there also tagging tags; it's basically negated. Is that technology there yet?

DR. HILLMAN: Mr. Cook, there is an electronic chip — and actually it's the same type of device that's put in the ear tag — that can be implanted in the animal. One of the challenges that we've had with that — and several of our livestock groups would like to use it — cervidae groups would like to use it — currently, FDA rules classify those implants as adulterants. Therefore, it can't be used in meat-producing animals.

So whether that would apply to whitetail deer or not, under the circumstance we're discussing, I'm not sure. There is some work being done by the sheep industry and the goat industry to try to get that changed. Can we identify a location we can put those devices on the animal or in the animal and that location automatically be discarded in end processing? Now, if we can do that, then we can use the implantable device and it eliminates the concern.

COMMISSIONER FITZSIMONS: I'm trying to sum it up. Tell us if we've got to —

VOICE: I want to hear this.

COMMISSIONER FITZSIMONS: — whether domestic or native, captive cervidae have to be treated the same way from an animal health standpoint for us to have a credible system.

DR. HILLMAN: Mr. Chairman, let me say it a little differently if I may.

COMMISSIONER FITZSIMONS: All right.

DR. HILLMAN: It's going to be some period of time before USDA's program is fully implemented. By period of time, we're probably talking about two, three, four years. So I would hope not to rush into doing something rash until we know for sure where this is going to go.

It would be my understanding that the standards, at least as they're currently envisioned, as I understand them from USDA, would apply equally to the animals we regulate plus the animals you regulate. Therefore, they should be consistent.

COMMISSIONER FITZSIMONS: All right.

COMMISSIONER HOLMES: Do you believe the changes that we've been discussing today would make our regulations more consistent with yours?

DR. HILLMAN: Mr. Commissioner, I read through your proposed changes some time ago. I did not read them, or have not read them, recently. So I'm not sure I can answer that. My understanding —

COMMISSIONER FITZSIMONS: For instance, qualified movement. Qualified movement, does that make it more consistent?

DR. HILLMAN: I think it probably does. My staff has been telling me that what you all are proposing is certainly okay. So from that perspective, I think it would be consistent, yes.

COMMISSIONER HOLMES: It seems to me that in listening to this discussion that the proposed changes are a very small step down a very long road and we've got to start at some point.

DR. HILLMAN: Both livestock and domestic cervidae.

COMMISSIONER HOLT: There's got to be an education process within the breeders. I bet they don't know anything about this.

COMMISSIONER MONTGOMERY: When you talked about this at the last meeting, you talked about whether what we're doing is adequate for both protection and prevention in the event that there is an occurrence. I'm curious to hear from you, Bob, if you think this is adequate for proper detection and then prevention in the event there is an occurrence. If not, what other measures we better be thinking about? We still need to spend a lot of time on identification.

DR. HILLMAN: I think that what Clayton laid out as a proposal is certainly consistent with what we're trying to do with elk from a CWD standpoint. The identification issue and removing tags, or removing identification devices, clearly you've lost the ability to take that animal back to a source if that animal is found later to be infected. So you're not going to be able to get it back to the source because you're not going to have identification to do that, but I think the regulations appear to me to be very well done.

COMMISSIONER PARKER: Yet, to me, from what I've heard you say, a very important item for us to be thinking about is to, if this is coming down the road, we just as well have our numbering system consistent with what numbering system is coming down the road. We don't need to be doing a three-digit number when we know a 15-digit number is coming down in three or four years.

MR. COOK: But we're not certain on that.

MR. BASS: We're not —

MR. COOK: That's what Dr. Hillman I think is saying.

MR. BASS: We're not certain it's 15 and the current system we use, obviously a 15-digit tag has to be much bigger than a whatever we use tag.

DR. HILLMAN: It's just different.

MR. BASS: But if it's visible rather than being read by a reader, it's not an RFID.

DR. HILLMAN: It's not real big.

MR. BASS: If it's an RFID, but currently I don't think our regs say something you can read visibly. Our regs don't currently say RFID.

DR. HILLMAN: It's smaller in diameter than that.

MR. BASS: I understand, but that has to be read by a reader. Right?

DR. HILLMAN: Well, the tag will have an electronic chip —

MR. BASS: Electronic.

DR. HILLMAN: — and the number will also be written on the tag.

MR. BASS: Visible as well. A second quirk to all of this is our current regs also stipulate that there is a tattoo in the ear, which is not a visible means of ID because obviously you can't remove it when you liberate the deer. Even with the amount of characters we're currently putting in there, even a good applicator has some trouble consistently having a legible tattoo, you know, 100 percent of the time. So it's —

COMMISSIONER PARKER: I'd like to —

MR. BASS: — the current system is going to have to evolve, but we just don't know the way.

