TITLE 31.NATURAL RESOURCES AND CONSERVATION

Part 2. TEXAS PARKS AND WILDLIFE DEPARTMENT

Chapter 55. LAW ENFORCEMENT

Subchapter J. MANDATORY HUNTER EDUCATION PROGRAM

The Texas Parks and Wildlife Commission adopts the repeal of §55.609 and an amendment to §55.607, concerning the department’s regulations governing mandatory hunter education, without changes to the proposed text as published in the March 5, 2004, issue of the Texas Register (29 TexReg 2234).

Under the provisions of Texas Parks and Wildlife Code, §§62.014, and 31 TAC Chapter 55, Subchapter J, a person must complete a mandatory hunter education program by the time they are 17 years of age in order to hunt in this state. The statute and 31 TAC Chapter 55, Subchapter J, further provide that a person 16 years of age or younger who does not possess a certificate of hunter education may hunt if accompanied by a licensed hunter 17 years of age or older. Research indicates that approximately 2% of potential hunters are deterred by hunter education requirements from trying the hunting experience. The amendment as adopted would allow a person 17 years of age or older who has not completed a hunter education program to defer completion of a hunter education program for up to one year, provided that when the person is hunting, he or she is accompanied by a person 17 years of age or older who has passed a hunter education course or is otherwise exempt (i.e., born prior to September 2, 1971) from the hunter education requirement. The intent of the department is to create a mechanism for adults who have not been exposed to hunting to explore the hunting experience with a licensed hunter who has completed the required hunter education course.

The repeal of §55.609, concerning Hunter Education Fees, is necessary because another rulemaking will transfer the provisions of the section to Chapter 53 (Finance).

The amendment to §55.607, concerning Other Non-certified Persons, would create a one-time mechanism that would allow a person who otherwise would be required to have completed a mandatory hunter education course to go hunting under certain conditions during a specific license year after partially prepaying the fee for taking the course. Persons seeking to defer course attendance would prepay $10 at the time of license purchase and pay $5 at the time of course enrollment. The amendment also stipulates that persons who have been convicted of or have received deferred adjudication for violation of the mandatory hunter education requirement are prohibited from applying for a deferral, which is necessary because the department does not intend to furnish a way for persons who have violated the mandatory hunter education requirement to avoid prosecution.

The department received one comment opposed to the implementation of a fee for the hunter education deferral option. The commenter stated that the department is simply using the hunter education deferral option to raise additional revenue. The department disagrees with the comment and responds that the fee paid for the hunter education deferral option is used to recoup the department’s administrative costs to provide the deferral option. The primary cost incurred by the department in implementing the deferred hunter education option is the programming cost of modifying the department’s electronic point-of-sale system. The department anticipates that the cost of implementation will be not exceed the revenue generated as a result of the fee. There will also be a recurring annual cost of associated with record maintenance and license system integrity (i.e., keeping people from participating more than once, preventing violators from participation, etc.). The department also notes that the deferral option is not mandatory; if a person would prefer to pay the $10 fee for certification, they can take a hunter education course prior to going hunting. No changes were made as a result of the comment.

The department received one comment suggesting that the department waive all or part of the requirement for the hunter education course for anyone who has completed six months of initial active duty training in the military services, stating that military training involves far more firearm safety training than the Hunter Education course does. The department disagrees with the comment and responds that hunter education covers more than firearms safety and involves subject matter that is not covered in military training, such as hunter ethics and responsibilities, wildlife management, conservation, and the federal funding mechanisms that support wildlife management and conservation. No changes were made as a result of the comment.

One commenter opposed adoption of the rule on the basis that the department has no way to enforce the ‘normal voice distance’ requirement, which requires hunters who have not completed a hunter education course to stay within ‘normal voice distance’ of someone who has completed a hunter education course. The department disagrees and responds that the ‘normal voice distance" requirement is a current requirement, not a new one, and that the department’s Law Enforcement Division believes that it is quite enforceable as written. No changes were made as a result of the comment.

The department received one comment requesting that the rules be applicable only to nonresident hunters, who should also be required to provide proof of licensure in their home state. The department disagrees with the comment and responds that Texas residents were envisioned as the main beneficiaries and most numerous potential users of the hunter education deferral option, and that restricting the availability of the option to nonresidents would be counterproductive because it would offer nonresidents an option not enjoyed by Texas residents. No changes were made as a result of the comment.

