PART 2. TEXAS PARKS AND WILDLIFE DEPARTMENT
SUBCHAPTER A. FEES
The Texas Parks and Wildlife Department (the department) proposes amendments to §§53.10, 53.14 - 53.17, and 53.30 and repeal of §53.18, concerning Fees. The amendments are necessary as a result of the department's review of its regulations under the provisions of Government Code, §2001.039, which requires a state agency to review each of its regulations no less frequently than every four years and to readopt, adopt with changes, or repeal each rule as a result of the review.
The proposed amendment to §53.10, concerning Public Hunting and Fishing Permits and Fees, would add new §53.10(a)(5) to relocate the fee for the mentored hunting permit from current §53.17(c). The amendment is necessary in order to ensure that all fees affecting public hunting permits are located in the same section.
The proposed amendment to §53.14, concerning Deer Management and Removal Permits, would eliminate subsection (b) because the Trap, Transport, and Transplant permit is not restricted to deer. The contents of subsection (b) are being relocated to §53.15, concerning Miscellaneous Fisheries and Wildlife Licenses and Permits. The proposed amendment also updates terminology to reflect legislative changes. House Bill 1308, enacted by the 80th Texas Legislature, amended Parks and Wildlife Code, Chapter 43, Subchapter L, to change the term "scientific breeder" to "deer breeder."
The proposed amendment to §53.15, concerning Miscellaneous Fisheries and Wildlife Licenses and Permits, would add a new subsection (a) to contain the fees associated with the Trap, Transport, and Transplant Permit, which is being relocated from §53.14, concerning Deer Management and Removal Permits. The amendment is necessary because the Trap, Transport, and Transplant permit is not restricted to deer.
The proposed amendment to §53.16, concerning Vessel, Motor, and Marine Licensing Fees, would incorporate the contents of current §53.18, which is being proposed for repeal. The proposed amendment also would eliminate current §53.16(d)(1) which has expired on its own terms and is no longer necessary.
The proposed amendment to §53.17, concerning Miscellaneous Fees, would remove current subsection (c), which is being relocated to §53.10, concerning Public Hunting and Fishing Permits and Fees. The proposed amendment is necessary to locate all fees for public hunting permits in a single section.
The proposed amendment to §53.30, concerning Facility Admissions and Fees, would nonsubstantively redesignate the fees listed in paragraph (1) in order to make the structure of the rule consistent with other rules.
The proposed repeal of §53.18, concerning Other Fees, is necessary because the contents of §53.18 are proposed for relocation to §53.16, concerning Vessel, Motor, and Marine Licensing Fees.
Ms. Julie Horsley, Director of Policy and Analysis, has determined that for each of the first five years the rules as proposed are in effect, there will be no fiscal implications to state or local government as a result of enforcing or administering the rules.
Ms. Horsley also has determined that for each of the first five years the rules as proposed are in effect, the public benefit anticipated as a result of enforcing or administering the rules as proposed will be clearer, more accurate, and more intuitively organized rules prescribing fee amounts.
Under the provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses and micro-businesses. The department has determined that there will be no direct economic effect on small or micro-businesses or persons required to comply as a result of the proposed rules. The rules would not compel or mandate any action on the part of any entity, including small businesses or microbusinesses. Accordingly, the department has not prepared a regulatory flexibility analysis under Government Code, Chapter 2006, for those proposed rules.
The department has not drafted a local employment impact statement under the Administrative Procedures Act, §2001.022, as the agency has determined that the rules as proposed will not impact local economies.
The department has determined that Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rules.
The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rules.
Comments on the proposed rules may be submitted to Julie Horsley, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4913, e-mail: julie.horsley@tpwd.state.tx.us.
DIVISION 1. LICENSE, PERMIT, AND BOAT AND MOTOR FEES
The amendments are proposed under Parks and Wildlife Code, §11.027, which authorizes the commission to establish and provide for the collection of a fee to cover costs associated with the review of an application for a permit required by the code, to set and charge a fee for the use of a credit card to pay a fee assessed by the department in an amount reasonable and necessary to reimburse the department for the costs involved in the use of the card, and to establish and provide for the collection of a fee for entering, reserving, or using a facility or property owned or managed by the department; §31.0412, which authorizes the commission to establish rules concerning the issuance and price of validation cards permitting the limited and temporary use of vessels for recreational purposes or participation in contests or events and to adopt rules regarding dealer's, distributor's, and manufacturer's licenses, including application forms, application and renewal procedures, and reporting and recordkeeping requirements; §43.061, which authorizes the commission to establish fees for review of applications for permits to trap, transport, and transplant game animals and game birds and any other department actions necessary to implement §43.061; and §81.403, which authorizes the department to issue permits authorizing access to public hunting land or for specific hunting, fishing, recreational, or other use of public hunting land or wildlife management areas and requires the department to charge a permit fee by rule.
The proposed amendments affect Parks and Wildlife Code, Chapters 11, 31, 43, and 81.
§53.10.Public Hunting and Fishing Permits and Fees.
(a) Hunting and access permits:
(1) annual public hunting--$48;
(2) replacement annual public hunting--$10;
(3) limited public use--$12; [and]
(4) replacement limited public use--$10; and
(5) mentored hunting permit--$25.
(b) - (d) (No change.)
§53.14.Deer Management and Removal Permits.
(a) Deer breeding and related permits. Deer [
Scientific] breeder's and deer [scientific]
breeder's renewal--$400.
[(b) Trap, transport and transplant permit application fees:]
[(1) nonrefundable application processing fee--$750 per release site; and]
[(2) nonrefundable application processing fee for amendment to existing permit--$30. If the amendment includes additional release sites, the fee prescribed by paragraph (1) of this subsection shall be imposed for each additional release site.]
(b) [(c)] Urban white-tailed deer removal permit:
(1) nonrefundable application processing fee--$750; and
(2) nonrefundable application processing fee for amendment to existing permit--$30. If the amendment includes additional release sites, the fee prescribed by paragraph (1) of this subsection shall be imposed for each additional release site.
(c) [(d)] Deer management permit and renewal--$1,000.
(d) [(e)] Antlerless and spike
buck deer control permit application processing fee--$360.
§53.15.Miscellaneous Fisheries and Wildlife Licenses and Permits.
(a) Trap, transport and transplant permit application fees:
(1) nonrefundable application processing fee--$750 per release site; and
(2) nonrefundable application processing fee for amendment to existing permit--$30. If the amendment includes additional release sites, the fee prescribed by paragraph (1) of this subsection shall be imposed for each additional release site.
(b) [(a)] Game bird and animal breeding licenses:
(1) game animal breeder's--$75;
(2) class 1 commercial game bird breeder's--$180; and
(3) class 2 commercial game bird breeder's--$25.
(c) [(b)] Commercial nongame permits:
(1) resident nongame permit--$18;
(2) nonresident nongame permit--$60;
(3) resident nongame dealer permit--$60;
(4) nonresident nongame dealer permit--$240;
(5) nongame species sales permit--$200; and
(6) nongame species sales permit renewal--$200.
(d) [(c)] Zoological collection
permit application--$150;
(e) [(d)] Scientific research permit application--$50;
(f) [(e)] Educational display permit application--$50.
(g) [(f)] Exotic Species (fish,
shellfish and aquatic plants):
(1) exotic species permit fee for new, renewed or amended application requiring facility inspection--$250;
(2) exotic species permit fee for renewed or amended application not requiring facility inspection--$25;
(3) exotic species permit fee for renewal application received more than one year after renewal date--$250.
(4) triploid grass carp permit application fee--$15, plus $2 per triploid grass carp requested;
(5) exotic species interstate transport permit application fee--individual--$25;
(6) exotic species interstate transport permit application fee--annual--$100.
(h) [(g)] Miscellaneous fees:
(1) commercial plant permit--$50;
(2) aerial management permit--$200;
(3) broodfish permit application--$25;
(4) permit to introduce fish, shellfish, or aquatic plants-no fee;
(5) offshore aquaculture permit or renewal--$1,500;
(6) oyster lease application--$200;
(7) oyster lease rental--$6 per acre of location per year;
(8) oyster lease renewal/transfer/sale--$200; and
(9) double-crested cormorant control permit--$12.
§53.16.Vessel, Motor, and Marine Licensing Fees.
(a) Registration fees. After the initial registration
of a vessel, the vessel may be registered electronically by credit
card by agreeing to pay an applicable credit card handling or convenience
fee in addition to the normal registration fee.[:]
(1) - (5) (No change.)
(b) - (c) (No change.)
(d) Marine dealer/distributor/manufacturer fees:
[(1) marine dealer manufacturer
number (effective until February 29, 2004)--$130;]
(1) [(2)] marine dealer, distributor
or manufacturer license (includes licensee validation card (with
decal) for recreational purposes or participation in contests or events)
--$500;
(2) [(3)] marine dealer, distributor
or manufacturer ownership transfer of license--$500;
(3) [(4)] marine dealer, distributor
or manufacturer location transfer--$10;
(4) [(5)] marine dealer, distributor
or manufacturer information update/license correction--$3;
(5) additional marine dealer, manufacturer, or distributor's licensee validation card (with decal) for recreational purposes or participation in contests or events--$120; and
(6) replacement card marine dealer, manufacturer, or distributor's licensee validation card (with decal)--$10.
(e) - (f) (No change.)
§53.17.Miscellaneous Fees.
(a) Off-highway vehicle decal--$8;
(b) Controlled exotic snake permits:
(1) recreational--$20; and
(2) commercial--$60.[; and]
[(c) mentored hunting permit--$25.]
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on February 9, 2009.
TRD-200900472
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Earliest possible date of adoption: March 22, 2009
For further information, please call: (512) 389-4775
(Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Parks and Wildlife Department or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeal is proposed under Parks and Wildlife Code, Parks and Wildlife Code, §11.027, which authorizes the commission to establish and provide for the collection of a fee to cover costs associated with the review of an application for a permit required by the code, and to set and charge a fee for the use of a credit card to pay a fee assessed by the department in an amount reasonable and necessary to reimburse the department for the costs involved in the use of the card; and under Parks and Wildlife Code, §31.0412, which authorizes the commission to establish rules concerning the issuance and price of validation cards permitting the limited and temporary use of vessels for recreational purposes or participation in contests or events and to adopt rules regarding dealer's, distributor's, and manufacturer's licenses, including application forms, application and renewal procedures, and reporting and recordkeeping requirements.
The proposed repeal affects Parks and Wildlife Code, Chapters 11 and 31.
§53.18.Other Fees.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on February 9, 2009.
TRD-200900471
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Earliest possible date of adoption: March 22, 2009
For further information, please call: (512) 389-4775
The amendment is proposed under Parks and Wildlife Code, §11.027, which authorizes the commission to establish and provide for the collection of a fee for entering, reserving, or using a facility or property owned or managed by the department.
The proposed amendments affect Parks and Wildlife Code, Chapter 11.
§53.30.Facility Admission and Use Fees.
As determined and authorized by the executive director, the department may charge entrance and facility use fees within the ranges established or the amounts specified in this section.
(1) Texas Freshwater Fisheries Center.
(A) Entry fees.
(i) daily entrance fee--$0-$6; and
(ii) annual pass--$0-$15.
[(A) The department may charge entrance
fees, not to exceed $6 for daily entrance, and $15 for an annual pass.]
(B) - (C) (No change.)
(2) - (5) (No change.)
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on February 9, 2009.
TRD-200900473
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Earliest possible date of adoption: March 22, 2009
For further information, please call: (512) 389-4775
The Texas Parks and Wildlife Department (the department) proposes an amendment to §53.13, concerning Business License and Permits (Fishing).
The proposed amendment would implement fees for a new subcategory of fishing guide license, the resident and nonresident paddle craft all-water fishing guide licenses. In another rulemaking published elsewhere in this issue of the Texas Register, the department proposes an amendment to §65.73, concerning Fishing Guide License--Required Documentation, which would establish a distinction in requirements between fishing guides operating a motorized vessel and fishing guides operating from a non-motorized boat. The information contained in the preamble of that rulemaking is reproduced here as a courtesy.
Under current rule, all-water fishing guide licensing requirements are unsuited for prospective guides who fish exclusively from paddle craft, in that guides are required to possess a valid and appropriate U.S. Coast Guard Operator's License (which requires completion of a CPR/First-aid course and proof of time on the water as conditions of licensure). For operators of paddle craft, many of whom do not have access to a power boat, this can present a barrier to engaging in the business of being a fishing guide. The creation of subcategories of the existing licenses, with different sets of requirements for operators of power craft and operators of paddle craft, would create the opportunity for operators of paddle craft to obtain a guide license. The fee for the new licenses is identical to the fee currently in effect for all-water fishing guide licenses. Additionally, it should be noted that a guide who has the all-water guide license under the current requirements will still be allowed to operate as a guide in either a motorized or a non-motorized craft.
Paul Hammerschmidt, Program Specialist, has determined that for each of the first five years that the rule as proposed is in effect, there could be fiscal implications for state government as a result of administering or enforcing the rule. The effect of the creation of the new licenses is to create subcategories out of the current single category of persons who are required to purchase a fishing guide license if they wish to engage in the business of being a fishing guide. However, there may be persons who have until now chosen not to engage in the business of being a fishing guide because they are unwilling or unable to obtain the required U.S. Coast Guard Operator's License. The department cannot determine how many currently unlicensed persons might purchase a paddle craft all-water fishing guide license; however, it is expected to be fewer than ten but could be more. Therefore, assuming that ten nonresident licenses are purchased each year, the maximum fiscal impact to the department would be an increase of $10,000 in revenue per year. Any combination of resident and nonresident licenses totaling ten will result in less than $10,000 of revenue per year.
There will be no fiscal implications for other units of state or local government as a result of the proposed rule.
Mr. Hammerschmidt also has determined that for each of the first five years the rule as proposed is in effect, the public benefit anticipated as a result of enforcing or administering the rule as proposed will be the establishment of a license that allows fishing guides who do not use power craft to be licensed as fishing guides.
There will be no additional economic costs for persons required to comply with the rule as proposed. Under Parks and Wildlife Code, Chapter 47, no person may engage in business as a fishing guide unless the resident has obtained a fishing guide license; thus, the proposed amendment does require anyone to obtain a license who is not currently required to obtain a license.
Under the provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic affect on small businesses and micro-businesses. As required by Government Code, §2006.002(g), the Office of the Attorney General has prepared guidelines to assist state agencies in determining a proposed rule's potential adverse economic impact on small businesses. Those guidelines state that an agency need only consider a proposed rule's "direct adverse economic impacts" to small businesses and micro-businesses to determine if any further analysis is required. For that purpose, the department considers "direct economic impact" to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services.
The department believes that most if not all persons doing business as a paddle-craft fishing guide qualify as small or micro-businesses. The department estimates that ten or fewer small or micro-businesses would be affected by the proposed rule. However, the department has determined that the rule as proposed will likely result in positive economic impacts to small businesses and micro-businesses. Businesses that currently operate under the all-water fishing guide license will not be required to obtain the new paddle craft all-water fishing guide license and thus will not be impacted by the proposed rule. However, a person or business who currently has an all-water fishing guide license, but wishes to provide fishing guide services only by paddle craft will no longer be required to obtain a United States Coast Guard (USCG) Operator of an Uninspected Passenger Vessel (OUPV) license.
The USCG OUPV currently costs $1,110. The current fee for the resident all-water fishing guide license is $200. Therefore, the cost of obtaining the resident all-water fishing guide license totals $1,310.
To obtain a paddle craft all-water fishing guide license under the proposed rule, a Texas resident would be required to pay approximately $745, which consists of the $200 fee for licensure (proposed elsewhere in this issue), approximately $45 for CPR/First Aid certification, and approximately $500 for the required kayak/canoe certifications. However, the $1,100 USCG OUPV would not be required. Therefore, the cost savings for a resident providing paddle craft fishing guide services would be approximately $565 per year.
For nonresidents, the current fee for the all-water fishing guide license is $1,000. When combined with the cost of the USCG OUPV, the cost of obtaining the resident all-water fishing guide license totals $2,100. For nonresidents wishing to guide by paddle craft only, the probable direct economic cost of compliance would be approximately $1,545, which consists of the $1,000 fee for licensure (proposed elsewhere in this issue), approximately $45 for CPR/First Aid certification, and approximately $500 for the required kayak/canoe certifications. However, the $1,110 USCG OUPV would not be required. Therefore, the cost savings for a nonresident providing paddle craft fishing guide services would be approximately $555 per year. As a result, the rule as proposed will not have an adverse impact on small or micro-businesses doing business as fishing guides.
The department has not drafted a local employment impact statement under the Administrative Procedures Act, §2001.022, as the agency has determined that the rule as proposed will not impact local economies.
The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rule.
Comments on the proposed rule may be submitted to Paul Hammerschmidt, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4650 (e-mail: paul.hammerschmidt@tpwd.state.tx.us).
The amendment is proposed under the authority of Parks and Wildlife Code, §47.004 and §47.005, which authorize the commission to adopt rules governing the issuance and use of a resident and nonresident fishing guide licenses, respectively, including rules creating separate resident fishing guide licenses for use in saltwater and freshwater.
The proposed amendment affects Parks and Wildlife Code, Chapter 47.
§53.13.Business License and Permits (Fishing).
(a) Licenses.
(1) - (10) (No change.)
(11) resident all-water fishing guide--$200; [and]
(12) resident paddle craft all-water fishing guide--$200;
(13) [(12)] non-resident all-water
fishing guide--$1,000; and
(14) non-resident paddle craft all-water fishing guide--$1,000.
(b) - (c) (No change.)
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on February 9, 2009.
TRD-200900470
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Earliest possible date of adoption: March 22, 2009
For further information, please call: (512) 389-4775
The Texas Parks and Wildlife Department (the department) proposes amendments to §§57.111, 57.112, 57.156, 57.157, 57.252, 57.258, 57.377, 57.378, and 57.397, concerning Fisheries.
The proposed amendments are necessary as a result of the department's review of its regulations under the provisions of Government Code, §2001.039, which requires a state agency to review each of its regulations no less frequently than every four years and to readopt, adopt with changes, or repeal each rule as a result of the review.
The proposed amendment to §57.111, concerning, Definitions, would update the scientific names of various families, genera, and species listed in the section. Scientific names are frequently changed as new knowledge about organisms is developed. Each change to a name in the section reflects the official name recognized by the American Fisheries Society, which is the acknowledged arbiter of taxonomic nomenclature with respect to aquatic organisms. The proposed amendment is nonsubstantive and neither removes organisms from nor adds organisms to the list of organisms regulated by the department.
The proposed amendment to §57.112, concerning General Rules, would alter subsections (b) and (c) to replace the term "public waters" with the term "water of this state." The proposed amendment is necessary to be consistent with Parks and Wildlife Code, §66.007(a), which states that "No person may import, possess, sell, or place into water of this state exotic harmful or potentially harmful fish, shellfish, or aquatic plants except as authorized by rule or permit issued by the department."
The proposed amendment to §57.156, concerning, Definitions, would correct an inaccurate reference in paragraph (2) to the title of a publication concerning bivalve mollusks. The change is necessary for accuracy and is nonsubstantive.
The proposed amendment to §57.157, concerning, Mussels and Clams, would correct a misspelling of a species name in subsection (b). The change is necessary for accuracy and is nonsubstantive.