COMMISSIONER PARKER: I'm just trying to get away from double work.

COMMISSIONER HOLMES: It just doesn't seem to me that we're in a place at this point in time to go to a 15-digit number. I mean, I think we've got to take these things in steps. It's going to be evolving.

COMMISSIONER FITZSIMONS: The premise ID is right in front of us though.

COMMISSIONER HOLMES: It's right in front of us.

COMMISSIONER FITZSIMONS: We need to address that.

DR. HILLMAN: The premise ID part, I think probably you could do pretty easily because you're already requiring a permit for those places. You're already assigning some number to them. I'm sure that part would probably not be very difficult to do at all.

COMMISSIONER HOLMES: Yes, it's about 90 percent there anyway.

DR. HILLMAN: Yes, but the other part, I guess what I would suggest, Mr. Chairman, there is a national domestic cervidae animal identification working group. I would suggest that you all monitor the activity of that working group and we can get Clayton the information. In fact, we've got several cervidae producers in Texas that are on that working group. That's going to be the best way to keep up with the progress and the recommendations for cervidae that are going to go forward to USDA.

COMMISSIONER FITZSIMONS: That's domestic cervidae?

DR. HILLMAN: Yes.

COMMISSIONER FITZSIMONS: And that would be a working group in the U.S. Animal Health Association?

DR. HILLMAN: No, it's a working group that was established by USDA about two years ago. Well, actually, there's a number of different working groups they started about two years ago. The cervidae one is about a year old. We can get Clayton the information about that working group, and the chairman, and the ability to monitor their progress. We'd be happy as well, as things move along, to provide input to you.

COMMISSIONER FITZSIMONS: Sure. Any other questions for Dr. Hillman?

(No response.)

COMMISSIONER FITZSIMONS: Thank you, I guess.

DR. HILLMAN: Sorry to bring you bad news.

COMMISSIONER FITZSIMONS: I guess I'd rather know the truth than be guessing.

COMMISSIONER HOLT: Yes, don't shoot the messenger.

COMMISSIONER FITZSIMONS: Yes. Thank you, Dr. Hillman. I really appreciate the work —

DR. HILLMAN: Thank you.

COMMISSIONER FITZSIMONS: — especially your commission and your chairman.

Again, that's an area that, Clayton, I think we need to get to the point here. We have a request by four senators to postpone, I believe is correct, not —

MR. WOLF: That's correct. I had one point, some questions for Dr. Hillman I think that will clarify some things of what do our adoptions this time do. Conceptually what we have proposed provides at least as much information as the national animal ID system. We've got the new database set up, ready to accept premise ID numbers and RFID numbers. So it's all in place because they advised us this was coming.

We require all that. So the only — if these rules are adopted, actually what we would require is at least as much as the Feds require, except we've just got to figure out how to put that premise ID number there, and how to get that RFID number, what the official RFID number will be. The database is being designed to handle all that. In our reporting that I presented to you will be designed to handle that because we'll be tracking these animal movements.

COMMISSIONER FITZSIMONS: And the legislative change that Chairman Bass mentioned, which is they've got to change the law about removal on liberated or the whole thing's for nothing.

MR. BASS: That's right. They'll just say you can't move it.

COMMISSIONER FITZSIMONS: Yes, that shuts the whole program down.

MR. WOLF: One other request I would like to make, embedded in the rules we have the effective dates for disease monitoring. The only other thing we'd request is whatever rules are adopted associated with the scientific breeder permit, that they become effective July 1 because that's when the new permit period would begin, and that way we could have a smooth transition, new permit period, new rules.

COMMISSIONER FITZSIMONS: All right. Well, we have this request for postponement. If we were to postpone, could you still meet that deadline if we went to April meeting —

MR. WOLF: Yes, sir.

COMMISSIONER FITZSIMONS: — to pass this? You could?

MR. WOLF: Depending on, I guess, which items we're talking about.

COMMISSIONER FITZSIMONS: The ones that need to be by July 1.

MR. WOLF: Right. The permit denial provisions, the unique number, and the fees, if we tabled all of those and came back in April, or May, either one, we still would have time to implement those rules in time. As long as we get the new permit date adopted that's July 1, then what our hope is, is that whatever rules we change or tweak in the interim, we could have them implemented July 1.

COMMISSIONER PARKER: This does not require public comment?

COMMISSIONER FITZSIMONS: It's already been, hasn't it?

MR. WOLF: Yes, sir.

COMMISSIONER FITZSIMONS: We already did it. We were putting it on the agenda.

COMMISSIONER PARKER: But I mean, this delay does not require a —

COMMISSIONER FITZSIMONS: Is Ann still in there? If you table it, you go straight back to agenda in May or April?

COMMISSIONER MONTGOMERY: No, it would have to go back through public comment.