One commenter stated that a person who receives a hunter education deferral option and attempts to do so again should be fined. The department disagrees with the comment and responds that the implementation of the hunter education deferral option will include measures to prevent any person from receiving more than one deferral. No changes were made as a result of the comment.

One commenter opposed adoption of the rules as proposed and stated that hunter education should be about safety, not money. The department could not agree more that hunter education should be about safety, but disagrees that the rules as adopted are motivated by the prospect of financial gain. The rules are intended to provide a mechanism to recruit new participants to hunting by allowing first-time hunters to enjoy the hunting experience in the immediate company of a licensed hunter, which is already permitted by law for persons under the age of 17. No changes were made as a result of the comment.

One commenter opposed adoption of the rules as proposed and stated that the Hunter Education Program should not be compromised by allowing deferrals. The commenter did not elaborate. The agency disagrees with the comment and responds that rules as adopted are not a compromise; they simply extend a current provision (the conditional and temporary privilege of hunting without having completed a hunter education course) to a greater number of people. No changes were made as a result of the comment.

One commenter opposed adoption of the proposed rules and stated that all hunters should have the basic knowledge provided in the course before entering the woods with a loaded weapon. The department understands and shares the commenter’s concern about proper preparation, but disagrees with the comment and responds that by statute, a person under 17 may hunt without having completed a hunter education course provided that person is accompanied by a person who is licensed to hunt. The rules as adopted simply create another class of user that may hunt without having completed a hunter education course, provided there is an accompanying hunter who has completed the course or is exempt from the hunter education requirement. No changes were made as a result of the comment.

One commenter stated that hunter education should remain mandatory and that the department should expand opportunities for completing the hunter education course. The department agrees with the comment. No changes were made as a result of the comment.

The department received 36 comments opposing adoption of the proposed rules on the basis of concerns about safety, but the comments did not articulate specific reasons for that concern. The department responds that it is committed to providing hunters in this state with the best and most efficacious hunter education programs possible. The department disagrees with the idea that the rules as adopted in any way compromise the safety of hunters or bystanders. The rules as amended would allow persons who have not completed a hunter education course to hunt, but only when accompanied by a person who has completed a hunter education course (or is exempt), and only if that person is within normal voice range. Since persons under 17 are already permitted to do this, the department does not believe that allowing additional persons over the age of 17 to do it would constitute a risk to public safety. No changes were made as a result of the comments.

The department received 145 comments supporting adoption of the proposed rules.

31 TAC §55.607

The amendment is adopted under the authority of Parks and Wildlife Code, §62.014, which authorizes the department to adopt rules necessary to implement the mandatory hunter education program and to charge a fee not to exceed $15 to defray administrative costs.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on May 21, 2004.

TRD-200403478

Gene McCarty

Chief of Staff

Texas Parks and Wildlife Department

Effective date: June 10, 2004

Proposal publication date: March 5, 2004

For further information, please call: (512) 389-4775

31 TAC §55.609

The repeal is adopted under the authority of Parks and Wildlife Code, §62.014, which authorizes the department to adopt rules necessary to implement the mandatory hunter education program and to charge a fee not to exceed $15 to defray administrative costs.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on May 21, 2004.

TRD-200403477

Gene McCarty

Chief of Staff

Texas Parks and Wildlife Department

Effective date: June 10, 2004

Proposal publication date: March 5, 2004

For further information, please call: (512) 389-4775

Chapter 58. OYSTERS AND SHRIMP

Subchapter A. STATEWIDE OYSTER FISHERY PROCLAMATION

31 TAC §§58.22, 58.23, 58.40, 58.50, 58.60

The Texas Parks and Wildlife Commission adopts amendments to §58.22, concerning Commercial Fishing; §58.23, concerning Non-Commercial (Recreational) Fishing; §58.40, concerning Oyster Transplant Permits; §58.50, concerning Oyster Harvest Permits; and §58.60, concerning Transplant and Harvest Permit Cancellation. The amendment to §58.40 is adopted with changes to the proposed text as published in the March 5, 2004, issue of the Texas Register (29 TexReg 2235). The amendments to §§58.22, 58.23, 58.50, and 58.60 are adopted without changes and will not be republished. The change to §58.40 alters subsection (b)(8)(A) to replace the word ‘transport’ with the word ‘transplant.’ Although the proposed language is enforceable as published (since oysters could not be transplanted without transporting them to the transplant site), the activity to which they are ultimately subjected is, technically, transplantation.