The proposed amendments to §57.252 and §57.258, concerning Introduction of Fish, Shellfish, and Aquatic Plants, would alter §57.252(f)(5) and §57.258(5) to extend from 10 days to 60 days the time period in which a permittee must remove enclosures and associated infrastructure from public waters as a result of permit expiration or revocation. This change was presented to the Texas Parks and Wildlife Commission in its March 2008 and May 2008 meetings, but was inadvertently excluded from the rulemaking. These changes are necessary to maintain consistent rules that reflect the decisions of the commission. Under the current rule, if it became necessary to remove infrastructure related to an off-shore aquaculture facility, such as in the case of an aquaculture company closing its business or losing its permit, the company would be required to remove the off shore aquaculture infrastructure within ten days. After talking to individuals and entities impacted by this rule, the department has determined that 10 days is not sufficient time to remove such infrastructure. There are several factors that may impact the removal of aquaculture infrastructure, including contracting and coordination obligations, as well as weather. Sixty days was determined to be a reasonable period for removal of the infrastructure.
The proposed amendment to §57.377, concerning Definitions, would remove the list of game fish and replace it with a reference to the definition of game fish contained in §65.3 of this title (relating to Definitions). The change is necessary to reduce duplication and remove the need to make changes in several rules each time a species is designated as a game fish and is nonsubstantive.
The proposed amendment to §57.378, concerning Nongame Fishes Covered by These Rules, would rename the section, correct misspellings of species names, and update taxonomic references. The change is necessary to maintain accurate rules and is nonsubstantive.
The proposed amendment to §57.397, concerning Broodfish Permit; Revocation, would alter the section to indicate that revocation of a permit is done by the department rather than by the executive director. The change is necessary to maintain accuracy and is nonsubstantive.
Mr. Robert Macdonald, Regulations Coordinator, has determined that for each of the first five years the rules as proposed are in effect, there will be no fiscal implications to state or local government as a result of enforcing or administering the rules.
Mr. Macdonald also has determined that for each of the first five years the rules as proposed are in effect, the public benefit anticipated as a result of enforcing or administering the rules as proposed will be accurate regulations.
Under the provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses and micro-businesses. The only potential small businesses impacted by the proposed rule would be small businesses in the aquaculture industry that are required to remove aquaculture facilities under proposed amendments to §57.252 and §57.258. However, any such impact would be a positive impact, rather than an adverse impact in that current regulatory requirements are being relaxed. Therefore, the department has determined that there will be no direct economic effect on small or micro-businesses or persons required to comply as a result of the proposed rules. The rules would not compel or mandate any action on the part of any entity, including small businesses or microbusinesses. In particular, the proposed rules would not add new reporting or recordkeeping requirements; require any new professional expertise, capital costs, or costs for modification of existing processes or procedures; lead to loss of sales or profits; change market competition; or increase taxes or fees. Accordingly, the department has not prepared a regulatory flexibility analysis under Government Code, Chapter 2006.
The department has not drafted a local employment impact statement under the Administrative Procedures Act, §2001.022, as the agency has determined that the rules as proposed will not impact local economies.
The department has determined that Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rules.
The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rules.
Comments on the proposed rules may be submitted to Robert Macdonald, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4775, e-mail: robert.macdonald@tpwd.state.tx.us.
SUBCHAPTER A. HARMFUL OR POTENTIALLY HARMFUL FISH, SHELLFISH, AND AQUATIC PLANTS
The amendments are proposed under Parks and Wildlife Code, §66.007, which requires the department to department to make rules governing the importation, possession, and sale of exotic harmful or potentially harmful fish, shellfish, or aquatic plants and their placement into water of this state.
The proposed amendments affect Parks and Wildlife Code, Chapter 66.
§57.111.Definitions.
The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.
(1) - (15) (No change.)
(16) Harmful or potentially harmful exotic fish--
(A) Lampreys Family: Petromyzontidae--all species except Ichthyomyzon castaneus and I. gagei;
(B) Freshwater Stingrays Family: Potamotrygonidae--all species;
(C) Arapaima Family: Arapaimadae [Osteoglossidae
]--Arapaima gigas;
(D) South American Pike Characoids Family: Acestrorhynchidae [
Characidae]--all species of genus Acestrorhyncus;
(E) African Tiger Fishes Family, Family Alestidae [
Subfamily Alestiidae: Hydrocyninae]--all species of genus Hydrocynus;
(F) Piranhas and Pirambebas: Family Characidae [
Serrasalmideae, Subfamily: Serrasalminae]--all species [
except pacus] of the genus Piaractus;
(G) Payara and other wolf or vampire tetras: Dogtooth
characins, Family Cynodontidae [Family Characidae, Subfamily:
Rhaphiodontinae]--all species of genera Hydrolycus, [
and] Rhaphiodon, and [including] Cynodon;
(H) Dourados: Family Characidae, Subfamily: Incertae [
Bryconinae]--all species of genus Salminus;
(I) South American Tiger Fishes Family: Erythrinidae--all species;
(J) South American Pike Characoids Family: Ctenoluciidae [
Ctenolucidae]--all species of genera Ctenolucius
and Boulengerella[, including Luciocharax and Hydrocinus];
(K) African Pike Characoids Families: Hepsetidae, [and
] Ichthyboridae, and Citharinidae--all species;
(L) Electric Eels Family: Gymnotidae [Electrophoridae
]--Electrophorus electricus;
(M) Carps and Minnows Family: Cyprinidae--all species
and hybrids of species of genera: Aspius, Pseudaspius [
Pseudoaspius
], Aspiolucius (Asps); Abramis, Blicca, Megalobrama, Parabramis
(Old World Breams); Hypophthalmichthys or Aristichthys (Bighead Carp);
Mylopharyngodon (Black Carp); Ctenopharyngodon (Grass Carp); Cirrhinus
(Mud Carp); Thynnichthys (Sandkhol Carp); Hypophthalmichthys (Silver
Carp); Catla (Catla); Leuciscus (Old World Chubs, Ide, Orfe, Daces); Tor,
Neolissochilus hexagonolepsis [including the
species Barbus hexiglonolepsis] (Giant Barbs and Mahseers);
Rutilus (Roaches); Scardinius (Rudds); Elopichthys (Yellowcheek);
Catlocarpio (Giant Siamese Carp); all species of the genus Labeo (Labeos)
except Labeo chrysophekadion (Black SharkMinnow);
(N) Walking Catfishes Family: Clariidae--all species;
(O) Electric Catfishes Family: Malapteruridae--all species;
(P) South American Parasitic Candiru Catfishes Family: Trichomycteridae [Subfamilies: Stegophilinae and Vandelliinae--all species];
(Q) Pike Killifish Family: Poeciliidae--Belonesox belizanus;
(R) Marine Stonefishes Family: Synanceiidae--all species;
(S) Tilapia Family: Cichlidae--all species of genera
Tilapia, Oreochromis, and Sarotherodon [
Saratherodon];
(T) Asian Pikeheads Family: Luciocephalidae--all species;
(U) Snakeheads Family: Channidae--all species;
(V) Old World Pike-Perches Family: Percidae--all species of the genus Sander except Sander vitreum;
(W) Nile Perch Family: Family Latidae [Centropomidae
(also called Latidae)]--all species of genera Lates and Luciolates;
(X) Seatrouts and Corvinas Family: Sciaenidae--all species of genus Cynoscion except Cynoscion nebulosus, C. nothus, and C. arenarius;
(Y) Whale Catfishes Family: Cetopsidae--all species;
(Z) Ruffe Family: Percidae--all species of genus Gymnocephalus;
(AA) Air sac Catfishes Family: Heteropneustidae--all species;
(BB) Swamp Eels, Rice Eels or One-Gilled Eel Family: Synbranchidae--all species;
(CC) Freshwater Eels Family Anguillidae [family:
Anguilliidae]--all species except Anguilla rostrata;
(DD) Round Gobies Family: Gobiidae--all species of genus Neogobius[
, including N. melanostoma].
(EE) Temperate Basses Family: Moronidae--all species except for Morone saxatilis, M. chrysops and M. mississippiensis and hybrids between these three species;
(FF) Temperate Perches Family: Percichthyidae--all
species[, including species of the genus Siniperca (Chinese perches)
].
(17) Harmful or potentially harmful exotic shellfish--
(A) Crayfishes Family: Parastacidae--all species;
(B) Mittencrabs Family: Varnidae [Grapsidae
]--all species of genus Eriocheir;
(C) Zebra Mussels Family: Dreissenidae--all species of genus Dreissena;
(D) Penaeid Shrimp Family: Penaeidae--all species of
genera Penaeus, Litopenaeus, Farfantepenaeus, Fenneropenaeus, Marsupenaeus,
and Melicertus (all previously considered Penaeus) except L. setiferus, F.
[Far.] aztecus and Far. duorarum.
(E) Oyster Family: Ostreidae--all species except Crassostrea virginica and Ostrea equestris.
(F) Applesnails and Giant Rams-Horn Snail[: all
genera and species of the] Family Ampullariidae [
(previously called Pilidae), including Pomacea
] and Marisa, except spiketop applesnail (Pomacea bridgesi [
bridgesii]).
(18) Harmful or potentially harmful exotic plants--
(A) Giant or Dotted Duckweed Family: Lemnaceae-- Landoltia [
Landolita] punctata;
(B) Salvinia Family: Salviniaceae--all species of genus Salvinia;
(C) Waterhyacinth Family: Pontederiaceae--Eichhornia crassipes (floating waterhyacinth) and E. azurea (rooted waterhyacinth);
(D) Waterlettuce Family: Araceae--Pistia stratiotes;
(E) Hydrilla Family: Hydrocharitaceae--Hydrilla verticillata;
(F) Lagarosiphon Family: Hydrocharitaceae--Lagarosiphon major;
(G) Eurasian Watermilfoil Family: Haloragaceae--Myriophyllum spicatum;
(H) Alligatorweed Family: Amaranthaceae--Alternanthera philoxeroides;
(I) Paperbark Family: Myrtaceae--Melaleuca quinquenervia;
(J) Torpedograss Family: Poaceae [Gramineae
]--Panicum repens;
(K) Water spinach (also called ong choy, rau mong and kangkong) Family: Convolvulaceae--Ipomoea aquatica.
(L) Ambulia (Asian marshweed) Family: Scrophulariaceae--Limnophila
sessiliflora [sessiflora];
(M) Narrowleaf False Pickerelweed Family: Pontederiaceae --Monochoria hastata;
(N) Heartshaped False Pickerelweed Family: Pontederiaceae --Monochoria vaginalis;
(O) Duck-lettuce Family: Hydrocharitaceae--Ottelia alismoides;
(P) Wetland Nightshade Family: Solanaceae--Solanum tampicense;
(Q) Exotic Bur-reed Family: Sparganiaceae--Sparganium erectum;
(R) Brazilian Peppertree Family: Anacardiaceae--Schinus terebinthifolius;
(S) Purple Loosestrife Family: Lythraceae--Lythrum salicaria.
(19) - (36) (No change.)
§57.112.General Rules.
(a) Scientific reclassification or change in nomenclature of taxa at any level in taxonomic hierarchy will not, in and of itself, result in redefinition of a harmful or potentially harmful exotic species.
(b) Except as provided in §57.113 of this title
(relating to Exceptions), it is an offense for any person to release
into the water of this state [public waters],
import, sell, purchase, transport, propagate, or possess any species,
hybrid of a species, subspecies, eggs, seeds, or any part of any species
defined as a harmful or potentially harmful exotic fish, shellfish,
or aquatic plant.
(c) Except as specifically authorized in writing by
the department, it is an offense for anyone to remove a live grass
carp from the water of this state [public waters]
where grass carp have been introduced under a permit issued by the
department.
(d) Violation of any provision of a permit issued under these rules is a violation of these rules.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on February 9, 2009.
TRD-200900474
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Earliest possible date of adoption: March 22, 2009
For further information, please call: (512) 389-4775
The amendments are proposed under Parks and Wildlife Code, §78.006, which authorizes the commission to regulate the taking, possession, purchase, and sale of mussels and clams.
The proposed amendments affect Parks and Wildlife Code, Chapter 78.
§57.156.Definitions.
The following words and terms, when used in these sections, shall have the following meanings, unless the context clearly indicates otherwise.
(1) (No change.)
(2) Freshwater mussel--Bivalve mollusks of the family
Unionidae (collectively including Amblimidae and Margaritiferidae)
as listed by the American Fisheries Society Special Publication 29
[16].
(3) - (5) (No change.)
§57.157.Mussels and Clams.
(a) (No change.)
(b) Size limits. No person may take or possess mussels or clams, including their shells, that can be passed through a ring with an inside diameter (I.D.) specified for the species, as follows:
(c) - (g) (No change.)
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on February 9, 2009.
TRD-200900475
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Earliest possible date of adoption: March 22, 2009
For further information, please call: (512) 389-4775
The amendments are proposed under Parks and Wildlife Code, §66.015, which requires the commission to establish rules and regulations governing permits to introduce fish, shellfish, or aquatic plants into the public water of this state.
The proposed amendments affect Parks and Wildlife Code, Chapter 66.
§57.252.General Provisions.
(a) - (e) (No change.)
(f) A holder of an offshore aquaculture permit must:
(1) - (4) (No change.)
(5) remove all enclosures and associated infrastructure
from public waters within (60) [10] calendar
days of permit expiration or revocation.
(g) - (h) (No change.)
§57.258.Prohibited Acts.
Except as provided in this subchapter, it is an offense if:
(1) - (4) (No change.)
(5) any person to whom the department has issued an
offshore aquaculture permit fails to remove all enclosures and associated
infrastructure from public waters within 60 [10]
calendar days of permit expiration or revocation; or
(6) (No change.)
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on February 9, 2009.
TRD-200900476
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Earliest possible date of adoption: March 22, 2009
For further information, please call: (512) 389-4775
The amendments are proposed under Parks and Wildlife Code, §67.004, which requires the commission to establish by rule any limits on the taking, possession, propagation, transportation, importation, exportation, sale, or offering for sale of nongame fish.
The proposed amendment affects Parks and Wildlife Code, Chapter 67.
§57.377.Definitions.
The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.
(1) (No change.)
(2) Game fish--As defined in §65.3(23) of
this title (relating to Definitions) [Blue catfish, blue
marlin, broadbill swordfish, brown trout, channel catfish, cobia,
crappie (black and white), flathead catfish, Guadalupe bass, king
mackerel, largemouth bass, longbill spearfish, pickerel, red drum,
rainbow trout, sailfish, sauger, sharks, smallmouth bass, snook, Spanish
mackerel, spotted bass, spotted seatrout, striped bass, tarpon, wahoo,
walleye, white bass, white marlin, yellow bass, and hybrids or subspecies
of the species listed in this subparagraph].
(3) Non-game fish--All species not defined [listed
] as game fish, except endangered and threatened fish,
which are defined and regulated under Chapter 65, Subchapter
G of this title (relating to Threatened and Endangered Nongame Species)
[separate proclamations].
(4) (No change.)
§57.378.Applicability: Nongame Fishes [Covered by These Rules].
A permit to sell the following species of nongame fish taken from public fresh water may be issued if the department determines that the sale is necessary to properly manage the species.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on February 9, 2009.
TRD-200900477
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Earliest possible date of adoption: March 22, 2009
For further information, please call: (512) 389-4775
The amendment is proposed under Parks and Wildlife Code, §43.552, which requires the commission to prescribe by rule the requirements and conditions for issuance of a permit for the take of broodfish from public waters.
The proposed amendment affects Parks and Wildlife Code, Chapter 43.
§57.397.Broodfish Permit; Revocation.
The department [director] may revoke
a broodfish permit upon finding that a permittee or his agent:
(1) does not hold a valid aquaculture (fish farming) license issued by the Texas Department of Agriculture;
(2) does not hold a valid sportfishing license while collecting in all public waters of this state in addition to a saltwater stamp in public salt water;
(3) has violated any provision of that broodfish permit;
(4) fails to report, as required in §57.401 of this title (relating to Reports), the number and sizes of broodfish collected;
(5) provides false information in a broodfish report; or
(6) fails to remit to the department within 30 days of broodfish collection all restitution fees assessed to the permittee for recovery of the value of broodfish collected.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on February 9, 2009.
TRD-200900478
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Earliest possible date of adoption: March 22, 2009
For further information, please call: (512) 389-4775
The Texas Parks and Wildlife Department proposes the repeal of §59.75 and §59.134, amendments to §§59.41 - 59.47, 59.61 - 59.64, and 59.131 - 59.133, and new §59.134, concerning State Parks. The repeals, amendments, and new section are necessary as a result of the department's review of its regulations under the provisions of Government Code, §2001.039, which requires a state agency to review each of its regulations no less frequently than every four years and to readopt, adopt with changes, or repeal each rule as a result of the review.
The proposed repeal of §59.75, concerning Coastal Management Program, is necessary because it is duplicative of other department rules. The department is already required by the Coastal Coordination Act and other department regulations, as well as General Land Office regulations to perform the activities listed in the rule. Texas Natural Resources Code §§33.201 - 33.212; see, 31 Texas Administrative Code (TAC) §§69.91, 69.93, 501.1 - 501.34.
The proposed repeal of §59.134, concerning Rules of Conduct, is necessary because the department is restructuring and reorganizing its contents in proposed new §59.134.
The proposed amendment to §59.41, concerning General Statement, would alter subsection (c) to acknowledge that other state agencies also acquire and manage historic sites. Specifically, in accordance with House Bill 12, as enacted by the 80th Texas Legislature (2007), 18 State Historic Sites were transferred from the department of the Texas Historical Commission. Similarly, Senate Bill 1659, also enacted by the 80th Texas Legislature, transferred the Texas State Railroad to the Texas State Railroad Authority. Previously, by House Bill 2025, enacted by the 79th Texas Legislature (2005), the National Museum of the Pacific War, formerly known as the Fleet Admiral Chester W. Nimitz Memorial Naval Museum to the Texas Historical Commission.
The proposed amendment to §59.42, concerning Chronology and Thematic Organization, would alter subsection (a) to replace the word "balanced" with the word "full" with respect to interpretation of the heritage of Texas. The proposed amendment is necessary because "full" better describes the goal of department interpretive programs that all aspects of Texas heritage will be addressed.
The proposed amendment to §59.43, concerning Acquisition Guidelines, would alter subsection (a)(4) to remove the term "aboriginal" and replace it with a reference to "pre-European contact inhabitants." The amendment is necessary to replace obsolete terminology with modern terminology.
The proposed amendment to §59.44, concerning Development Guidelines, would alter subsection (c)(1) to eliminate a reference to the General Services Commission, which no longer exists, and replace it with a reference to the Texas Procurement and Support Services (TPASS) program of the Texas Comptroller of Public Accounts and the Texas Facilities Commission, which assumed duties formerly performed by the General Services Commission.
The proposed amendment to §59.45, concerning Methods of Additional Funding Other Than Departmental, would eliminate subsection (b), which requires the executive director to present applications for non-departmental sources of funding to the commission for consideration prior to department acceptance of such funds. The provision is being eliminated as duplicative. Commission approval and/or acknowledgment of donations over $500 is required by statute and by other department regulations. Texas Government Code §575.003; Texas Parks and Wildlife Code §§11.026, 11.0182; 31 TAC §51.70 and §51.71.
The proposed amendment to §59.46, concerning Maintenance Guidelines, would add the phrase "and other professional standards" to subsection (a) to acknowledge that the standards of the U.S. Department of the Interior concerning treatment of historic properties are not the sole source of department information concerning the subject. For example, Texas Antiquities Code, Texas Administrative Code, and department procedures also apply.
The proposed amendment to §59.47, concerning Personnel Selection and Training Guidelines, would replace the word "prehistory" with the word "archeology" in paragraph (4) to replace an obsolete term with a more accurate reference to a professional discipline .