MS. BRIGHT: There are several options. Once we propose a rule, it's pretty much good for six months. So you have six months after it was proposed and these were proposed on December 23. So you've got until July, I guess June.

COMMISSIONER FITZSIMONS: June.

COMMISSIONER HOLMES: I don't see much need to postpone it myself, Mr. Chairman.

COMMISSIONER FITZSIMONS: Well, I think there's a — you know, the request is based on — and Chairman Bass and I have had discussions with one of the senators that there seems to be a lack of information or understanding of some of these issues. I need to wear them out with information, I'm sure.

MR. WOLF: I've got a lot.

COMMISSIONER FITZSIMONS: Yes. I take them at their word. If they're sincerely interested in this, by golly, we can give you lots of information about this. It's pretty serious stuff.

COMMISSIONER HOLMES: Have we responded to their letter?

COMMISSIONER FITZSIMONS: Not in writing.

COMMISSIONER HOLT: January 23 is the day that we just got it.

MR. COOK: I was listening to you a while ago and I want to be sure the commissioners understand. If we postpone the entire packet until the early April Commission meeting, nothing is really lost timing-wise.

MR. WOLF: Our disease-monitoring rules have an effective date that starts, at least identifying the period that they would be evaluated on, starts April 1 of this year. And so if we could construct this where, if the Commission chose to adopt all those non-contentious issues — that's kind of the way I segregated that — and adopt that, and table or hold off on the rest, that would allow us to make sure that we have our disease issues going.

The other thing is these transfer permits, and the other documents that we're working on, we're going with some assumptions that we know the rules. We're having a lot of meetings right now, trying to design the forms and the required information. If we postpone that, then that kind of stalls that process.

COMMISSIONER FITZSIMONS: I'll tell you what. It seems to me that basically with the gravity of what we've just learned on the disease side is that those who are interested need to be informed of that. I wouldn't, I'd say all or nothing. We either put it on the agenda or we table it all because these disease issues are a big part of why we need to get serious about what we're doing.

COMMISSIONER HOLMES: If it's all or none, I think it's all.

COMMISSIONER FITZSIMONS: Any other thoughts other than that?

COMMISSIONER PARKER: I'm with Ned.

COMMISSIONER FITZSIMONS: We do have a formal request from the four senators to postpone. We've been told that we can afford to postpone one more time. Now, remember, we've already postponed this before.

COMMISSIONER BROWN: I don't think we need to alienate four senators. That's my personal opinion. I would vote to postpone it.

COMMISSIONER FITZSIMONS: Okay.

MR. WOLF: And I'd like to clarify that the letter from the senators clearly indicates that parts of these rules, their constituents want to see go forward. And so that letter also provides for that delineation.

COMMISSIONER HOLMES: So how do you bifurcate that? I mean, is that possible?

MR. WOLF: It's not tough to do.

COMMISSIONER HOLT: You can lay it out that way.

COMMISSIONER FITZSIMONS: I would not lose the force of the gravity of these animal health issues. I think it's got to be looked at in totality.

COMMISSIONER HOLT: And explain to them why.

COMMISSIONER FITZSIMONS: Yes, and explain the totality.

COMMISSIONER HOLMES: You would try to postpone all of it so you have the momentum to pass it all.

COMMISSIONER FITZSIMONS: Well, I don't know — listen, I don't expect anybody, a senator or their staff to be up to speed on all this. This is complicated stuff and we're learning a lot of things today. Certainly, Dr. Hillman's given us a whole new perspective. It seems to me that we should give them the benefit of what we've learned and certainly explain that the Whitetail Deer Advisory Committee, this broad cross-section of people, you know, they've reviewed this and they recommend it. I think that they're, as a courtesy, they're entitled to the information. And why we're recommending it be done.

COMMISSIONER MONTGOMERY: I think it's important that the danger of us doing anything is getting a backlash at some point, setting ourselves back instead of moving forward. So the communication issue is critical. I think we need to send the signal, we have a duty to take these things very seriously and lay very serious groundwork because the risk of being soft on it and doing it wrong is a huge impact on the economics of this state, both in the cattle business and in deer leasing and deer hunting. We cannot shirk from doing that and doing it very firmly, very wisely, and very affirmatively.

COMMISSIONER FITZSIMONS: I agree. We're affecting the time of the people of the Whitetail Deer Advisory Committee who have taken the time to do this. I mean, if we're going to ignore them, why do it?

COMMISSIONER PARKER: Lee?

COMMISSIONER MONTGOMERY: Yes, I'd say, like Robert says, take the time to —

COMMISSIONER PARKER: Lee, what do you think?

MR. BASS: I'm sorry. Question?

COMMISSIONER PARKER: What do you think?

MR. BASS: Regarding which?