Prior to the adoption of these rules, it was unlawful to transplant oysters from restricted waters to a private lease or subsequently harvest oysters from a private lease unless the appropriate permits had been issued and the boundaries of the lease clearly marked. Difficulties of enforcing the boat allocation and the cost to the department of boundary inspection prior to permit issuance, as well as other administrative issues, were discussed at a recent Oyster Advisory Committee meeting and the rules as adopted reflect that discussion.  The rules as adopted affect the private lease component of the oyster fishery by: a) reducing the time for processing of applications, b) clarifying reporting requirements; c) clarifying that the number of vessels are part of a transplant permit, and d) clarifying that permitted vessels must have a permit on board the vessel when operating. The other aspect of the rules as adopted allows for both the recreational and commercial harvest of oysters by hand.

The administrative lead time that historically was needed between application for and issuance of permits has been significantly reduced through the use of word processors. In addition, the elimination of the requirement for monthly inspection of each lease boundary marker allows for more streamlined application processing.

Also, the number of boats allowed in restricted waters for oyster transplanting was determined through an informal consent arrangement. The informality was possible because very few people were in this portion of the fishery. However, equitable access to the resource had become an issue in recent years.

In order to maintain a reasonable and equitable allocation of transplant boats between leases, the amendments function to allow the department to designate the total number of boats that may be used for transplanting and then equitably allocate those boats among leases. However, boat allocations may be voluntarily transferred between leases as long as those transfers are completed before transplanting permits are issued for those leases. In addition to the reduction in the time required to process an application the due date of transplant/harvest reports is clarified. The department’s requirement of inspecting lease boundary markers monthly is proposed to be removed because boundary marking is required by statute and as part of the lease and failing to mark lease boundaries is a violation by rule. Law enforcement personnel would still be free to inspect those markers, but inspecting all lease boundaries prior to issuing harvest and transplant permits will not be required. And finally, enforcement of permit conditions is enhanced by requiring the permit to be available for inspection on a vessel during all permitted activities. The rules adopted also provide for a five calendar-day cancellation of a permit for violating this provision.

Also, it is not clear that fishermen taking oysters for commercial or personal use may do so using non-mechanical means. The rules as adopted make it clear that oysters may be taken by non-mechanical means.

The rules will function by clarifying reporting requirements; clarifying the number of vessels that are part of a transplant permit, clarifying that permitted vessels must have a permit on board the vessel when operating, and by allowing the recreational and commercial harvest of oysters by hand.

The department received no comments concerning adoption of the proposed rules.

The amendments are adopted under Parks and Wildlife Code, §61.052, which requires the commission to regulate the means, methods, places, and times in which it is lawful to hunt, take or possess aquatic animal life; Chapter 76, Subchapters B and C, which authorize the commission to regulate, permit, and license the operation of private oyster leases; and §76.301, which authorizes the commission to regulate the taking, possession, purchase and sale of oysters.

§58.40.Oyster Transplant Permits.

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

(b) Oyster Transplant Application.

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

(A) oyster lease number;

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

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

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

(E) beginning and ending dates of transplant operations.

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

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

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

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

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

(7) A transplant permit will not be issued to any leaseholder who has not paid any rental, transfer, sale, renewal or late penalty fees that are owed to the department.

(8) The number of boats that may be allocated to a lease for transplanting oysters shall be based on:

(A) the total number of boats that the department determines may be used to transplant oysters during that specific season, and

(B) the total number of active leases during that season.

(9) Boat allocations may be transferred between leases so long as those transfers occur before Private Oyster Transplant Permits are issued for those specific leases and must be identified and included on the transplant permit request.

(c) Oyster Transplant Season and Times.

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

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

(3) No transplanting will be permitted on Saturdays, Sundays, major holidays, or on the same days that harvest operations are permitted.

(d) Transplant Restrictions.

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

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

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

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

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

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

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

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

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

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

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

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

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

(e) Reporting Requirement. Weekly transplant reports must be prepared by the permittee and submitted to the department each Monday following the week of transplant.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on May 21, 2004.

TRD-200403479

Gene McCarty

Chief of Staff

Texas Parks and Wildlife Department

Effective date: June 10, 2004

Proposal publication date: March 5, 2004

For further information, please call: (512) 389-4775