The proposed amendment to §59.61, concerning General Objectives (regarding administration of the state parks system) would replace the phrase "purpose and scope" with the term "mission, "replace a reference to "public lands" with a reference to the "state park system," and revise the section to qualify that the department's stewardship of the state parks system is based on sustainability and best management practices in the interest of encouraging the citizens of the state to understand and appreciate the state's cultural, historical and natural heritage. The proposed amendment also eliminates archaic capitalization conventions in the word "state." The amendment is necessary to specifically identify the state park system as the entity being addressed in the rule, to acknowledge modern developments in state park system management, and to eliminate obsolete grammatical usage.
The proposed amendment to §59.62, concerning Parks and Wildlife Land Classification--Policy, would alter paragraph (1) to refer to lands "managed or operated as state parks" rather than lands "owned or leased by Texas Parks and Wildlife Department, except coastal preserves, scientific areas, fish hatcheries, boat ramps and administrative properties" with respect to the classification policy. The department is required by Parks and Wildlife Code to "establish a classification system for state parks and wildlife management areas that categorizes wildlife management areas, parks, or a portion of parks as wildlife management areas, recreational areas, natural areas, or historical sites." Texas Parks and Wildlife Code §13.001(b). The subject of Chapter 59 is state parks. Therefore, the applicability of the section is being narrowed to primarily focus on those lands managed or operated as unites of the state parks. However, to ensure that the required department property classifications are included, the amendment includes a reference to department properties classified as wildlife management areas, as addressed in Chapter 65, Subchapter H.
The proposed amendment to §59.62 also would clarify that management and operation of units of the state park system will be in accordance with the classification system and appropriate management plans developed for each unit of the state park system. The proposed amendment also eliminates language concerning public input regarding park management plans and public hunting that is duplicative of the Parks and Wildlife Code and other department regulations. Parks and Wildlife Code, §13.020, requires a public hearing before the commission approves a park master development plan. Similarly, rules regarding hunting on public lands, including state parks, are addressed in Chapter 65, Subchapter H. Also, state parks are scheduled for public hunting activities by action of the commission on an annual basis in a public meeting conducted in accordance with the Texas Open Meetings Act (Government Code, Chapter 551).
The proposed amendment to §59.62(3) would add "cultural resource preservation" to the items addressed by management plans. Cultural resource preservation has always been an important consideration, and the proposed amendment is intended to make this explicit.
The proposed amendment to §59.62 would also eliminate current paragraph (5), which is an unnecessary explanation of terms such as "may" and "shall" that are commonly understood without elaboration. It is the department's intent that such phrases be interpreted in accordance with rules of statutory construction, including those contained in Government Code, Chapters 311 and 312.
The proposed amendment to §59.63, concerning Definitions, would modernize and clarify the definitions in the section. The word "title" is replaced with the word "chapter" to clarify that the terms defined are for the purpose of Chapter 59, rather than the entirety of Title 31 of the Texas Administrative Code.
The proposed amendment would eliminate paragraph (1) because the term "ecoregions" is not used in the rules.
The proposed amendment would alter current paragraph (2), redesignated as paragraph (1), to clarify that "low impact use" in some instances may result in irreversible impacts that are within acceptable limits of change.
The proposed amendment to current paragraph (3), redesignated as paragraph (2) would amend the definition of a "management plan" to replace the reference to "Parks and Wildlife lands" with a narrower reference to lands "within the state park system" which is a more accurate description of applicability.
The proposed amendment to current paragraphs (4) and (5), redesignated as paragraphs (3) and (4), respectively, would clarify that "natural biodiversity" and "natural communities" are understood to mean plants and animals indigenous to Texas and the interaction of those plants and animals.
The proposed amendment to current paragraph (6), redesignated as paragraph (5), would replace a reference to "Public Hunting Lands Hunting and Fishing Proclamation" with a reference to the "Public Lands Proclamation," which is the correct title of that document.
The proposed amendment to current paragraph (7), redesignated as paragraph (6) would implement a broad definition of "public use." The current definition simply lists a number of common activities, giving the impression that "public use" is constituted by those activities irrespective of the individual management priorities of individual units of the state parks system. The new definition simply states that public use is resource-oriented recreation under the operational rules of the department.
The proposed amendment to current paragraph (8), redesignated as paragraph (7), clarifies that "resource-oriented recreation" must be consistent with applicable rules and policies, which acknowledges that recreational activity on state parks is managed.
The proposed amendment to current paragraph (9), redesignated as paragraph (8), clarifies that "sound biological management" must be science-based and incorporate best management practices. The proposed amendment affirms the department's commitment to the management of biological resources in a responsible manner.
The proposed amendment to current paragraph (10), redesignated as paragraph (9) would amend the definition of "sustainability" to expressly acknowledge that the department's intent is to measure the effect of management regimes on the "sustainability" of natural assets in the state park system.
The proposed amendment to current paragraph (11), redesignated as paragraph (10) would clarify that "wilderness-type experience" is meant to be a true experience in a natural setting and insert a hyphen in the term.
The proposed amendment to §59.64, concerning Classification and Guidelines, would modernize the section. Classification of department lands is required by Parks and Wildlife Code, §13.001(b). The proposed amendment would eliminate current subsection (a) and all other references to "game management areas," which is an archaic term. The department does not operate any game management areas. The department does operate wildlife management areas, which are governed under Parks and Wildlife Code, Chapter 81, and 31 TAC Chapter 65, Subchapter H.
The proposed amendment to current subsection (b), redesignated as subsection (a) would replace the term "recreational area" with the term "State Park." Under the classification system required by statute, areas under the administration of the state park system are classified as state parks, state natural areas, state historic sites, or state park and historic sites. The term "recreational area" is no longer used. The proposed amendment also would alter current subsection (b)(2)(B), redesignated as subsection (a)(2)(B) to remove the general guideline establishing a ratio of one developed acre to four developed acres with respect to development intensity on state parks. The ratio in the current rule is identified as a guideline, and the management goals of state parks currently address development intensity on a park-specific basis and generally exceed the ratio. The proposed amendment to current subsection (b)(3)(A), redesignated as subsection (a)(3)(A), would qualify that the department's goals in any park experience, in addition to recreational enjoyment, should also be aimed at educating users about park resources. The proposed amendment to current subsection (b)(3)(B), redesignated as subsection (a)(3)(B), would clarify that economic efficiency includes cost-recovery, which allows the department to incorporate fees that are consistent with the cost to the department of providing recreational opportunities for users. The proposed amendment to the subsection would also modify paragraph (5) to acknowledge that recreational activity on any given park must be appropriate to the natural, cultural and scenic features of the park.
The proposed amendment to current subsection (c), redesignated as subsection (b), would replace the term "natural areas" with the term "State Natural Areas" which is the term used in the names of these types of facilities under the jurisdiction of the department.
The proposed amendment to current subsection (d), redesignated as subsection (c), would replace the term "historic area" with the term "State Historic Site" to more appropriately address the fact that the state operates specific sites, rather than areas and to more closely align this term with Parks and Wildlife Code, §13.0053(b), which prohibits the reference to historic sites as "historic parks." References to state historic sites are added throughout the subsection to ensure clarity. The proposed amendment also would replace an outdated reference to statutory law with a reference to the Parks and Wildlife Code in current subsection (d)(1)(A), redesignated as subsection (c)(1)(A).
The proposed amendment to current subsection (d)(3)(A), redesignated as subsection (c)(3)A), would remove the term "all," which is unnecessary. The proposed amendment to paragraph (3)(A) would also remove the term "representation," which is redundant because the term "interpretation" by definition includes representation.
The proposed amendment to current subsection (d)(3)(B), redesignated as subsection (c)(3)(B), would clarify that aesthetic integrity is an important consideration in the operation of a state historic site, as the aesthetic characteristics of a site are an inherent component of historical importance. The proposed amendment also replaces the term "design intent" with the term "character defining elements" in order to more completely describe the nature of elements that should not be obscured in the development and operation of historic sites. The proposed amendment also replaces the term "resource oriented" with "sustainability" and "resource oriented" which are terms that are being altered under the proposed amendment to §59.63, concerning Definitions.
The proposed amendment to §59.64 would add new subsection (d) to delineate guidelines for the selection, development, operation, use, and management of sites that are operated as hybrid state parks and historic sites. A state park and historic site is an area established for the preservation, interpretation and public use of prehistoric and historic resources of statewide or national significance that also offers substantial recreational opportunities for visitors.
Proposed new subsection (d)(1) would establish that state parks and historic sites be designated by the Parks and Wildlife Commission, using criteria established for state park and historic site classification.
Proposed new subsection (d)(2) would address development of facilities classified as a state park and historic site. Proposed new subsection (d)(2)(A) would establish that development of recreational features within a state park and historic site should only be provided when there is a demonstrated demand for these facilities and/or when such features facilitate additional appreciation of the historic resource. Such features should be located where they are not detrimental to the overall historical significance of the site, and the natural environment. The department's intent is to balance the historical significance of a site with recreational uses that would not obscure or detract from that significance. Proposed new subsection (d)(2)(B) would provide that the intensity of recreational development at a state park and historic site should be within the carrying capacity of the resource. Similarly, facility design and construction materials should be aesthetically pleasing, and when feasible, consistent with the character of the historical feature. The proposed amendment is intended to provide a broad guideline to ensure that development of a resource is consistent with its overall historical character and capacity for multiple uses.
Proposed new subsection (d)(3) would address the operation of a state park and historic sites. Proposed new subsection (d)(3)(A) would require that preservation, interpretation, restoration, and/or reconstruction activities be in accord with documented historical, archeological and architectural information. In a similar vein, proposed new subsection (d)(3)(B) would specify that the historical and aesthetic integrity of a historic site should be preserved, and encroachments from conflicting uses or facilities should be avoided. Original material and character-defining elements should not be obscured or destroyed to facilitate interpretation, or promote visitor convenience except when unavoidable to comply with rules or statutes pertaining to health, safety or architectural barriers. The intent of the proposed new paragraph is to preserve to the greatest extent possible the unique aspects of a site that inform and define its cultural significance.
Proposed new subsection (d)(4) would address use of state park and historic sites. Proposed new subsection (d)(4)(A) would establish that state park and historic sites provide for appropriate and sustainable resource-oriented recreation or public use that is not detrimental to the long-term stewardship of the cultural and natural resources. The intent of the proposed new paragraph is to ensure that public use not degrade the essential qualities of the site that make it valuable and significant. Proposed new subsection (d)(4)(B) would provide that state park and historic sites be used to provide public hunting opportunity when such use is not detrimental to the primary goals and management of the area and as sound biological management, location, physical conditions, safety and other public uses permit. It is the policy of the commission that multiple use of department lands be afforded in order to maximize the value of those lands to the public.
Proposed new subsection (d)(5) would address management of state park and historic sites. Proposed new subsection (d)(5)(A) would stipulate that state park and historic sites be managed to insure the continued conservation of significant cultural features and natural resources. Proposed new subsection (d)(5)(B) would stipulate that natural resource management should maintain and restore natural communities and biodiversity consistent with the primary goals of the site. Proposed new subsection (d)(5)(B) would stipulate that sites be managed in accordance with a site management plan. The intent of the proposed new subsection is to acknowledge that the department has a duty to provide for the continued availability of important cultural and natural sites for the future enjoyment of the public.
The proposed amendments to §§59.131, 59.132 and 59.133 are to update state park system operational rules. The operational rules govern the required conduct of individuals enjoying state park system sites.
The proposed amendment to §59.131, concerning Definitions, consists of several components. The term "chapter" is replaced with the term "subchapter" to reduce confusion regarding terms that may be used differently in other parts of Chapter 59.
The definition of "all terrain vehicle" in current paragraph (1) has been deleted and a modified definition has been included in the definition of "motor vehicle" in proposed new paragraph (11).
A new definition of "bicycle" has been added as proposed new paragraph (2). This definition is based on the definition in Transportation Code, §541.201.
A new definition for "camping" has been added as proposed new paragraph (5) to describe the activities constituting camping in a state park facility.
A new definition of "equine" has been added as proposed new paragraph (9).
The definition of "motorcycle" in current paragraph (1) has been deleted and a modified definition has been included in the definition of "motor vehicle" in proposed new paragraph (11).
A new definition of "motor vehicle" has been added as proposed new paragraph (11). In addition to a general reference to a "motor powered vehicle," the new definition references the Transportation Code definition for an all-terrain vehicle, a motorcycle, a golf cart, a moped, a neighborhood electric vehicle, a pocket bike or mini-motorbike, and a motor assistance scooter. An electric bicycle is also included in the definition. However, the definition clarifies that "motor vehicle" does not include a wheelchair, a motorized wheelchair or a motorized mobility device. A "motorized mobility device" is defined in proposed new paragraph (12) based on the definition contained in Transportation Code, §542.009.
A definition of "pet" has been added as proposed new paragraph (15) to refer to domesticated companion animals and to clarify that dangerous wild animals, wildlife, livestock, any species that is not normally domesticated, and any species that may not be legally possessed are not considered a "pet" under this subchapter.
The definition of "public place" in current paragraph (13) has been redesignated as proposed new paragraph (17), and would clarify that "public place" does not include the interior spaces of cabins, shelters, and other enclosures reserved or used by visitors. The term "public place" is used in proposed new §59.134(b), which prohibits the consumption or display of an alcoholic beverage in a state parks. The intent of the amended definition of "public place" is to more clearly delineate the areas in parks not considered to "public places." The department allows the responsible consumption of alcohol but does not condone or tolerate behavior that disrupts the enjoyment of other park visitors.
The definition of "public nudity" in current paragraph (14) is being deleted. The contents of this subsection are being incorporated into proposed new §59.134(n) to clarify the prohibited conduct.
The definition of "state park" in current paragraph (15), which has been redesignated as proposed new paragraph (18), has been modified to conform with changes proposed for §59.64 regarding classification of facilities within the state park system. The definition of "state park" in this subchapter should refer to all classifications of facilities in the state parks system, specifically, state parks, state historic sites, state natural areas and state park and historic sites.
The definition of "unattended pet" in current paragraph (16), which had been redesignated as proposed new paragraph (19), would clarify that an "unattended pet" is a pot not under the control of the person responsible for the pet.
The definition of "wildlife" in current paragraph (17), which has been redesignated as proposed new paragraph (20), has been revised based on the definition of "wild" in reference to animals as contained in Parks and Wildlife Code, §1.101.
The proposed amendment to §59.132, concerning General Rules, would modify subsection (b) to clarify that department employees, peace officers and emergency personnel may be exempt from the requirements of Chapter 59, Subchapter F, rather than all of Chapter 59, as necessary to carry out their official duties.
The proposed amendment would add new subsection (c) to clarify that the director may suspend state parks operational rules by written order in response to a natural disaster or similar emergency. In the event of a natural disaster or other emergency, such as the recent hurricanes along the Texas coast, it may be necessary to waive the requirements of this subchapter to protect persons and property, or provide assistance to dislocated persons or other similar assistance.
The proposed amendment to current subsection (d), redesignated as subsection (c) would correct a grammatical error regarding pronoun agreement.
The proposed amendment to §59.133, concerning Closing Hours and Overnight Use, would alter subsection (a) to clarify that closing hours and opening hours on state parks must be established by written order of the executive director of the department. The intent of the amendment is to provide a record of established closing and opening hours to avoid confusion and misunderstandings. The proposed amendment also would alter subsection (b) to remove unnecessary language and add clarity. The change to subsection (b) is nonsubstantive.
Proposed new §59.134, concerning Rules of Conduct, retains many of the same elements contained in current §59.134, which is proposed for repeal; however, proposed new §59.134 makes a number of organizational changes to consolidate rules addressing similar subjects in an effort to make the rules more reader-friendly and intuitive. For example, the new rule consolidates into separate subsections rules regarding minors, animals, cultural and natural resources, motor vehicles and use of state park facilities. Similarly, the subsections have been organized alphabetically to facilitate location of rules by subject matter.
Also, throughout the proposed new section, the phrase "for any person" is added to the phrase "it is an offense." The change is necessary to clearly tie personal involvement to an action defined as an offense, which assists in law enforcement activities and prosecutions for alleged unlawful behavior.
Proposed new §59.134(a) regarding abandoned and unattended property, would make it an offense for any person to abandon a vehicle or other personal property, or to leave any type of property unattended in a manner that creates an unsafe condition or to leave property unattended or in an undesignated location after park closing hours. This provision is very similar to current §59.134(w), which it replaces.
Proposed new §59.134(b), regarding alcoholic beverages, would make it an offense for any person to consume or display an alcoholic beverage in public or to sell alcoholic beverages in a state park. This provision is similar to current subsection (w), which it replaces; however, proposed new subsection (b) would prohibit a person from displaying any alcoholic beverage in public, regardless of whether the container is open. The department allows the responsible consumption of alcohol but does not condone or tolerate behavior that disrupts the enjoyment of other park visitors. The definition of "public place" is addressed in the proposed amendment to §59.131(16).
Proposed new §59.134(c), regarding animals, includes provisions regarding pets, equines, and wildlife, all of which are defined in the proposed amendment to §59.131. Proposed new subsection (c) would make it an offense for any person to bring into or possess within a state park, or to release into a state park any animal, unless otherwise authorized by the subsection. Proposed new subsection (c)(1), regarding equines, would require that persons handle equines in a state park in a way that is safe for the person and the equine and to ensure protection of the state park's natural and cultural resources. Proposed new subsection (c)(2) would require that persons possessing pets in a state park do so in a manner that does not harm the state park or interfere with other persons' enjoyment of the park. The department does not wish to ban pets from state parks, so staff has determined that it is necessary to create a provision to require persons who bring pets to state parks to take responsibility for cleaning up after them. Similarly, there are areas on many state parks where pets are inappropriate, such as dining facilities, swimming pools, and other areas where pets pose health threats or can be a danger. Such areas are clearly marked or identified in park literature, and it is necessary to clearly provide for an offense if pets are brought into such areas. This provision is similar to current subsections (e) and (bb) which it replaces.
Proposed new §59.134(d), regarding arms and firearms, would make it an offense for any person to display or discharge a firearm in a state park except in connection with a public hunting event in a state park or by order of the director. This provision is similar to current subsection (f), which it replaces; however, the proposed new subsection eliminates provisions prohibiting possession of a firearm, which is intended to provide more consistency with the concealed weapon permit laws. Also, provisions regarding the discharge of a projectile into a park have been deleted. Parks and Wildlife Code, §62.0121, as amended by the 79th Texas Legislature (2005) creates an offense for a person engaging in hunting or recreational shooting to discharge a firearm across a property line.
Proposed new §59.134(e), regarding closed areas, would make it an offense for any person to interfere with development, construction or management of a state park or to remain in a state park that has been closed. This provision is very similar to current subsection (i), which it replaces.
Proposed new §59.134(f), regarding entrance and user fees, would make it an offense for any person to enter a state park without satisfying the fee requirements. This subsection is unchanged from current subsection (a), which it replaces.
Proposed new §59.134(g), regarding facilities, use would make it an offense for any person to use state park facilities in an inappropriate manner. Specifically, this subsection prohibits keeping, using or arranging motor vehicles, trailers, camping and other equipment except as otherwise authorized, exceeding the use limit of a facility, an remaining past the established check-out times. This provision is very similar to current subsection (b) and (aa), which it replaces.