COMMISSIONER PARKER: What we're talking about. What do you think I'm talking about?

MR. BASS: Postponing, that aspect?

COMMISSIONER PARKER: Yes.

MR. BASS: I don't see any huge downside in postponing from a regulatory or implementation point of view. I think what we're told is, it can go one meeting and still get it all effective when it would have been effective if you post it today. I don't really see that as a negative.

I personally would not try to bifurcate it. I would just do it as a package because when you start talking to senators or whatever, you know, their questions wander into priority past, what have you gained?

COMMISSIONER HOLMES: We've discussed that standpoint —

COMMISSIONER FITZSIMONS: Ned.

COMMISSIONER HOLMES: Mr. Chairman, I think you have kind of the authority to put something off until the next meeting anyway.

COMMISSIONER FITZSIMONS: I do, but I want to make your — disagreement with you clear.

COMMISSIONER HOLMES: To me, this is critical and I would absolutely expect it to come back the next meeting.

COMMISSIONER FITZSIMONS: All right, sir.

COMMISSIONER FRIEDKIN: It simplifies communication to treat it as a basket and, as Clayton said, there's no real risk in waiting from a timing standpoint. That would be the direction I'd be oriented toward.

COMMISSIONER PARKER: Are you two happy?

MR. WOLF: Well, I guess the question, I hope that Ann is trying to get me to ask here, is the question of whether we simply table or we republish because obviously, if some of the comments we get are significant —

COMMISSIONER FITZSIMONS: Right.

MR. WOLF: — then we have a lack —

COMMISSIONER FITZSIMONS: Well, if you table, there's not a whole new process. It's just, all we've been asked to do is take the time to educate the senators and their staff on what we have all learned.

MR. BASS: — and communicate —

COMMISSIONER FITZSIMONS: And communicate.

COMMISSIONER HOLT: — which is what we absolutely must do.

COMMISSIONER FITZSIMONS: Is that correct? That's how I read the letter.

MR. WOLF: That's what the letter said, yes, sir.

MR. BASS: I think if we republish, you confuse matters.

MS. BRIGHT: Right. It would confuse matters. The only reason that would be necessary is if we are going to make some significant changes to any of these.

COMMISSIONER FITZSIMONS: No, I think that's at the next cycle when we start figuring out more about the disease issue.

VOICE: Right.

COMMISSIONER FITZSIMONS: So if we table, it's the rule as published, good until June, just brought up again in May.

VOICE: April.

COMMISSIONER FITZSIMONS: April, I'm sorry.

VOICE: April.

COMMISSIONER FITZSIMONS: April.

COMMISSIONER BROWN: Mr. Chairman, you can do that on your own. Right?

COMMISSIONER FITZSIMONS: That's what I get paid for.

COMMISSIONER BROWN: All the big bucks.

MR. BASS: I guess in a larger scheme, you know, what Mr. Parker asked what do I think. This is, I think, very important, one, because there are a significant number of people involved in this industry, and it really has become an industry. Secondly, perspective, we're talking in scientific breeder facilities what is roughly 1 percent, no more than 1 percent, of the whitetail deer in the state of Texas.

COMMISSIONER HOLT: Not even 1 percent.

MR. BASS: It's, call it 3.5 million whitetail deer in Texas and there are, you know, somewhere between 30,000 and 40,000 deer in these facilities. So it's 1 percent for conversation purposes anyway. But, because of the disease issues — and it's not just CWD.

I think there are lots of deer diseases that we know are prevalent in Texas and there has been the potential impact on the livestock industry, the industries that are built up around the wild deer, et cetera. I think we have to pay attention to this.

That's why my committee spent basically our entire meeting last week on scientific breeder issues and agreed that our next meeting would be scientific breeder issues. We'll probably have four to five meetings this year. So 1 percent of the deer and we're already at somewhere between a third and a half of our meeting time is going to be on nothing but scientific breeder deer. The nexus of those deer versus the wild deer, and potential disease issues, and whatever else comes with that, I think is why the people on my committee are willing to do that.

COMMISSIONER FITZSIMONS: Your objection is noted and we will table until April.

Anything else?

MR. WOLF: I'll save my slides.

COMMISSIONER FITZSIMONS: Save your slides. They don't spoil, do they? They'll still be good. Thank you.

Anything else to come before the Regulations Committee?

(No response.)

COMMISSIONER FITZSIMONS: We're adjourned. We're regulated.

(Whereupon, at 4:00 p.m., the meeting was adjourned.)

C E R T I F I C A T E

MEETING OF: Texas Parks and Wildlife Commission
Regulations Committee

LOCATION: Austin, Texas

DATE: January 25, 2006

I do hereby certify that the foregoing pages, numbers 1 through 127127, 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.

2/08/2006

(Transcriber) (Date)


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