Proposed new §59.134(h), regarding fires, firewood, smoking and fireworks, would make it an offense for any person to build a fire, smoke, gather firewood, or possess fireworks in a state park, except where expressly authorized; however, portable gas-fueled camp stoves would be permitted in designated areas. The proposed new rule would clearly state that portable gas-fueled camp stoves are lawful in designated campsites or picnic areas, which is necessary to provide allowances for fire sources that are highly controlled. The proposed new rule also would specifically allow park personnel to prohibit open fires when the department has determined that a fire danger exists or when a burn ban has been instituted by local government ordinance, which is necessary to address situations in which the temporary or persistent danger of open fires to a park, staff, or visitors necessitates the prohibition of their construction. The proposed new section also creates a stipulation that the gathering of firewood be by permit only. Staff has attempted on an informal basis to discourage the collection of firewood by park visitors; however, there have been instances where such encouragement has been ignored, and the department therefore believes that the creation of an offense is justified. In many parks, firewood is simply not available and the collection of firewood is injurious to vegetative communities, the wildlife that uses vegetative communities, and the aesthetic value of vegetation to visitors. The proposed new section also would stipulate that it is an offense to leave a fire unattended. Unattended fires are a serious potential source of danger to parks, staff, and visitor, and the department believes it is necessary to prohibit them. This provision is similar to current subsection (d), which it replaces.
Proposed new §59.134(i), regarding metal detectors, would make it an offense for any person to operate a metal detector in a state park unless authorized by permit. This provision is very similar to current subsection (l), which it replaces.
Proposed new §59.134(j), regarding minors, would address supervision requirements for minors and the responsibilities of persons supervising minors. The department uses the provisions of Penal Code, §22.041, to require that all children under 15 years of age be supervised by a parent, legal guardian, or other responsible adult over the age of 17. For minors between the ages of 15 and 17, the department desires to allow entry and overnight privileges if the person is accompanied by a parent or guardian, if the person possesses written consent from a parent or legal guardian, if the person is part of a group that is supervised by a responsible adult, or if the person is legally married. This subsection provides that "overnight hours" is the time between the state parks' closing time and opening time. This subsection also clarifies that supervision of a minor requires at least one adult for every 15 persons required to be supervised. Also, the subsection clarifies that the person supervising a person under age 17 is responsible for the conduct of the person under age 17. The department's intent is to allow minors to use and enjoy state parks, but only under safe and supervised conditions. This provision is similar to current subsections (u) and (m), which it replaces.
Proposed new §59.134(k), regarding motor vehicles, would address prohibited conduct regarding operation of a motor vehicle, parking, speed limits, traffic and trail use. The proposed new subsection would require vehicles and trailers to be confined to designated roads and parking areas and create an offense for operating a vehicle in a state park if the vehicle is not licensed and inspected as required by Texas motor vehicle laws, except as specifically authorized by permit. The department has determined that vehicles that are not licensed or inspected as required by state law are a safety hazard to staff and visitors and should be prohibited except by permit, such as vehicle use by disabled persons during public hunting activities. The proposed new subsection also requires compliance with applicable speed limits and the operation of a vehicle in a way that ensures safety and does not interfere with other user's enjoyment of a state park. The proposed new subsection is intended to provide more explicit detail in the description of the sorts of places to which the rule applies. This provision is similar to current subsections (p), (n), (s), and (r), which it replaces.
Proposed new §59.134(l), regarding natural and cultural resources, would make it an offense for any person to disturb or destroy plant life, geological features or cultural features in a state park and prohibit the transplantation of plants in state parks. There have been incidents in which persons have attempted to plant various types of vegetation in state parks. In order to protect the environment in state parks, the department must prohibit introductions of plant life, which could be injurious by spreading pathogens or disease or pernicious by displacing or adversely affecting native vegetation. The department believes it is necessary to add additional detail to this definition in order to make completely clear that cultural resources include buildings, structures, cultural features, rock art, and artifacts. The proposed new section would allow the disturbance of cultural artifacts by written order of the executive director, which would be necessary only in rare instances in which such disturbance is an unavoidable consequence of some other necessary activity. This provision is similar to current subsections (c), (cc), and (dd), which it replaces.
Proposed new §59.134(m), regarding peace and quiet, would make it an offense for any person to create disturbances within a state park or to create excessive noise, which is noise that is capable of negatively affecting other park users. Additionally, the proposed new rule would allow the department to establish specific allowable noise levels for specific parks or parts of parks by written order of the director. The proposed new subsection is necessary because the enjoyment of park visitation can be ruined by loud, obnoxious, or unwanted intrusions of noise. To keep noise at a level that does not negatively affect other park users, the department has determined that it is necessary to provide for an offense for creating noise capable of negatively affecting other park users, and, if necessary, to establish noise levels in specific places by order of the executive director. This provision is similar to current subsection (v), which it replaces.
Proposed new §59.134(n), regarding public nudity, would make it an offense for any person to appear nude in a state park. This provision is very similar to current subsection (h), which it replaces.
Proposed new §59.134(o), regarding soliciting, would make it an offense for any person to solicit funds or sell items on a state park unless authorized by the director. This provision is similar to current subsection (o), which it replaces.
Proposed new §59.134(p), regarding water recreation, would make it an offense for any person to swim, boat, or participate in other water recreation except in authorized areas at authorized times. This provision would also prohibit glass containers in swimming areas. This provision is similar to current subsections (x) and (y), which it replaces.
Proposed new §59.134(q), regarding water, wastewater, sewage, and garbage, would make it an offense for any person to use or dispose of water or trash in a state park unless otherwise authorized. This provision is similar to current subsections (ee) and (ff), which it replaces.
Mr. Walt Dabney, State Parks Division Director, has determined that for each of the first five years that the rules as proposed are in effect, there will not be fiscal implications to state or local government as a result of enforcing or administering the rules.
Mr. Dabney also has determined that for each of the first five years the rules as proposed are effect, the public benefit anticipated as a result of enforcing or administering the rules will be clearer and more understandable rules, improved guidance for the classification and operation of properties of all types within the state park system, and improved provisions for the health, safety, and enjoyment of park visitors.
Under the provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses and micro-businesses. The department has determined that there will be no direct economic effect on small or micro-businesses or persons required to comply as a result of the proposed rules. The rules would not compel or mandate any action on the part of any entity, including small businesses or micro-businesses.
The department has not drafted a local employment impact statement under the Administrative Procedure Act, §2001.022, as the agency has determined that the rules as proposed will not impact local economies.
The department has determined that Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rules.
The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rules.
Comments on the proposal may be submitted to Kevin Good, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4415 (e-mail: kevin.good@tpwd.state.tx.us).
SUBCHAPTER C. ACQUISITION AND DEVELOPMENT OF HISTORIC SITES, BUILDINGS AND STRUCTURES
The amendments are proposed under the authority of Parks and Wildlife Code, §13.001, which requires the commission to establish a classification system for state parks; natural areas, or historical sites and to adopt rules governing the acquisition and development of recreational areas, natural areas, or historical sites; §13.011, which authorizes the commission to adopt reasonable rules for accepting or purchasing sites, for determining the suitability of sites, and for establishing the priority of accepting and marking the sites; §13.101 and §13.102, which authorizes the commission to promulgate regulations governing the health, safety, and protection of persons and property in state parks, historic sites, scientific areas, or forts under the control of the department, including public water within state parks, historic sites, scientific areas, and forts; §13.0145, which authorizes the commission to enforce speed limits.
The proposed amendment affects Parks and Wildlife Code, Chapter 13.
§59.41.General Statement.
(a) - (b) (No change.)
(c) Although the commission recognizes that certain
historic sites have been and will continue to be authorized by specific
statutes, this section is directed toward the implementation of §13.005,
Texas Parks and Wildlife Code, which designated the Parks and Wildlife
Department as a [the] state agency responsible
for acquisition and administration of state historic sites, buildings
and structures.
(d) - (e) (No change.)
§59.42.Chronology and Thematic Organization.
(a) The executive director is directed to organize
historic sites presently in department ownership into an overall thematic
structure and to recommend for acquisition historic sites which will
complement a full [balanced] interpretation
of the heritage of Texas.
(b) - (c) (No change.)
§59.43.Acquisition Guidelines.
(a) In order to be considered for acquisition, historic sites, buildings and structures must evidence a significant association with the broad history of the state as defined in §13.005, Texas Parks and Wildlife Code. Such historic sites and structures include the following.
(1) - (3) (No change.)
(4) A structure or site that contributes significantly
to the understanding of pre-European contact inhabitants of what
became Texas [aboriginal man in the nation or state].
(b) (No change.)
§59.44.Development Guidelines.
(a) - (b) (No change.)
(c) The commission finds that a state historic sites program representing the broad heritage of the State of Texas depends upon the conservation of structures and sites possessing outstanding historical or cultural significance. To ensure the highest degree of professional proficiency in restoration and preservation, the commission directs the executive director to establish an equitable system for the awarding of projects to private firms desiring departmental restoration contracts, considering the following.
(1) Architectural/engineering firms. The commission
directs the executive director to ensure that all sources of information
are utilized regarding the qualifications and competence of architectural/engineering
firms desiring restoration work with the department. These sources
include Comptroller of Public Accounts - Texas Facilities Commission
[General Services Commission] files on all firms
expressing an interest in state building projects, departmental files
on private firms expressing an interest in restoration projects, Texas
Historical Commission files, and professional societies with architectural/engineering
disciplines. The formulation and subsequent approval of the historical
development plan shall precede the selection of a suitable firm inasmuch
as this facilitates the consideration of firms which have exhibited
a proficiency commensurate with the nature of the specific project,
and should meet Secretary of the Interior Standards for Rehabilitation.
Consultation with the various firms under consideration if marginal
qualifications exist shall be a standard procedure to further determine
the firms' capabilities for the approved project.
(2) (No change.)
§59.45.Methods of Additional Funding Other Than Departmental.
[(a)] The executive director is directed
to investigate the availability of any funding sources other than
departmental sources for use in the acquisition or development of
historic sites. Application should be made for any available funding
which conforms to similar department grant applications in other areas,
such as outdoor recreation.
[(b) The executive director
is directed to present available grant awards to the commission for
their consideration prior to department acceptance of funds under
such grants.]
§59.46.Maintenance Guidelines.
(a) Recognizing that the maintenance of historic structures differs from the maintenance of other buildings in that the primary goal is the preservation of originality in design, materials, and craftsmanship, the commission finds that it is mandatory that persons involved with maintenance of such sites respect the relationship between the past and present, and possess an appreciation of the preservation of the old fabric of the building, thus it is imperative that an understanding be gained of the particular problems involved with the maintenance of historic buildings in order to successfully accomplish this preservation goal. The commission finds that it is the responsibility of any staff member involved with the maintenance of historic buildings to become thoroughly familiar with the building itself, to study carefully the intimate values and nature of the site to gain a knowledge of how it was built, to appreciate the craftsmanship involved and to recognize potential difficulties, thereby gaining added insight and understanding of the structure to achieve the foremost maintenance goal of keeping the structure and grounds in the best possible condition at all times. Personnel should be familiar with the Secretary of the Interior's Standards for the Treatment of Historic Properties and other professional standards.
(b) (No change.)
§59.47.Personnel Selection and Training Guidelines.
(a) (No change.)
(b) Recognizing the important duties and potential contributions of historic sites personnel, the commission directs the executive director to implement the following guidelines in selecting and regular training of parks personnel to be employed at historic sites:
(1) - (3) (No change.)
(4) To increase the historic site personnel knowledge
of the heritage of the state, the training program shall provide comprehensive
surveys of Texas history, archeology [prehistory],
and architecture with emphasis based on the particular sites. The
survey should include a selected bibliography, enabling the personnel
to complement their knowledge of the three disciplines.
(5) - (6) (No change.)
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on February 9, 2009.
TRD-200900505
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Earliest possible date of adoption: March 22, 2009
For further information, please call: (512) 389-4775
The amendments are proposed under the authority of Parks and Wildlife Code, §13.001, which requires the commission to establish a classification system for state parks; natural areas, or historical sites and to adopt rules governing the acquisition and development of recreational areas, natural areas, or historical sites; §13.011, which authorizes the commission to adopt reasonable rules for accepting or purchasing sites, for determining the suitability of sites, and for establishing the priority of accepting and marking the sites; §13.101 and §13.102, which authorizes the commission to promulgate regulations governing the health, safety, and protection of persons and property in state parks, historic sites, scientific areas, or forts under the control of the department, including public water within state parks, historic sites, scientific areas, and forts; §13.0145, which authorizes the commission to enforce speed limits.
The proposed amendment affects Parks and Wildlife Code, Chapter 13.
§59.61.General Objectives.
In guiding the mission [purpose and scope]
of the Texas Parks and Wildlife Department State Park System
[public lands], the objectives of the Texas Parks and Wildlife
Commission are:
(1) to seek out and protect [through education,
cooperative agreements, partnerships, conservation easements, and
acquisition] high quality examples of the state's [
State's] natural and cultural heritage, and sensitive habitats
or resources;
(2) to provide opportunities for sustainable, resource-based [
resource based] outdoor recreation;
(3) to encourage [impart to the people of Texas
] an understanding and appreciation of the state's [State's
] cultural, historical and natural heritage;
(4) to promote environmental education, research, and
demonstration of the best management practices in the stewardship
of the state's [State's] diverse natural and
cultural resources; and
(5) to join with all the citizenry of this and other states and nations in promoting the conservation of natural, historical and recreational resources.
§59.62.Parks and Wildlife Land Classification--Policy.
It is the policy of the Parks and Wildlife Commission that:
(1) The executive director is authorized to implement
the following classification and guidelines for existing and future
lands managed or operated by the department [owned
or leased by Texas Parks and Wildlife Department, except coastal preserves,
scientific areas, fish hatcheries, boat ramps and administrative properties
]. The [Initial classification and subsequent
classification changes shall be subject to] Texas Parks and
Wildlife Commission shall determine the appropriate classification
[review and approval].
(2) Classification of departmental lands under this system will not affect existing site names, naming policy, on-site signage or literature unless a new category so changes uses that it is misleading. Multiple classifications may occur within individual sites and the use of a specific name may be for convenience or to indicate a primary classification without precluding uses set forth under other classification categories.
(3) The use and management of individual units of the
state park system [Department lands
] will be addressed on a site-specific [site specific
] basis, in accordance with the classification system
and appropriate management plans [
, as management plans are developed and refined with
opportunity for appropriate public input. Management plans shall optimize
opportunities for public hunting and other public uses when appropriate
on all Department lands].
(4) Prior to classification or formal approval of individual
site management plans for specific units of the state park system
[public lands
], provision for public use shall be made in accordance
with sound biological management and cultural resource preservation,
taking into consideration past patterns of use, and existing rules
and regulations.
(5) Units of the state parks system will be classified
as a State Park, a State Natural Area, a State Historic Site, or a
State Park and Historic Site. [In interpreting this title,
the serial designation of topics under a heading is not intended to
denote a priority order or a preference. Furthermore, the term "may"
is intended to be permissive and authorize discretion, the term "should"
is intended to be directory and identify a preference when no other
constraining conditions are applicable, and the term "shall" is intended
to be mandatory and require the prescribed action or decision. In
all such cases, all applicable antecedent conditions are prerequisites
to a final action or decision.]
(6) Properties operated and managed by the department as defined and described in Parks and Wildlife Code, §81.401 and §65.191 of this title (relating to Definitions) shall be classified as Wildlife Management Areas.
§59.63.Definitions.
The following words and terms, when used in this chapter [
title], shall have the following meanings, unless the context
clearly indicates otherwise.
[(1) Ecoregion--One of
the ecological regions or subregions of Texas, based on the primary
vegetational types, as broadly defined by:]
[(A) Schuster J.L. and S.L. Hatch. 1990. Texas Plants--An Ecological Summary in: Checklist of the Vascular Plants of Texas. S.L. Hatch, K.N. Gandhi, and L.E. Brown. MP-1655. TAES, TAMU, College Station, Texas; or]
[(B) L.B.J. School of Public Affairs. 1978. Preserving Texas' Natural Heritage. L.B.J. School of Public Affairs, University of Texas, Austin, Texas; or]
[(C) Gould, F.W. 1962. Texas Plants--A Checklist and Ecological Summary. MP-585. TAEX Bulletin, TAMU, College Station, Texas. 112pp.]
(1) [(2)] Low Impact Public Use--
Development or use of a site which results in minimal long-term irreversible
adverse impact, or is within acceptable limits of change [Use
or development of a specific site to minimize long term irreversible
impact].
(2) [(3)] Management plan--A
document that sets forth the framework for resource stewardship, conservation,
public use, facility maintenance, operations and public safety for
a specific unit (or subunit) of [Parks and Wildlife] lands
within the state park system.
(3) [(4)] Natural biodiversity--The
complement of indigenous plants and animals that is expected
to occur on an ecological site type, in natural communities or over
a landscape.
(4) [(5)] Natural communities--An
assemblage of organisms indigenous to an area that [which
] is characterized by a distinct combination of species occupying
habitats or [common] ecological zones and interacting
with one another, their environment, and natural processes.
An array of plants and animals expected for any given ecological site type.
(5) [(6)] Public Hunting--Hunting
by the public of wildlife, including feral and exotic species on departmental
controlled lands as authorized by the Commission under the Public
[Hunting] Lands [Hunting and Fishing
] Proclamation.
(6) [(7)] Public Use--Resource-oriented
recreation or other site-appropriate uses permitted under Subchapter
F of this chapter (relating to State Park Operational Rules) [
Resource oriented recreation or other site appropriate uses, which
may include bicycle riding, birdwatching, boating, camping, canoeing,
driving and walking nature trails, field trials, fishing, hiking,
horseback riding, hunting, nature study, photography, rock climbing,
swimming, wildlife viewing, or other appropriate activities].
(7) [(8)] Resource Oriented Recreation--Recreational
activities the enjoyment of which is dependent upon or enhanced by
a natural resource, consistent with applicable rules and policies
of the department.
(8) [(9)] Sound Biological Management--The
use of the best science-based information available to
the department [Texas Parks and Wildlife Department]
in setting living resources management goals and objectives and
in determining the techniques to be used in achieving those
goals, including best management practices determined by the
Parks and Wildlife Commission.
(9) [(10)] Sustainability--The
capability of natural systems to maintain themselves over time as
defined by site-specific, measurable [site specific]
management goals and objectives.
(10) [(11)] Wilderness-type [Wilderness
Type] Experience--Recreational activities, in a natural
setting, intended to provide the user with an unimpaired
experience [the wildlerness associated benefits]
of open space, solitude, and few man-made intrusions[, in a natural
setting].
§59.64.Classification and Guidelines.
[(a) Classification. Game
Management Areas. Game Management Areas are areas dedicated to wildlife
management, research, demonstration, and appropriate public use.]
[(1) Selection.]
[(A) Game Management Areas should be areas possessing significant or potentially significant habitat values for the management and protection of wildlife and natural resources.]
[(B) Game Management Areas should be of sufficient size to provide opportunity for research and management of the wildlife and natural resources.]
[(C) Game Management Areas should be located to be representative of an ecoregion, or to meet priority wildlife habitat needs, or to provide education, hunting and other appropriate outdoor recreational opportunities for the public.]
[(2) Development.]
[(A) Facilities and supporting developments on Game Management Areas should be located and designed to minimize disturbance to natural and cultural resources.]
[(B) Long-term major facility development should be limited to selected Game Management Areas identified for their research, education, demonstration and public use values.]
[(C) Development of appropriate recreational facilities on Game Management Areas should be provided when there is a demonstrated demand.]
[(D) Capital improvements on Game Management Areas should provide the opportunity to enhance habitats and conditions for wildlife populations, demonstrate integrated agricultural practices beneficial to wildlife and their habitats, and provide access for appropriate public use.]
[(3) Operation.]
[(A) Game Management Areas should be operated to provide opportunities for the research, education and/or demonstration of effective wildlife habitat management practices.]
[(B) Game Management Areas may be operated to provide opportunities for outdoor classroom and other interpretive effort.]
[(4) Use.]
[(A) Game Management Areas may provide public hunting opportunity, when such use is not detrimental to the primary goals and management of the area and sound biological management, location, physical conditions, safety and other uses permit.]
[(B) Game Management Areas may provide other appropriate resource oriented recreation primarily through low impact public use, when such use is not detrimental to the long term stewardship and conservation of the natural and cultural resources as identified in the site management plan and as other uses permit.]
[(5) Management.]
[(A) Game Management Areas should be managed to maintain or enhance wildlife habitat and populations as such management is consistent with the site management plan.]
[(B) Game Management Areas should be managed for the research, education and demonstration of effective wildlife habitat management practices.]
[(C) Game Management Areas should be managed, consistent with the site management plan, to address habitat needs of indigenous flora and fauna including species and communities listed as threatened or endangered or species of special concern as identified by staff.]
(a) [(b)] State Parks [
Classification: Recreational Areas]. State Parks [
Recreational Areas
] are areas of natural or scenic character, often containing
historical, archeological, ecological, or geological values selectively
developed to provide resource-oriented recreational opportunities.
(1) Selection.
(A) State Parks [Recreational Areas]
should be areas possessing natural or scenic values, that are adaptable
to both active and passive recreational development and use;
(B) State Parks [Recreational Areas]
should be located to help meet the priority recreational needs of
Texans, or where outstanding natural values of statewide significance
create a substantial recreation demand; and
(C) State Parks [Recreational Areas]
should provide recreational opportunities capable of attracting significant
visitation on a regional or statewide basis.
(D) New acquisitions should normally include a minimum of 500 acres of land, but may include less in the case of an extraordinary recreational resource of statewide significance.
(2) Development.
(A) State Parks [Recreational Areas]
should be developed to optimize recreational opportunities afforded
by the site and to provide for a variety of facilities and activities
while retaining the character of the natural setting.
(B) Intensity of development of a State Park [
Recreational Area] should provide for the sustainability of
the resource [and should generally not exceed a ratio of one
developed acre to four undeveloped acres].
(C) Recreation facilities and supporting developments should be located and designed to minimize disturbance to natural and cultural resources.
(3) Operation.
(A) Visitor information and interpretive programs should be emphasized to provide the visitor with a more complete understanding of park resources and meaningful recreational experience.
(B) State Parks [Recreational Areas]
should be operated in an economically efficient manner, with
appropriate cost recovery [striving toward self-sufficiency], while not compromising the natural or cultural resources or the enjoyment
thereof.
(4) Use.
(A) State Parks [Recreational Areas]
should provide for a variety of resource oriented recreation and public
uses not detrimental to the long term stewardship and conservation
of the natural and cultural resources as identified in the site management plan.
(B) State Parks [Recreational Areas]
may provide public hunting opportunity when such use is not detrimental
to the primary goals and management of the area, and sound biological
management, location, physical conditions, safety and other uses permit.
(5) Management.
(A) Resources within State Parks [Recreational Areas
] should be managed to provide the opportunity for a quality
and appropriate recreational experience while maintaining the
natural, cultural and scenic features of the park.
(B) Habitat management should emphasize maintenance and restoration of natural communities, and natural biodiversity.
(C) State Parks [Recreational Areas]
should be managed, consistent with the site management plan, to address
habitat needs of indigenous flora and fauna including species and
communities listed as threatened or endangered or species of special
concern as identified by staff.
(b) [(c)] State [Classification:
] Natural Areas. State Natural Areas are areas established
for the protection and stewardship of outstanding natural attributes
of statewide significance, which may be used in a sustainable manner
for scientific research, education, aesthetic enjoyment, and appropriate
public use not detrimental to the primary purposes.
(1) Selection.
(A) State Natural Areas should encompass examples of natural scenic beauty, natural communities, biological features, sensitive areas, or geological formations of statewide significance, or possess exceptional educational or scientific values.
(B) State Natural Areas [areas]
should be large enough to protect the integrity of the features being
protected, with adequate buffers to provide for public access and
resource protection, and where feasible, include sufficient area to
provide for a wilderness-type experience.
(C) New acquisitions should be selected on a priority basis determined by statewide significance, natural condition, and the degree to which the resource is threatened.
(D) State Natural Areas [areas]
which duplicate the primary significance of a site presently preserved
in public ownership will receive a lower priority for acquisition
than those types of areas currently unrepresented in the public domain.
(2) Development.
(A) Development in State Natural Areas should be low-density in nature and limited to that appropriate for adequate control and sustainability of the resource, and for visitor access.
(B) Recreational development should be provided only where it facilitates additional appreciation of the unique resource and should not be detrimental to the natural environment nor encroach upon, damage or impair the scenic or natural features concerned.
(3) Operation.
(A) State Natural Areas should be operated in an economically efficient manner, emphasizing resource protection over public use and revenue generation.
(B) Visitor information and interpretation should be emphasized in State Natural Areas to increase the visitor's understanding and appreciation of the resource being preserved.
(4) Use.
(A) State Natural Areas should accommodate low impact, resource oriented recreation, not detrimental to the continued preservation and stewardship of the natural and cultural features as outlined in the site management plan.
(B) State Natural Areas may provide public hunting opportunity when such use is not detrimental to the primary goals and management of the area and as sound biological management, location, physical conditions, safety and other uses permit.
(5) Management.
(A) State Natural Areas should be managed, consistent with the site management plan, to insure the protection and perpetuation of the scenic or outstanding natural features.
(B) Habitat management should emphasize maintenance or restoration of natural communities and natural biodiversity, consistent with the primary goals of the area.
(C) State Natural Areas should be managed, consistent with the site management plan, to address habitat needs of indigenous flora and fauna including species and communities listed as threatened or endangered or species of special concern as identified by staff.
(c) [(d)] State Historic Sites [
Classification: Historical Areas]. State
Historic Sites [Historical Areas
] are areas established
for the preservation, interpretation and public enjoyment [
use] of prehistoric and historic resources of statewide or national
significance.
(1) Selection.
(A) State Historic Sites [Historical Areas
] should have a significant association with the broad
history of the state [State] as defined in
Parks and Wildlife Code, §§13.005, 13.010, 13.011, and 13.301
[the Texas Historical Sites and Structures Act, Texas Civil Statutes,
Article 6081s].
(B) The detailed selection criteria set out in the
Historic Sites and Restoration Program Policy Statement, Section III,
Acquisition Guidelines, as adopted by the Parks and Wildlife Commission,
will serve as the guiding policy for selection of State Historic
Sites [Historical Areas].
(2) Development.
(A) Development of recreational features at State Historic Sites
should only be provided when there is a demonstrated
demand for these facilities and/or when they facilitate additional
appreciation of the historic resource, and where such facilities and
activities are not detrimental to the overall historical significance
of the site [program of the area], and the natural
environment.
(B) The intensity of recreational development at State Historic Sites should be within the carrying capacity of the resource, and facility design and construction materials should be tasteful and when feasible consistent with the character of the historical feature.
(3) Operation.
(A) Preservation [All preservation],
interpretation, [representation,
] restoration, and/or reconstruction activities at State Historic Sites
should be in accord
with documented historical, archeological and architectural information.
(B) The historical and aesthetic integrity of a
State Historic Site [Historical Area] should
be preserved, and encroachments from conflicting uses or facilities
should be avoided. Original material and
character-defining elements [design intent
] should not be obscured or destroyed
to facilitate interpretation, or promote visitor convenience except
when unavoidable to comply with rules or statutes pertaining to health,
safety or architectural barriers.
(C) Interpretation of State Historic Sites [
Historical Areas] should reflect the overall statewide historical
significance of the area.
(4) Use.
(A) State Historic Sites [Historical Areas
] should provide for sustainability and resource-oriented
[resource oriented] recreation or public uses that
are not detrimental to the long term stewardship of the cultural and
natural resources.
(B) State Historic Sites [Historical Areas
] may provide public hunting opportunity when such use
is not detrimental to the primary goals and management of the area
and as sound biological management, location, physical conditions,
safety and other public uses permit.
(5) Management.
(A) State Historic Sites [Historical Areas
] should be managed to insure the continued conservation
of significant cultural features.
(B) When natural resources are a significant component of
a State Historic Site [an Historical Area],
natural resource [habitat] management should emphasize
maintenance and restoration of natural communities, and natural biodiversity,
consistent with the primary goals of the area.
(C) State Historic Sites [Historical Areas
] should be managed, consistent with the site management
plan, to address habitat needs of indigenous flora and fauna including
species and communities listed as threatened or endangered or species
of special concern as identified by staff.
(d) State Park and Historic Sites. A State Park and Historic Site is an area established for the preservation, interpretation and public enjoyment of prehistoric and historic resources of statewide or national significance that also offers substantial recreational opportunities for visitors.
(1) Selection. State Parks and Historic Sites shall be designated by the Commission, using the criteria set forth in this subsection:
(2) Development.
(A) Development of recreational features in a State Parks and Historic Site should only be provided when there is a demonstrated demand for these facilities and/or when they facilitate additional appreciation of the historic resource, and where such facilities and activities are not detrimental to the overall historical significance of the site, and the natural environment.
(B) The intensity of recreational development in a State Parks and Historic Site should be within the carrying capacity of the resource. Facility design and construction materials should be aesthetically pleasing, and when feasible consistent with the character of the historical feature.
(3) Operation.
(A) Preservation, interpretation, restoration, and/or reconstruction activities in a State Parks and Historic Site should be in accord with documented historical, archeological and architectural information.
(B) The historical and aesthetic integrity of a in a State Parks and Historic Site should be preserved, and encroachments from conflicting uses or facilities should be avoided. Original material and character-defining elements should not be obscured or destroyed to facilitate interpretation, or promote visitor convenience except when unavoidable to comply with rules or statutes pertaining to health, safety or architectural barriers.
(C) Interpretation in a State Parks and Historic Site should reflect the significant cultural and natural resources of the site.
(4) Use.
(A) A State Park and Historic Site should provide for appropriate and sustainable resource oriented recreation or public enjoyment that is not detrimental to the long term stewardship of the cultural and natural resources.
(B) A State Park and Historic Sites may provide public hunting opportunity when such use is not detrimental to the primary goals and management of the area and as sound biological management, location, physical conditions, safety and other public uses permit.
(5) Management.
(A) A State Park and Historic Site should be managed to insure the continued conservation of significant cultural features and natural resources.
(B) Natural resource management in a State Parks and Historic Site should emphasize maintenance and restoration of natural communities and biodiversity, consistent with the primary goals of the area.
(C) A State Park and Historic Site should be managed, in accordance with the site management plan, to address habitat needs of indigenous flora and fauna, including species and communities listed as threatened or endangered or species of special concern as identified by staff.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on February 9, 2009.
TRD-200900481
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Earliest possible date of adoption: March 22, 2009
For further information, please call: (512) 389-4775
(Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Parks and Wildlife Department or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeal is proposed under the authority of 31 TAC §505.30, which requires the department to make consistency determinations regarding the Coastal Management Plan.
The repeal affects 31 TAC §505.30.
§59.75.Coastal Management Program.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on February 9, 2009.
TRD-200900479
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Earliest possible date of adoption: March 22, 2009
For further information, please call: (512) 389-4775
The amendments and new section are proposed under the authority of Parks and Wildlife Code, §13.001, which requires the commission to establish a classification system for state parks; natural areas, or historical sites and to adopt rules governing the acquisition and development of recreational areas, natural areas, or historical sites; §13.011, which authorizes the commission to adopt reasonable rules for accepting or purchasing sites, for determining the suitability of sites, and for establishing the priority of accepting and marking the sites; §13.101 and §13.102, which authorizes the commission to promulgate regulations governing the health, safety, and protection of persons and property in state parks, historic sites, scientific areas, or forts under the control of the department, including public water within state parks, historic sites, scientific areas, and forts; §13.0145, which authorizes the commission to enforce speed limits.
The proposed amendment and new section affects Parks and Wildlife Code, Chapter 13.
§59.131.Definitions.
The following words and terms, when used in this subchapter [
chapter], shall have the following meanings, unless the context
clearly indicates otherwise.
[(1) All-terrain vehicle--Any
motor vehicle having a saddle for the use of the rider, designed to
propel itself with three or four tires in contact with the ground.]
(1) [(2)] Arms and firearms--Any
device from which shot, a projectile, arrow, or bolt is fired by the
force of an explosion, compressed air, gas, or mechanical device.
To include, but not limited to, rifle, shotgun, handgun, air rifle,
pellet gun, longbow, cross bow, sling shot, blow gun, or dart gun.
(2) Bicycle--A device that a person may ride, that is propelled by human power, and has two tandem wheels at least one of which is more than 14 inches in diameter.
(3) Artifacts--Objects used or modified by humans, including, but not limited to, arrow points, dart points, stone, bone, or shell implements or any other prehistoric or historic objects.
(4) Boat--A vessel not more than 65 feet in length, measured from end to end over the deck, excluding sheer, and manufactured or used primarily for noncommercial use.
(5) Camping--The act of:
(A) occupying a designated camping facility;
(B) erecting a tent, or arranging bedding, or both, for the purpose of, or in such a manner as will permit, remaining overnight; and/or
(C) using a trailer, camper, or other vehicle for the purpose of sleeping during nighttime hours.
(6) [(5)] Cultural features--Include,
but are not limited to, state archeological landmarks, archeological
sites, historic sites and structures, pictographs and petrogryphs.
(7) [(6)] Department--The Texas
Parks and Wildlife Department.
(8) [(7)] Director--The executive
director of the Texas Parks and Wildlife Department or his or her designee.
(9) Equine--A species of animal belonging to the family equidae, including horses, ponies, donkeys, and mules.
(10) [(8)] Garbage--Trash, refuse,
rubbish, household waste, medical waste, rubble, spoil, construction
debris, yard clippings, offal, or any other similarly useless, noxious,
or offensive material.
(11) Motor Vehicle--For purposes of this subchapter, a motor vehicle does not include a wheelchair, a motorized wheelchair or a motorized mobility device. A motor vehicle is a motor powered vehicle, including, but not limited to:
(A) any motor driven or propelled vehicle required to be registered under the laws of this state;
(B) an all-terrain vehicle as defined in Transportation Code, §502.001;
(C) a motorcycle as defined in Transportation Code, §501.002 and §541.201;
(D) a golf cart, as defined in Transportation Code, §502.001;
(E) a moped as defined in Transportation Code, §541.201;
(F) a neighborhood electric vehicle as defined in Transportation Code, §551.301;
(G) a pocket bike or mini-motorbike, as defined in Transportation Code, §551.301;
(H) an electric bicycle; or
(I) a motor assisted scooter, as defined in Transportation Code, §551.301.
(12) Motorized mobility device--A device designed for transportation of persons with physical disabilities that:
(A) has three or more wheels;
(B) is propelled by a battery-powered motor;
(C) has not more than one forward gear; and
(D) is not capable of speeds exceeding eight miles per hour.
[(9) Motorcycle--A two
wheeled vehicle propelled by an internal combustion engine or other
similarly powered mechanical device, to include motor bikes, mini-bikes,
and trail bikes.]
(13) [(10)] Night--Any time from
1/2 hour after sunset to 1/2 hour before sunrise.
(14) [(11)] Person--Natural persons,
firms, partnerships, corporations, clubs, and all associations or
combinations of persons acting individually, or by an agent, servant,
or employee.
(15) Pet--A domesticated companion animal accompanying a person who enters or uses a state park. In no event shall a pet under this subchapter include the following:
(A) a dangerous wild animal, as defined in Health and Safety Code, §822.101;
(B) wildlife;
(C) livestock and exotic livestock as defined in Agriculture Code, §§1.003, 142.001, and 161.001;
(D) any species of animal that is not ordinarily domesticated; or
(E) any species of animal that a person may not legally possess.
(16) [(12)] Plant life--All plants
including trees, dead or downed wood, shrubs, vines, wildflowers,
grass, sedge, fern, moss, lichen, fungus, or any other member of the
plant family.
(17) [(13)] Public place--Any
place to which the public or a substantial group of the public has access.
The interior spaces of the following are not considered public places:
(A) department [In the state
park system areas that are not considered a public place are]
cabins, screened shelters, recreation halls, group barracks, and lodges
; and [,]
(B) tents, campers, trailers, motor homes, or any enclosed vehicle(s) that are used as camping equipment.
[(14) Public nudity--To
disrobe or appear nude in public. Females are considered to be disrobed
when their breasts below the top of the areola are exposed except
when nursing a baby.]
(18) [(15)] State park--A
state park, state historic site [
park site, historical park], or state natural area
that is [, recreational area or fishing pier,
] administered, operated, or managed by the department.
(19) [(16)] Unattended pet--A
pet that is unaccompanied or not under immediate control
of the person responsible for the pet. Pets tied or secured outside
of camping equipment or buildings are not considered under immediate control.
(20) [(17)] Wildlife--A
species, including each individual of a species, that normally lives
in state of nature is not ordinarily domesticated [Any
wild animal, bird, amphibian, reptile, fish, shellfish, aquatic life,
or invertebrate].
§59.132.General Rules.
(a) Upon finding a need for public safety or welfare, or preservation of park resources, the director may impose restriction on public activity and conduct and may limit the use of any area or facility in a state park or a portion thereof. It is an offense for a person to enter or remain in an area or participate in an activity so restricted by the director.
(b) An employee of the department, peace officers,
and emergency personnel are exempt from this subchapter [
chapter] when this subchapter [chapter]
conflicts with the discharge of his or her [their]
official duties to the extent of that conflict.
(c) The director by written order may waive any provision of this subchapter in response to a natural disaster or other similar emergency.
(d) [(c)] Any vehicle, boat,
trailer, or other property found parked, stored, or left in a state
park in violation of any law or rule may be removed and stored at
the owner's expense.
(e) [(d)] No person may enter
a state park with an equine or equines, or cause the entry of an equine
or equines to a state park, unless that person has in his or
her [their] immediate possession, for each equine
in the person's custody or equine that the person allowed to enter
the state park, a completed VS Form 10-11 (Texas Animal Health Commission)
showing that the equine has tested negative to an official Equine
Infectious Anemia test within the previous 12 months. The documentation
required by this subsection shall be made available for inspection
upon the request of any department employee acting within the scope
of official duties.
§59.133.Closing Hours and Overnight Use.
(a) The director by written order may establish closing hours and opening hours for a state park or a portion of a state park. Closing hours or opening hours shall be posted.
(b) Except for persons [duly] authorized by
the department to use a camping facility,
trailer space, shelter, cabin or lodge facilities, or boat ramp, or
for persons who have paid the overnight activity use fee, it is an
offense for a person to enter into or remain within a state park between
the closing hour and the opening hour.
§59.134.Rules of Conduct in Parks.
(a) Abandoned and unattended property. It is an offense for any person to:
(1) abandon a vehicle or other personal property;
(2) leave a vehicle, boat, barge, or other property unattended in a unit of the state park system in such a manner as to create a hazardous or unsafe condition; or
(3) leave property unattended in a state park without having received prior permission from the director or to leave a vehicle unattended after the closing hour, unless such person is legally in the park after closing, and unless he has parked the vehicle in a place designated by the director or he has prior permission from the director.
(b) Alcoholic beverages. It is an offense for any person to:
(1) consume or display an alcoholic beverage in a public place; or
(2) sell alcoholic beverages within a state park.
(c) Animals. Except as provided in this subsection, it is an offense for any person to bring into a state park, possess while in a state park, or release into a state park any species of animal. A pet or equine may be brought into and possessed within a state park as provided in this subsection.
(1) Equine. It is an offense for any person to:
(A) ride, drive, lead, or keep equines, except in designated areas;
(B) ride equines in a manner that is dangerous to a person or animal;
(C) allow equines to stand unattended or insecurely tied; or
(D) hitch equines to a tree, shrub, or structure in any manner that may cause damage.
(2) Pets. It is an offense for any person to:
(A) bring into, possess, or permit to roam within a state park a pet, unless the pet is secured by a leash not exceeding six feet in length, confined in a vehicle, or confined in a suitable cage;
(B) bring into or possess within a state park an unattended pet;
(C) fail to immediately collect and properly dispose of fecal material deposited by a pet for which a person is responsible. For purposes of this paragraph, "properly dispose" means to deposit fecal material in an appropriate solid waste collection container;
(D) bring a pet into an area where pets are prohibited;
(E) permit a pet (except a trained assistance animal accompanying a person with a disability) to enter into or remain in any building or enclosure designated for public use including, but not limited to, a restaurant, snack bar, cabin, lodge room, restroom, park store, shelter, refectory building, amphitheater, administration building, or railroad coach;
(F) permit a pet in the water of a designated swimming area or to permit a pet animal (except a trained assistance animal accompanying a person with a disability) within the land or beach area adjacent to the water of a designated swimming area; or
(G) possess a noisy, vicious, or dangerous pet, or a pet which creates a disturbance to or hazard within a state park;
(3) Wildlife. It is an offense for any person to:
(A) harm, harass, disturb, trap, confine, catch, possess, or remove any wildlife, or portions of wildlife from a unit of the state park system, except by a permit issued by the director or as provided by the Parks and Wildlife Code, Chapter 62, Subchapter D;
(B) release any fish into the waters of any state park, except as authorized by the Parks and Wildlife Code; or
(C) feed or offer food to any wildlife or exotic wildlife, or to leave food unsecured in a manner that makes the food available to wildlife or exotic wildlife, unless specifically authorized by the department. The feeding of birds may be permitted on a park-by-park basis as prescribed by the department.
(d) Arms and Firearms. It is an offense for any person to display or discharge an arm or firearm in a state park, unless:
(1) the person is participating in a public hunting activity within the state park that has been authorized by written order of the director so long as the person is in compliance with the applicable public hunting rules and regulations; or
(2) the person has been authorized by written order of the director.
(e) Closed Area. It is an offense for any person to:
(1) prevent or interfere with development, construction, or management of a state park; or
(2) enter or remain in an area of a state park that has been closed by the director for any reason, including security, safety, preservation, or restoration.
(f) Entrance and User Fees: It is an offense for any person to enter, use, or occupy a facility in any portion of a state park for which a fee has been established, unless the person has first paid the fee or satisfied the requirements of the fee, has received an entrance/use permit issued by the department, and has attached the permit to their vehicle as and when required by the permit. If the office is closed, payment must be made according to posted instructions or signage.
(g) Facilities Use. It is an offense for any person to:
(1) use an area or facility for any purpose contrary to its designated purpose; or
(2) keep, use, or arrange a motor vehicle, trailer, camping, or other equipment except as specified by the director. All vehicles and trailers are restricted to designated roads and parking areas, unless otherwise specified by permit;
(3) enter into, or remain in, an area or facility for which a public use limit has been established when such action will have the effect of exceeding the established limitations;
(4) exceed the public use limit establishing a maximum number of persons and, if appropriate, the number and type of motor vehicles, trailers, and equipment permitted to enter into, or remain in, a designated area or facility at any time;
(5) continue to occupy a facility past check-out time when a check-out time has been established by the director; or
(6) engage in camping except as authorized by permit in areas designated or marked for that purpose.
(h) Fires, Firewood, Smoking and Fireworks. Portable gas-fueled camp stoves may be used in designated campsites or picnic areas; however, it is an offense for any person to:
(1) light, build, or maintain a fire within a state park except in a facility or device provided, maintained, or designated for such purposes or to smoke or build fires when an extreme fire hazard has been posted by the department or a burn ban has been instituted by local government ordinance;
(2) gather firewood except when authorized by permit;
(3) leave a fire unattended; or
(4) possess within a state park any fireworks, explosives, or similar devices capable of explosion, or to discharge, set off, or cause to be discharged in or into a state park any such device or substance, except with written authorization from the director.
(i) Metal detector. It is an offense for any person to operate or use a metal detector, except as authorized by permit.
(j) Minors and children.
(1) A person younger than 15 years who enters a state park, must be supervised by a parent, legal guardian, or other responsible adult over the age of 17 years at all times.
(2) A person older than 15 years, but younger than 17 years may not enter or remain in a state park during overnight hours unless:
(A) the person is supervised by a parent, legal guardian or other responsible person over the age of 17 years;
(B) the person furnishes written consent of a parent or legal guardian to park personnel at the state park headquarters. For purposes of this subsection, written consent consists of a statement from a parent or legal guardian authorizing the person to enter the park and stating the full name, residence address, and telephone number of the parent or legal guardian; or
(C) the person is legally married.
(3) For purposes of this subsection, a person who is required by this subsection to be supervised and is part of a group will be considered supervised by a parent, legal guardian or other responsible person if there is at least one supervising adult over the age of 17 years for every 15 persons for whom supervision is required by this subsection.
(4) For purposes of this subsection, "overnight hours" is the time between a state park's closing time and opening time.
(5) It is an offense for a parent, legal guardian or other responsible person charged with supervision of a person under 17 years of age to permit the person under 17 years of age to violate a regulation contained in this subchapter.
(k) Motor Vehicle Use, Possession and Operation.
(1) Operation. It is an offense for any person to:
(A) operate a motor vehicle in a state park except on roads, driveways, parking areas, and areas designated as open for motor vehicle use;
(B) operate a motor vehicle in a state park if the motor vehicle is not licensed and inspected as required by the Texas Transportation Code or other law regarding the operation of motor vehicles, except as specifically authorized by permit; or
(C) operate a motor vehicle in a state park in a manner not authorized by the Texas Transportation Code or other laws regarding the operation of motor vehicles.
(2) Parking. It is an offense for any person to:
(A) park a motor vehicle or trailer in a state park except in areas designed, constructed, or designated for that purpose; or
(B) park, store, or leave a motor vehicle or trailer in violation of this section when signs have been posted in the affected areas.
(3) Speed Limit. It is an offense for any person to drive a motor vehicle within a state park at a speed:
(A) greater than is reasonable or prudent, having due regard for the traffic and the road conditions then existing;
(B) that endangers the safety of persons or property; or
(C) that exceeds the posted speed limit in any portion of the state park system.
(4) Traffic. It is an offense for any person to:
(A) operate a motor vehicle in a state park between the park closing hour and 6 a.m. opening hour, except for emergency or necessary purposes; or
(B) operate a motor vehicle in an indiscriminate or unnecessary manner (cruising).
(5) Trail use. It is an offense for any person to operate or use a motor vehicle or a bicycle on an unpaved road, trail, or path not designated and posted for use by such a motor vehicle or bicycle or use the trail in a manner that is dangerous to a person or animal.
(l) Natural and Cultural Resources.
(1) Plant life. It is an offense for any person to willfully mutilate, injure, destroy, pick, cut, remove, or introduce any plant life except by permit issued by the director.
(2) Geological features. It is an offense for any person to take, remove, destroy, deface, tamper with, or disturb any rock, earth, soil, gem, mineral, fossil, or other geological deposit except by permit issued by the director.
(3) Cultural resources. It is an offense for any person to take, remove, destroy, deface, tamper with, disturb, or otherwise adversely impact any prehistoric or historic resource, including but not limited to, buildings, structures, cultural features, rock art, or artifacts, except by written order of the director.
(m) Peace and quiet. It is an offense for any person to:
(1) disturb other persons in sleeping quarters or in campgrounds between the hours of 10 p.m. and 6 a.m.;
(2) cause, create, or contribute to any noise which is broadcast, or caused to be broadcast, into sleeping quarters or campgrounds, or which emits sound beyond the person's immediate campsite, between the hours of 10 p.m. and 6 a.m., whether by shouting or singing, by using a radio, phonograph, television, or musical instrument, or by operating mechanical or electronic equipment;
(3) use electronic equipment, including electrical speakers, at a volume which emits sound beyond the immediate individual camp or picnic site at any time without specific permission of the director; or
(4) create a disturbance capable of negatively affecting other park users by causing excessive noise by any means. Specific allowable noise levels for specific parks or parts of parks may be established by written order of the director.
(n) Public Nudity. It is an offense for any person to disrobe or appear nude in public. Females are considered to be disrobed when their breasts below the top of the areola are exposed except when nursing a baby.
(o) Soliciting. It is an offense for any person to solicit funds or donation of any item, or offer to sell any goods, wares, merchandise, liquid, or edibles, or render any service for hire, or distribute written material, in a state park, except by authority of a concession agreement approved by the director.
(p) Water Recreation. It is an offense for any person to:
(1) engage in water skiing, surf boarding while being towed, towing a person or a similar device, or operate a motorized ski device on lakes of less than 650 surface acres located in a state park;
(2) enter water or swim in an area closed for that activity;
(3) swim at night unless otherwise posted;
(4) introduce, carry into, or possess, use, break, dispose of, throw, or abandon any glass container in the water of a swimming area, swimming pool, or in the beach area adjacent to the water of a swimming area;
(5) moor, dock, or berth a boat or any other object between the hours of 10 p.m. and 6 a.m., except in mooring areas designated by the director; or
(6) moor, dock, or berth a commercial vessel at any part of a state park except by permit from the director.
(q) Water, Wastewater, Sewage, and Garbage. It is an offense for any person to:
(1) deposit waste water, sewage, or effluent from sinks, toilets, or other plumbing fixtures directly on the ground or into the water;
(2) use any water fountain, drinking fountain, pool, sprinkler, reservoir, lake or any other water body contained in the park for bathing, laundering, and washing dishes, pets, or vehicles;
(3) deposit fish parts at any location except park fish cleaning facilities;
(4) discard, deposit, or dump garbage in a state park, except for:
(A) garbage generated inside the park during the course of park visitation; or
(B) an amount of garbage consistent with what ordinarily would accumulate in a vehicle in the course of a day's travel;
(5) dispose of garbage except in a receptacle provided for that use or as may otherwise be specifically authorized by department personnel; or
(6) use water provided by the state park for purposes other than drinking, washing or culinary uses.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on February 9, 2009.
TRD-200900482
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Earliest possible date of adoption: March 22, 2009
For further information, please call: (512) 389-4775
(Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Parks and Wildlife Department or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeal is proposed under the authority of Parks and Wildlife Code, §13.001, which requires the commission to establish a classification system for state parks; natural areas, or historical sites and to adopt rules governing the acquisition and development of recreational areas, natural areas, or historical sites; §13.011, which authorizes the commission to adopt reasonable rules for accepting or purchasing sites, for determining the suitability of sites, and for establishing the priority of accepting and marking the sites; §13.101 and §13.102, which authorizes the commission to promulgate regulations governing the health, safety, and protection of persons and property in state parks, historic sites, scientific areas, or forts under the control of the department, including public water within state parks, historic sites, scientific areas, and forts; and §13.0145, which authorizes the commission to enforce speed limits.
The proposed repeal affects Parks and Wildlife Code, Chapter 13.
§59.134.Rules of Conduct in Parks.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on February 9, 2009.
TRD-200900480
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Earliest possible date of adoption: March 22, 2009
For further information, please call: (512) 389-4775
SUBCHAPTER A. STATEWIDE HUNTING AND FISHING PROCLAMATION
The Texas Parks and Wildlife Department (the department or TPWD) proposes the repeal of §65.42, amendments to §§65.3, 65.10, 65.56, 65.64, 65.72, and 65.73, and new §65.42, concerning the Statewide Hunting and Fishing Proclamation.
The proposed repeal of §65.42 is necessary because the department is making comprehensive changes to regulations as part of a new approach to deer management.
The proposed amendment to §65.3, concerning Definitions, would add definitions for "paddle craft" and "paddle-craft fishing guide" because the proposed amendment to §65.73, concerning Fishing Guide License-Required Documentation, would create a fishing guide license for persons using paddle craft, but not motorized boats.
The proposed amendment to §65.10, concerning Possession of Wildlife Resources, would modify the current tagging requirements for deer and antelope. Under Parks and Wildlife Code, §42.018, a deer or antelope carcass must remain tagged until it reaches a final destination and is finally processed, unless modified by commission rule. Parks and Wildlife Code, §42.001 defines "carcass" as "the body of a dead deer or antelope . . . that has not been processed more than by quartering;" "final destination" as a person's permanent residence or a cold storage or processing facility; "final processing" as the processing of a carcass more than by quartering; and "quartering" as "the processing of an animal into not more than two hindquarters each having the leg bone attached to the hock and two forequarters each having the leg portion to the knee attached to the shoulder blade. The term also includes removal of two back straps and trimmings from the neck and rib cage."
The department has become aware that the practice of freezing an entire bone-in quarter for later consumption is technically problematic, because under the current law, tagging requirements remain in effect until the carcass has been processed "beyond quartering," which means, among other things, the removal of bones. Therefore, a quarter with the bone still in it must remain tagged. In order to remedy this anomaly, the proposed amendment would modify the statutory tagging requirements to provide that the tagging requirements for a carcass cease when the carcass is at a final destination, has been skinned, and has had at least one hindquarter or forequarter completely removed. Under Parks and Wildlife Code, §42.0177, the commission may modify or eliminate the tagging requirements established in Parks and Wildlife Code, §42.018.
Proposed new §65.42, concerning Deer, would establish the open seasons, bag limits, and special provisions for the take of white-tailed and mule deer in Texas. The proposed new section reflects a new approach to deer management being introduced by the department. Until recently, the department collected biological information regarding white-tailed deer populations and harvest by regulatory compartment, typically a group of counties in geographical proximity to each other. The regulatory compartment concept was used for many years and was adequate to analyze deer population dynamics within the boundaries of counties; however, that approach contributed to highly variable population estimates, which affected the department's ability to detect changes within a deer population. As a result of the department's comprehensive science review in 2005, Wildlife Division staff developed an entirely new approach to data collection for white-tailed deer, defining specific areas (known as Resource Management Units (RMU)) that share similar soil types, vegetative communities, wildlife ecology, and land-use practices. The intent is to develop deer seasons, bag limits, and special provisions that allow the department to monitor the efficacy of management strategies on deer populations within each RMU. The proposed rules will still use the familiar system of county boundaries and major highways to delineate various regulatory regimes. The proposed new rule is intended to provide additional hunting opportunity where possible within the tenets of sound biological management, address resource concerns such as increasing deer densities, habitat degradation, and poor age structure among bucks, and simplify existing regulations.
The proposed new section retains certain provisions that are identical to those contained in the current rule. With respect to white-tailed deer, those provisions are the existing lengths of the general open season and the archery-only open season, provisions governing the use of Managed Lands Deer Permits and Landowner Assisted Management Permits, provisions stating exceptions to the county and aggregate bag limits when certain tags or permits are used, provisions governing the definition of lawful bucks in counties where the "antler restriction" rule is implemented, and provisions governing the take of deer during Special Late Antlerless and Spike-buck Deer seasons. The counties listed in proposed new subsection (b)(1) retain the same provisions contained in current subsection (b)(1), with the exception of Atascosa County, which is addressed elsewhere in this preamble. The proposed provisions governing the take of mule deer are identical to those contained in current §65.42(c).
Changes to buck bag limits
Under current regulations there are 85 one-buck counties in Texas. Historically, one-buck counties were areas where hunting pressure had been so intense that bucks could not attain maturity or where deer densities were so low that buck age structure could be affected by very little hunting pressure. The department has determined that the one-buck bag limit approach did not significantly reduce hunting pressure on bucks in counties where tract sizes are relatively small and hunter density is relatively high, primarily in the eastern half of the state (e.g., Pineywoods, Post Oak Savannah, and Cross Timbers and Prairies ecoregions). Therefore, an alternative buck-harvest strategy was necessary in those areas in order to improve buck age structure. The recent implementation of the "antler-restriction rule" in many of those counties has produced age structures that are desirable.
Based on data obtained from 61 counties where the "antler-restriction rule" has been implemented, the department is satisfied that the "antler-restriction rule" has been quite effective at improving buck age structure while maintaining ample hunting opportunity. Therefore, the proposed new rule would implement the "antler-restriction rule" in 52 additional counties where yearling and 2.5-year-old bucks comprise from 55 - 68% of the total buck harvest. For the first time, the "antler-restriction rule" will be implemented in counties where, under current rule, more than one buck is allowed to be taken. All counties in which this harvest strategy is implemented will have a two-buck bag limit. The affected counties are Anderson, Angelina, Archer, Atascosa, Brazos, Brown, Chambers, Clay, Cooke, Denton, Ellis, Falls, Freestone, Grayson, Grimes, Hardin, Harris, Henderson, Hill, Hood, Hunt, Jack, Jasper, Jefferson, Johnson, Kaufman, Liberty, Limestone, Madison, McLennan, Milam, Mills, Montague, Montgomery, Navarro, Newton, Orange, Palo Pinto, Parker, Polk, Robertson, San Jacinto, Smith, Stephens, Tarrant, Trinity, Tyler, Van Zandt, Walker, Wichita, Wise, and Young.
In the eastern Rolling Plains, relatively large tract sizes and light hunter density have allowed the deer population to expand as habitat has become more favorable to white-tailed deer. Buck age structure in this area is comparable to that in areas where the antler-restriction rule has been implemented, and staff have determined that buck populations in the eastern Rolling Plains can withstand an additional buck in the bag with no restrictions. Therefore, the proposed new rule would implement a buck bag limit of two bucks in Baylor, Callahan, Haskell, Jones, Knox, Shackelford, Taylor, Throckmorton, and Wilbarger counties.
Changes to antlerless bag limits
There are three different antlerless-deer bag limits in Texas: a two-antlerless bag in all counties north and east of the Edwards Plateau; a five-antlerless bag in south Texas and the majority of the Edwards Plateau; and a four-antlerless bag in the Trans Pecos ecoregion. The current approach contains a mix of harvest strategies in each of several RMUs, making it very difficult for the department to evaluate a deer population's response to any particular harvest strategy. Furthermore, there are RMUs where the two-antlerless bag is insufficient to adequately manage increasing deer populations and deteriorating habitat. Therefore, the proposed new rule would implement more liberal antlerless-deer bag limits in the eastern Trans Pecos and Rolling Plains, and in portions of the Cross Timbers and Prairies ecoregion.
White-tailed deer densities throughout the eastern Trans Pecos are very similar to densities in Edwards Plateau RMUs to the east. The proposed new rule would increase the bag limit from four antlerless deer to five antlerless deer in Pecos, Terrell, and Upton counties in an effort to increase hunting opportunity and address resource concerns.
White-tailed deer densities have remained relatively stable in much of the Cross Timbers. The department believes that increasing the antlerless-deer bag limit in this region will increase total deer harvest, which is imperative for habitat recovery. Therefore, the proposed new rule would increase the antlerless deer bag limit from two antlerless deer to five antlerless deer in Archer, Baylor, Bell (west of IH35), Bosque, Callahan, Clay, Coryell, Hamilton, Haskell, Hill, Jack, Jones, Knox, Lampasas, McLennan, Palo Pinto, Shackelford, Somervell, Stephens, Taylor, Throckmorton, Wichita, Wilbarger, Williamson (west of IH35), and Young counties.
Although white-tailed deer densities in the western Rolling Plains and eastern Panhandle are highly variable, there are areas containing suitable habitat that have become saturated with deer, and whitetails are expanding into marginal to poor habitat. Browsing pressure in these areas is severe, where little woody vegetation exists within five feet of the ground. Therefore, the proposed new rule would increase the antlerless bag limit from two antlerless deer to five antlerless deer in Armstrong, Borden, Briscoe, Carson, Childress, Collingsworth, Cottle, Crosby, Dickens, Donley, Fisher, Floyd, Foard, Garza, Gray, Hall, Hardeman, Hemphill, Hutchinson, Kent, King, Lipscomb, Motley, Ochiltree, Roberts, Scurry, Stonewall, and Wheeler counties.
Antlerless deer harvest in many counties has been controlled by what are popularly known as "doe days," the designation of specific time periods when antlerless deer may be harvested without a permit. The current rules allow for four specific regimes: four "doe days," 16 "doe days," and "doe days" from the beginning of the season until the Sunday following Thanksgiving. Additionally, there are counties where the harvest of antlerless deer is strictly by permit only. As is the case in other parts of the state, the introduction of the RMU concept means that current harvest regimes are not consistent across RMUs. Therefore, the proposed new rule would eliminate "doe days" (i.e., allow antlerless harvest without permits for the entirety of the general season) in Dallam, Hartley, Moore, Oldham, Potter, and Sherman counties (which currently allow antlerless harvest by permit only), Denton and Tarrant counties (which currently have 16 "doe days") and in Cooke, Hardeman, Hill, Johnson, Wichita, and Wilbarger counties (which currently have 23-plus "doe days"). Staff believes that the proposed new rule would offer additional hunting opportunity in areas where increased antlerless harvest is desirable, as well as provide a consistent time period during which antlerless deer may be harvested. Similarly, the proposed new rule would increase the number of "doe days" in Bowie and Rusk counties (from 4 to 16), in Cherokee and Houston counties (from 4 to 23-plus), and in Anderson, Henderson, Hunt, Leon, Rains, Smith, and Van Zandt counties (from no "doe days" to four).
The proposed new rule would allow antlerless harvest only by permit in Grayson County. Grayson County currently has a three-deer bag limit, not more than one of which may be a buck, not more than two of which may be antlerless, and four "doe days". As previously mentioned, the proposed new rule would implement the antler-restriction rule in Grayson County, which would increase the buck bag limit to two.
The proposed new rule also would implement an open season in Dawson, Deaf Smith, and Martin counties, which currently have a closed season. The white-tailed deer population and distribution has increased in portions of these counties to the extent that a season is justifiable. The proposed new rule would create a season opening the first Saturday in November and running through the first Saturday in January, full-season either-sex, with a three-deer bag limit (no more than one buck and no more than two antlerless). Opening the season and allowing full season either-sex harvest will increase hunting opportunity, allow landowners and managers more flexibility in their white-tailed deer management decisions, and will not adversely affect the resource.
Special Late Seasons
In an attempt to meet the general objectives for deer management mentioned earlier, and to standardize the length of all late seasons, the proposed new rule would expand the current late antlerless and spike season into 67 additional counties and expand the muzzleloader season into 37 additional counties. In Pecos, Terrell, and Upton counties, the current muzzleloader season would be replaced by a general late season for antlerless and spike buck deer.
The proposed new rule would create a 14-day late antlerless and spike deer season in Archer, Armstrong, Baylor, Bell (West of IH35), Borden, Bosque, Briscoe, Callahan, Carson, Childress, Clay, Collingsworth, Comanche, Cooke, Coryell, Cottle, Crosby, Denton, Dickens, Donley, Eastland, Erath, Fisher, Floyd, Foard, Garza, Gray, Hall, Hamilton, Hardeman, Haskell, Hemphill, Hill, Hood, Hutchinson, Jack, Johnson, Jones, Kent, King, Knox, Lampasas, Lipscomb, McLennan, Montague, Motley, Ochiltree, Palo Pinto, Parker, Pecos, Roberts, Scurry, Shackelford, Somervell, Stephens, Stonewall, Tarrant, Taylor, Terrell, Throckmorton, Upton, Wheeler, Wichita, Wilbarger, Williamson (West of IH35), Wise, and Young counties. In Pecos, Terrell, and Upton counties, the late antlerless and spike season would replace the current muzzleloader-only open season.
The current muzzleloader-only open season is a nine-day late season during which antlerless and spike deer may be taken only by muzzleloading firearms. The proposed new rule would expand the muzzleloader season from nine to 14 days in all muzzleloader counties, make it run concurrently with all other late seasons, allow for the bag composition to be identical to that of the general season, and would expand it to include Austin, Bastrop, Bowie, Brazoria, Caldwell, Camp, Cass, Cherokee, Colorado, De Witt, Fayette, Fort Bend, Goliad, Gonzales, Gregg, Guadalupe, Harrison, Houston, Jackson, Karnes, Lavaca, Lee, Marion, Matagorda, Morris, Nacogdoches, Panola, Rusk, Sabine, San Augustine, Shelby, Upshur, Victoria, Waller, Washington, Wharton, and Wilson counties.
The proposed new rule also would expand the late youth-only season from two days to 14 days and make it run concurrently with the special late antlerless and spike deer and special muzzleloader seasons. The proposed expansion is intended to create additional opportunity for parents and children to hunt together during January.
Special Provisions
Under current rule, antlerless deer may not be harvested on United States Forest Service (USFS) lands without an antlerless permit, regardless of the season and bag limit established for county. This is also true of U.S. Army Corps of Engineers lands and lands owned by river authorities. USFS personnel have requested that the permit requirement be removed in specific areas, allowing hunters to be governed by the county regulations, including the utilization of "doe days." Therefore, the proposed new rule would create special provisions for USFS properties in Montague and Wise counties, where the deer populations should not be adversely impacted with a regulation allowing an unknown number of hunters the opportunity to harvest antlerless deer without a permit from Thanksgiving Day through the Sunday immediately following Thanksgiving. USFS personnel also have requested that the county regulations for Fannin County apply to USFS lands in Fannin County. Therefore, the proposed new rule also would allow for the harvest of antlerless deer without a permit on USFS lands in Fannin County during the four "doe days" established in that county.
Proposed new §65.42 also would implement a 9-day, buck-only general season for mule deer in Parmer County. Under current rule, there is no open season for mule deer in Parmer County, where population surveys have revealed low numbers of mule deer within pockets of suitable habitat. The literature suggests that the implementation of a buck-only season will not have any measurable impact on herd productivity or expansion; however, a measurable change in the age structure of bucks is possible as a result of harvest pressure on a previously unhunted population. Implementation of the proposal is expected to result in increased hunter opportunity with no measurable effect on reproduction or distribution of mule deer populations.
The proposed amendment to §65.56, concerning Lesser Prairie Chicken: Open Season, Bag, and Possession Limits, would close the season for lesser prairie chicken until the population recovers to a more sustainable level. The lesser prairie chicken population is in decline across its historic range due to habitat loss and habitat degradation. According to some estimates, the total population declined by over 75% between 1963 and 1980. The proposed amendment is necessary because although lesser prairie chicken hunting mortality in Texas is almost nonexistent, closure of the season is a reasonable component of any long-term recovery strategy.
The proposed amendment to §65.64, concerning Turkey, would correct an inaccurate cross-reference in subsection (b)(4).
The proposed amendment to §65.72, concerning Fish, consists of several components.
Harvest regulations for blue catfish on Lake Lewisville (Denton County), Lake Richland Chambers (Navarro and Freestone Counties), and Lake Waco (McLennan County) currently consist of a 12-inch minimum length limit and 25-fish daily bag limit. The proposed amendment to §65.72 would retain the 25-fish daily bag limit but implement a 30- to 45-inch slot length limit and allow the harvest of only one blue catfish over 45 inches. No harvest of blue catfish between 30 and 45 inches would be allowed. The proposed amendment is necessary because harvest data indicate an extremely high harvest of older fish, which could have negative impacts on population abundance by affecting spawning and reproduction.
Harvest regulations for largemouth bass on Lake Ray Roberts (Cooke, Denton, and Grayson Counties) currently consist of a 14- to 24-inch slot length limit and a five-fish daily bag (only one bass 24 inches or greater may be retained each day). The proposed amendment would implement a 14-inch minimum length limit and retain the five-fish daily bag limit (the standard statewide regulation). The current regulation was implemented in 1998 in an attempt to explore the feasibility of creating a trophy bass population; however, population structure trend data indicate that the population has not responded to the slot limit, so the department has determined that the rules should revert to the statewide standard.
Alligator Gar
Under current regulations, there are no restrictions on the harvest of alligator gar in Texas. Alligator gar populations are believed to be declining throughout much of their historical range in North America, which includes the Mississippi River system as well as the coastal rivers of the Gulf of Mexico from Florida to northern Mexico. Although the specific severity of these declines is unknown, habitat alteration and over-exploitation are thought to be partially responsible. Alligator gar have been extirpated in Illinois, Indiana, and Ohio and designated as a "Species of Concern" in Oklahoma and Kentucky. In addition, the Endangered Fishes Committee of the American Fisheries Society has listed the alligator gar as "Vulnerable." Observed declines in other states, vulnerability to overfishing, and increased interest in the harvest of trophy gar indicate that a conservative management approach is warranted until populations and potential threats can be fully assessed. The proposed amendment would impose a daily bag limit of one alligator gar per person. The change is intended to protect adult fish while allowing limited harvest, which would ensure population stability while allowing utilization of the resource.
The proposed amendment to §65.72 would also affect regulations for alligator gar and blue catfish on Lake Texoma. Recent meetings between fisheries and law enforcement staff from TPWD and Oklahoma Department of Wildlife Conservation (ODWC) resulted in two proposed changes to fishing regulations on Lake Texoma. The proposals are part of an ongoing effort to standardize regulations on a reservoir where management is shared by both states. For reasons discussed earlier, the department is concerned about the status of alligator gar. This concern is shared by biologists with the ODWC. There are currently no restrictions on the take of alligator gar on the Texas portion of Lake Texoma. The proposed amendment would institute a daily bag limit of one alligator gar and prohibit the take of alligator gar in a portion of the lake that under certain environmental conditions could function as spawning grounds for large quantities of alligator gar. Under these conditions, alligator gar are extremely vulnerable to harvest, and because the conditions for spawning do not exist on a regular or cyclical basis, alligator gar breed infrequently.
Blue Catfish
Current regulations for blue catfish allow a daily bag limit of 15 fish. Harvest data indicate an extremely high harvest of older fish, which could have negative impacts on population abundance. Therefore, the proposed amendment would retain the 15-fish daily bag limit but prohibit the retention of more than one blue catfish 30 inches or greater per day, which is expected to protect older and larger fish for breeding purposes.
The proposed amendment would also eliminate a time-dependent provision in §65.72(c)(5)(F) that is no longer necessary and comport that subparagraph accordingly. The commission last year prohibited the take of catfish by archery equipment, to be effective September 1, 2008. The proposed amendment would eliminate the reference to the date and remove references to the take of catfish by archery equipment.
Flounder
The proposed amendment to §65.72 would also affect provisions governing the recreational and commercial take of flounder. On the basis of pronounced downward trends in fishery independent data (bag seines, bay trawls, gill nets) which showed declines in catch-per-unit-effort (abundance), and declining commercial and recreational landings, the department has determined that measures must be implemented to protect and replenish spawning stock biomass in the fishery. Current harvest regulations for flounder consist of a 14-inch minimum size limit and a 10-fish daily bag and possession limit for recreational take and a 60-fish daily bag and possession limit for commercial take. The proposed amendment to §65.72 would implement a five-fish daily bag and possession limit for recreational take and a 30-fish commercial daily bag and possession limit for commercial take. Additionally, the proposed amendment would close Texas waters to the take of flounder by all anglers for the entire month of November.
In developing this proposal to address the downward trends, the department considered several alternatives, in addition to the current proposal. The department considered: (1) a five-fish recreational/30-fish commercial bag limit with no closure; (2) a November closure with no change to current bag limits; (3) a five-fish recreational/45-fish commercial bag limit with a November closure; (4) a five-fish recreational/40-fish commercial bag limit with a November closure; (5) a five-fish recreational/30-fish commercial bag limit with an October to December closure; and (6) an October to December closure with no change to bag limits. The department believes that a 30-fish commercial limit, a 5-fish recreational limit and a November closure would best balance competing interests in achieving the objective of the proposed amendment while being less burdensome to anglers. However, the department is also interested in receiving comments regarding the other alternatives considered in formulating a recommendation for the final rule.
Federal-State Managed Species
Several fish species are managed jointly by the department, the Gulf of Mexico Fishery Management Council (GMFMC) and the National Marine Fisheries Service (NMFS). As a result of the finalization by NMFS of the Highly Migratory Species Amendment 2, and Reef Fish Amendments 30A and 30B, the department is now seeking to achieve greater consistency with federal rules affecting greater amberjack, gag, gray triggerfish, and sharks. NMFS and GMFMC have determined that greater amberjack, gray triggerfish, gag grouper, and some species of sharks are in an overfished condition or are undergoing overfishing. The following proposed amendments to current bag and size limits for those species are intended to provide consistency with federal regulations, which is necessary to facilitate multi-jurisdictional law enforcement, to reduce confusion among anglers, and to achieve the population rebuilding goals set by NMFS and GMFMC.
Greater Amberjack
Current regulations for greater amberjack consist of a 32-inch minimum size limit and a 1-fish daily bag limit. The proposed amendment to §65.72 would implement a 34-inch minimum size limit. According to stock assessments, greater amberjack were found to be undergoing overfishing in 2006. Within the context of the amendment, a greater amberjack minimum size limit of 34 inches total length is consistent with federal guidelines and follows a previous rule made by the National Marine Fisheries Service on August 4, 2008. The changes for greater amberjack are in accordance with the suggested changes as published in Amendment 30A to the Fishery Management Plan (FMP) for the Reef Fish Resources of the Gulf of Mexico as published in the Federal Register on July 3, 2008 (73 Fed. Reg. 38139 - 38143).
Gray Triggerfish
Harvest of gray triggerfish in Texas waters is currently unregulated. The proposed amendment to §65.72 would implement a 20-fish daily bag limit, a 40-fish possession limit, and a 14-inch total length minimum size limit. According to stock assessments, gray triggerfish were found to be undergoing overfishing in 2006. Within the context of the amendment, a gray triggerfish minimum size limit of 14 inches total length and a daily bag limit of 20 fish are consistent with federal guidelines and follow a previous rule promulgated by the National Marine Fisheries Service, which became effective August 4, 2008.
Gag Grouper
Harvest of gag grouper in Texas waters is currently unregulated. The proposed amendment to §65.72 would implement a 22-inch minimum size limit and a two-fish daily bag limit. The changes for gag grouper are in accordance with the suggested changes as published in Amendment 30B to the Fishery Management Plan (FMP) for the Reef Fish Resources of the Gulf of Mexico as published in the Federal Register on October 28, 2008 (73 Fed. Reg. 63,932) and a similar interim rule as published in the Federal Register on December 2, 2008 (73 Fed. Reg. 73,192 that became effective on January 1, 2009). According to stock assessments, gag grouper were found to be undergoing overfishing in 2004. Within the context of the amendment, a gag grouper bag limit of two fish per person per day within an aggregate grouper quota is consistent with federal guidelines. To establish consistency between federal and state waters, the proposal would establish a two-fish bag limit. The proposal would also establish a 22-inch minimum size limit, which also tracks a previous federal rule change made by National Marine Fisheries Service in 2000.
Sharks
Current regulations for the take of sharks consist of a 24-inch minimum size limit (total length) with a one-fish daily bag limit. The proposed amendment to §65.72 would prohibit the catch or possession of the following sharks: Atlantic angel, basking, bigeye sand tiger, bigeye sixgill, bigeye thresher, bignose, Caribbean reef, Caribbean sharpnose, dusky, Galapagos, longfin mako, narrowtooth, night, sandbar, sand tiger, sevengill, silky, sixgill, smalltail, whale, and white. These sharks have been determined to be in an overfished condition or are undergoing overfishing. The proposed amendment retains the 24-inch minimum size limit for Atlantic sharpnose, blacktip and bonnethead sharks while increasing the minimum size limit for all other sharks, except those listed as prohibited. For the other species which are not prohibited, the minimum size limit would be increased from 24 inches to 64 inches (total length). The proposed length limits are consistent with the 54-inch fork length established by Highly Migratory Species, Amendment 2, promulgated by NMFS.
Paddle-Craft License
The proposed amendment to §65.73, concerning Fishing Guide License-Required Documentation, would establish a distinction in requirements between fishing guides operating a motorized vessel and fishing guides operating from a non-motorized boat (i.e., "paddle craft"). It also would establish criteria under which paddle-craft fishing guides must qualify in order to obtain an "all-water paddle-craft fishing guide" license. Under current rule, all-water fishing guide licensing requirements are unsuited for prospective guides who fish exclusively from paddle craft. Currently, anyone wishing to purchase an all-water fishing guide license must provide proof that he or she possess a United States Coast Guard (USCG) Operator of an Uninspected Passenger Vessel license (OUPV), often referred to as a 6-pack license. To obtain an OUPV, the applicant is required to produce proof that he or she has 360 days of "sea time" in a power vessel. For operators of paddle craft, many of whom do not have access to a power boat, this can present a barrier to obtaining a license. In addition, unique safety issues associated with the operation of paddle craft are not currently addressed by USCG training and licensure standards. Paddlers are more susceptible to capsizing, exposure to the elements, and tides and currents than are power boaters. They are also less visible on the water than larger craft and, therefore, more susceptible to collisions. Creating separate licenses with different sets of requirements for operators of power craft and operators of paddle craft would create the opportunity for operators of paddle craft to obtain a guide license and would address critical safety issues. The proposed new paddle-craft fishing guide license would not allow someone to operate as a guide on any motorized craft. Additionally, it should be noted that a guide who has the all-water guide license under the current requirements will still be allowed to operate as a guide in either a motorized or a non-motorized craft without the necessity of obtaining a paddle-craft license.
Mr. Robert Macdonald, Regulations Coordinator, has determined that for each of the first five years that the rules as proposed are in effect, there will be no fiscal implications to state or local governments as a result of enforcing or administering the rules.
Mr. Macdonald also has determined that for each of the first five years the rules as proposed are in effect, the public benefit anticipated as a result of enforcing or administering the rules as proposed will be the dispensation of the agency's statutory duty to protect and conserve the wildlife resources of this state, the duty to equitably distribute opportunity for the enjoyment of those resources among the citizens, and the execution of the commission's policy to maximize recreational opportunity within the precepts of sound biological management practices.
There will be no adverse economic costs to persons required to comply with the rules as proposed, except as specifically discussed elsewhere in this preamble.
Under the provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses and micro-businesses. As required by Government Code, §2006.002(g), the Office of the Attorney General has prepared guidelines to assist state agencies in determining a proposed rule's potential adverse economic impact on small and micro-businesses. Those guidelines state that an agency need only consider a proposed rule's "direct adverse economic impacts" to small businesses and micro-businesses to determine if any further analysis is required. For that purpose, the department considers "direct economic impact" to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services.
The department has determined that except for the provisions affecting the commercial harvest of fish and paddle craft used by fishing guides, the proposed rules will not directly affect small businesses and micro-businesses. Except for the commercial fishing and the paddle craft regulations, the proposed rules regulate various aspects of recreational license privileges that allow individual persons to pursue and harvest fish and wildlife resources in this state. With exceptions as noted, the proposed amendments and new section would not directly regulate any business and would not impose recordkeeping or reporting requirements; impose taxes or fees; affect sales, profits, or market competition; or require the purchase or modification of equipment or services by small businesses or micro-businesses. Therefore, the economic impact statement and the regulatory flexibility analysis described in Government Code, Chapter 2006, are required only for the provisions affecting the commercial harvest of certain species of fish and the establishment of a paddle-craft guide license.
Alligator Gar
The department regulates commercial harvest of nongame fish by two mechanisms: an appropriate commercial fishing license (the general commercial fisherman's license or the commercial finfish fisherman's license) and the permit to sell nongame fish taken from public fresh water, if harvest is to occur in fresh water. Under Parks and Wildlife Code, Chapter 47, no person is allowed to remove aquatic products from the water of the state for pay, sale, barter, or exchange or any other commercial purpose unless that person possesses an appropriate commercial fishing license. Additionally, under 31 TAC §57.379, no person may sell or offer for sale a nongame fish taken from public fresh water unless that person possesses a permit to do so. Thus, all persons who engage in the commercial harvest of gar must obtain the appropriate commercial fishing license, but those who do so in fresh water are also required to obtain the permit to sell nongame fish taken from public water. The reporting requirements for the permit to take nongame fish from fresh water and the commercial fishing licenses are different. Harvest and sales reporting for the permit to take nongame fish from fresh water is done monthly by the permittee; harvest and sales reports for the commercial fishing licenses are submitted by the wholesale fish dealers who have purchased gar from the licensees. Due to this difference, there is not a single source of data to reflect gar landings; therefore, for the purposes of this analysis the department has treated all reported landings as additive. Although this means counting some data twice, it is the only way for the analysis to capture all landings and ensure that impacts to small and micro-businesses are not underestimated.
Department records indicate that a total of 29 persons engaged in the commercial harvest of alligator gar in 2007 and a total of 20 engaged in the commercial harvest of alligator gar in 2008. The department has determined that all persons engaged in the commercial harvest of alligator gar in Texas qualify as small or micro-businesses (29 businesses in 2007 and 20 in 2008). The department has also determined that if the rule as proposed is adopted, the adverse economic impacts for small and micro-businesses will be in the form of either lost sales or the cost of additional effort in the fishery to compensate for the fact that only one alligator gar per day may be taken.
Data submitted to the department in 2007 by the 29 commercial licensees reported sales of alligator gar from $0 to $44,303, although most reported sales of less than $5,000. Similarly, data submitted to the department in 2008 by the 20 commercial licensees indicate sales from alligator gar of $0 to $85,950, although again most reported sales of less than $5,000.
The average annual value of commercial alligator gar sales reported by the 29 commercial licensees in 2007 and the 20 licensees in 2008 is $6,999.92. Therefore, the probable adverse economic impacts to small and micro-businesses as a result of the proposed rules would be an average loss in sales of $6,999.92 per business per year. The average value of the two highest sales figures reported in 2007 and 2008 was $65,126.57. Therefore, the single largest loss in sales as a result of the proposed rule would likely be $65,126.57, although a potential loss of up to $85,950 is possible. The analysis assumes a cessation of fishing activity. The adverse economic impact to permittees who continue to fish under the bag limit of one alligator gar per day would be less.
The department considered several alternatives to the proposed rule, including a minimum length limit, a special tag, and the closure of commercial harvest. The minimum length limit alternative was rejected because the department was concerned that recreational anglers, many of whom use archery equipment (which is lethal), would have difficulty distinguishing the length of a fish and take undersize fish by accident. The special tag alternative was rejected because this option represented the most conservative reduction in recreational harvest. The current proposal of one fish per day was determined to be an adequate initial step in managing alligator gar populations. Although populations in Texas are considered to be healthy, they are vulnerable to over-harvest and habitat loss. From existing data, the department knows that alligator gar live more than 50 years, spawn on an irregular basis, do not mature until they are 10 - 15 years old, and have low natural mortality. The closure of commercial harvest was slightly modified to allow the harvest of one fish per day, which will essentially function as a complete closure. The department finds that there is no reasonable alternative that would be as or more effective in achieving the objective of the proposed amendment while being less burdensome to small and micro-businesses.
Shark
The rules as proposed for sharks will impact the commercial fishery for sharks along the Texas coast. The proposal would prohibit the catch or possession of some species of shark, retain the 24-inch minimum size limit on some species of shark, and increase the minimum size limit on some species of shark from 24 to 64 inches (total length). The proposal would retain the one-fish daily bag and possession limit for species of shark for which catch and possession would be allowed under the proposal. Based on permit data from 2007-08, the department has determined that all persons who take shark for commercial purposes in Texas qualify as micro-businesses. Within Texas state waters under current rules, the daily bag limit for both commercial and recreational take of shark is one shark per day. Thus, while there may be an occasional commercial take of shark in Texas waters, the current bag limit of one fish per person per day has kept the total commercial value of sharks at a minimal level.
Although the department does not believe that the rule as proposed for sharks will have a significant impact on small or micro-businesses as a result of catching and landing sharks from Texas state waters, for purposes of analyzing the impact of the proposed rule on small and micro-businesses, the department is assuming the scenario that would have the greatest impact. There were 13 individuals who reported landing sharks in 2007, and three individuals in 2008. Therefore, the proposal regarding sharks would impact between three and 13 small or micro-businesses.
Based on trip-ticket reporting, the total poundage of shark landings in 2007 was 4,601 lbs. In 2008 it was 482 lbs. Landings in Texas include landings from Texas state waters as well as federal waters. While it is unlikely the entire contents of the landings reported in 2007 and 2008 would be prohibited under the proposal, as noted above, for purposes of determining the impact to small and micro-businesses, the department is assuming the scenario that would result in the greatest impact. Therefore, the average value of the catch would be a measure of the potential impact to small and micro-businesses.
The dollar value of the catch was $4,212 in 2007 and $285 in 2008. The department assumes that most of the catch occurred in federal waters and then was landed in Texas. Assuming the entire catch would be prohibited under the proposal, the total loss in sales to all small and micro-businesses under the rule as proposed would be no greater than $4,212. There were 13 individuals who reported landing sharks in 2007, thus if 2007 data is used, the average loss per individual under the rule as proposed would be $324. In 2008 there were three people who reported landings, so if 2008 data is used, the average loss under the rule as proposed would be $95. Using the average impacts for 2007 and 2008, the department, therefore, estimates the rule as proposed would result in an average loss in sales of $209.50 per small or micro-business affected by the rule, again assuming all previously reported catch would be prohibited by the proposal.
The department considered several alternatives to the proposed rule, including leaving the current rules in place and closing Texas waters to the harvest of certain sharks. The alternative of leaving the current rules in place was rejected, primarily because it would not accomplish the goal of the rule, which is to be consistent with federal rules designed to reduce overfishing, but also because maintaining current rules would create confusion for recreational anglers with respect to differential bag limits in state and federal waters and because differential bag limits could cause difficulties in enforcement activities. The alternative of closing Texas waters was rejected because although it would undoubtedly result in stopping overfishing, it would impose an unnecessary hardship on recreational and commercial anglers. While the department shares concerns with respect to shark populations, the federal rules do not recognize the Texas beachfront fishery and the department does not believe that full consistency with federal rules on sharks is warranted at this time.
Greater Amberjack
Based on permit data from 2007-08, the department has determined that all persons who take greater amberjack for commercial purposes in Texas qualify as micro-businesses. The proposed amendment to §65.72 would retain the one-fish daily bag limit, but increase the minimum size limit from a 32-inch to a 34-inch minimum size limit. Because greater amberjack is currently managed under a one-fish bag limit per person per day, it is assumed that most, if not all, of the catch occurs outside of Texas state waters, and is therefore subject to federal restrictions rather than state rules. Although the increase in the minimum size limit, when combined with the federal regulations, is believed to help protect the fishery from over-harvest, the primary impact of the rule will be to assist in the enforcement of the federal limits. As a result, the department does not believe that the rule as proposed for greater amberjack will have an impact on small or micro-businesses.
Gag Grouper
Based on permit data from 2007 and 2008, the department has determined that all persons who take gag grouper for commercial purposes in Texas qualify as micro-businesses. Until now, there have been no regulations governing the take of gag grouper in Texas waters. The proposal would implement a 22-inch minimum size limit and a two-fish daily bag limit for gag grouper. Under federal rules, the commercial gag grouper fishery in federal waters is managed by a commercial quota and trip limits. When the quota is reached, the season is closed in federal waters.
The department believes that most grouper landed in Texas are actually harvested in federal waters, and are therefore subject to federal restrictions rather than state rules. As a result, the department does not believe that the rule as proposed will have a significant impact on small or micro-businesses catching and landing gag grouper fish from Texas state waters. However, in order to analyze the proposed rule's potential impact on small and micro-businesses, the department assumes the scenario that would have the greatest impact since the landings are not separated by whether they were caught in federal or state waters. The scenario with the greatest impact assumes all of the landings were taken from state waters. There were 12 persons in 2007 who reported landing gag grouper and in 2008, there were four persons who reported gag grouper landings. Therefore, the proposal regarding gag grouper would impact between four and 12 small or micro-businesses.
Gag grouper landings in Texas in 2007 consisted of a total of 1,116 lbs. of fish landed at a dollar value of $3,977. In 2008, the total was 1,528 lbs. landed at a dollar value of $1,526. While it is unlikely the entire contents of the landings reported in 2007 and 2008 would be prohibited under the proposal, as noted above, for purposes of determining the impact to small and micro-businesses, the department is assuming the scenario that would result in the greatest impact. Therefore, the average value of the catch would be a measure of the potential impact to small and micro-businesses.
There were 12 persons in 2007 who reported landing gag grouper; thus, using 2007 data, under the proposed rule the average loss per small or micro-business would be $331 per year. In 2008 there were four persons who reported landings; thus, using 2008 data, the average loss per small or micro-business would be $381. There were also unclassified (not identified by subspecies) grouper landings in 2007 of 279 lbs. and in 2008 of 1,936 lbs., with a corresponding dollar value of $796 and $3,998, respectively. Assuming the entire catch would be prohibited under the proposal and considering the aggregate of all classes of grouper landings as gag grouper, then the total loss in sales for all small and micro-businesses impacted under the rule as proposed would be no greater than $4,793 ($3,998 + $796) in 2007 and no greater than $5,528 ($1,526 + $3,998) in 2008. Using the 2007 and 2008 data, the average loss per small or micro-business under the proposal would be $399 in 2007 and $1,382 in 2008. The department, therefore, estimates that the average loss in sales for all impacted small or micro-businesses affected by the proposed rule would be $5,160 per year, with an average loss per small or micro-business of $891 per year assuming similar levels of effort and success.
The department considered several alternatives to the proposed rule, including leaving the current rules in place and closing Texas waters to the harvest of gag grouper. The alternative of leaving the current rules in place was rejected, primarily because it would not accomplish the goal of the rule, which is to be consistent with federal rules designed to reduce overfishing, but also because maintaining current rules would create confusion for recreational anglers with respect to differential bag limits in state and federal waters and because differential bag limits could cause difficulties in enforcement activities. The alternative of closing Texas waters was rejected because although it would undoubtedly result in stopping overfishing, it would impose a severe hardship on recreational and commercial anglers.
Gray Triggerfish
Based on permit data from 2007 and 2008, the department has determined that all persons who take gray triggerfish for commercial purposes in Texas qualify as micro-businesses. Until now, there have been no regulations governing the take of gray triggerfish in Texas waters. The proposed amendment regarding gray triggerfish would implement a 20-fish daily bag limit, a 40-fish possession limit, and a 14-inch total length minimum size limit.
The commercial gray triggerfish fishery is managed in federal waters by a commercial quota. When the quota is reached, the season is closed in federal waters. The department believes that most gray triggerfish landed in Texas are actually harvested in federal waters, and are therefore subject to federal restrictions rather than state rules. As a result, the department does not believe that the rule as proposed for gray triggerfish will have a significant impact on small or micro-businesses. However, in order to analyze the impact of the proposed rule on small and micro-businesses, the department is assuming the scenario that would have the greatest impact. There were 30 persons who reported landing gray triggerfish in 2007; and in 2008 there were 23 persons reporting landings. Therefore, the proposal regarding gray triggerfish would impact between 23 and 30 small or micro-businesses.
Gray triggerfish landings in Texas in 2007 consisted of 17,833 lbs. landed at a dollar value of $13,208. In 2008, there were 16,087 lbs. landed at a dollar value of $12,363. While it is unlikely the entire contents of the landings reported in 2007 and 2008 would be prohibited under the proposal, as noted above, for purposes of determining the impact to small and micro-businesses, the department is assuming the scenario that would result in the greatest impact. Therefore, the average value of the catch would be a measure of the potential impact to small and micro-businesses.
There were 30 persons who reported landing gray triggerfish in 2007; thus, based on 2007 data, the average loss in sales per small or micro-business under the rule as proposed would be $440 per year. In 2008 there were 23 persons reporting landings; thus, based on 2008 data, the average loss in sales per small or micro-business would be $537 per year. Assuming the entire catch would be prohibited under the proposal and considering and using the 2007 and 2008 data, the department therefore estimates that the highest average loss in sales of per small or micro-business affected by the proposed rule will be $488 per year, assuming similar levels of effort and success.
The department considered several alternatives to the proposed rule, including leaving the current rules in place and closing Texas waters to the harvest of gray triggerfish. The alternative of leaving the current rules in place was rejected, primarily because it would not accomplish the goal of the rule, which is to be consistent with federal rules designed to reduce overfishing, but also because maintaining current rules would create confusion for recreational anglers with respect to differential bag limits in state and federal waters and because differential bag limits could cause difficulties in enforcement activities. The alternative of closing Texas waters was rejected because although it would undoubtedly result in stopping overfishing, it would impose a severe hardship on recreational and commercial anglers.
Flounder
The proposed regulation changes for flounder will exert an adverse economic impact on small or micro-businesses engaged in commercial fisheries operations. There are two primary groups of small or micro-businesses in the flounder fishery that are directly affected by the proposed rules: those who directly target flounder for harvest and those who harvest flounder as bycatch (incidental to other harvest operations). Based on permit data, the department has determined that all persons who take flounder for commercial purposes in Texas qualify as micro-businesses.
The proposed rules affecting the commercial harvest of flounder would reduce the daily bag limit from 60 fish to 30 fish, and would close the fishery during the month of November. The department has analyzed the adverse economic impact on small and micro-businesses affected by the proposed rules by addressing the historical number of trips resulting in the landing of more than 30 flounder (the proposed rule reduces the commercial daily bag limit from 60 fish to 30 fish), and by analyzing reporting data from the month of November.
In 2007 and 2008, flounder landings were reported by 45 and 67 commercial finfish fishermen, respectively. Therefore, the proposed rule would impact between 45 and 67 small or micro-businesses.
In 2007 there were a total of 361 trips, resulting in the landing of 17,291 pounds of flounder and an average catch per trip of 47.89 pounds. In 2008 there were a total of 521 trips landing 41,770 pounds for an average catch per trip of 80.17 pounds.
Data from 2007 indicate that 121 of the 361 trips resulted in landings of more than 30 flounder. The portion of the landings that exceeded 30 flounder totaled 3,918 pounds and was landed by 35 licensees. Using the average reported price for the 2007 season of $2.67 per pound, the total loss in sales for all small or micro-businesses would be $10,461.06 under the proposed 30-fish bag limit. Therefore, using 2007 data, the average adverse economic impact to a small or micro-business of the 30-fish bag limit would be $298.88. The greatest adverse economic impact to a single licensee, using 2007 data, would be $1,412.43.
In November of 2007, 20 licenses reported 69 trips, resulting in the landing of 3,508 pounds of flounder. Using the average reported price for the month of November 2007 of $2.55 per pound, the total lost sales for small or micro-businesses in 2007 as a result of a November closure be $8,945.40. The average loss in sales for small or micro-businesses would be $447.27.
Data from 2008 indicate that 338 out of the 521 trips resulted in landings of more than 30 flounder. The portion of the landings that exceed 30 flounder totaled 17,762 pounds and was landed by 56 licensees. Using the average reported price for the 2008 season of $2.60 per pound, the total loss in sales for all small or micro-businesses would be have been $46,181.20 under the proposed 30-fish bag limit. Therefore, using 2008 data, the average adverse economic impact to a small or micro-business of the proposed 30-fish bag limit would be $824.66. The greatest adverse economic impact to a single licensee would be $4,238.
In November of 2008, 12 licensees reported 49 trips, resulting in the landing of 5,967 pounds flounder. Using the average reported price for the month of November 2008 of $1.61 per pound, the total lost sales for small or micro-businesses in 2008 as a result of a November closure would be $9,606.87. The average loss in sales for small or micro-businesses would be $800.57.
By combining the results of the analyses of the adverse economic impacts of the 30-fish bag limit and the November closure and assuming all impacts are completely additive, the average adverse economic impacts to small and micro-businesses, based on 2007 data, would be $347.10 per year per licensee. Using 2008 data, this figure would be $812.61 per year per licensee. Thus, the probable average economic impact of the proposed rule on small and micro-businesses that take flounder under a finfish fisherman's license, based on 2007 and 2008 data, would be a loss of $579.85 per licensee per year, assuming similar levels of effort and success.
There will also be adverse economic impacts for small or micro-businesses that land flounder as incidental catch (bycatch). Because licensees landing flounder as bycatch would be limited to five-fish per day bag limit as opposed to the current ten-fish per day bag limit, the probable adverse economic impacts on these small or micro-businesses would be less than impacts on businesses fishing for flounder under a finfish fisherman's license (i.e., less than $579.85).
The department considered several alternatives to the proposed rule, including: (1) a five-fish recreational/30-fish commercial bag limit with no closure; (2) a November closure with no change to current bag limits; (3) a five-fish recreational/45-fish commercial bag limit with a November closure; (4) a five-fish recreational/40-fish commercial bag limit with a November closure; (5) a five-fish recreational/30-fish commercial bag limit with an October to December closure; and (6) an October to December closure with no change to bag limits. The department's data indicates that alternatives 1 - 4 will not achieve the goal of the proposed rules, which is to increase spawning biomass in flounder stocks to the historical levels documented in the early 1980's (approximately a 100% increase). Although the department's data indicates that alternatives 5 and 6 would achieve the goals of the rules, they would also impose an additional hardship on both recreational and commercial users. The department believes that a 30-fish commercial limit, a 5-fish recreational limit and a November closure would best balance competing interests in achieving the objective of the proposed amendment while being less burdensome to small and micro-businesses.
Paddle Craft License
With respect to the proposed amendment to §65.73, the department believes that most if not all persons doing business as a paddle-craft fishing guide qualify as small or micro-businesses. The department estimates that ten or fewer small or micro-businesses would be affected by the proposed rules. However, the department has determined that the rule as proposed will likely result in positive economic impacts to small businesses and micro-businesses. Businesses that currently operate under the all-water fishing guide license will not be required to obtain the new paddle craft all-water fishing guide license and thus will not be impacted by the proposed rule. However, a person or business who currently has an all-water fishing guide license, but wishes to provide fishing guide services only by paddle craft will no longer be required to obtain a United States Coast Guard (USCG) Operator of an Uninspected Passenger Vessel (OUPV) license.
The USCG OUPV currently costs $1,110. The current fee for the resident all-water fishing guide license is $200. Therefore, the cost of obtaining the resident all-water fishing guide license totals $1,310.
To obtain a paddle craft all-water fishing guide license under the proposed rule, a Texas resident would be required to pay approximately $745, which consists of the $200 fee for licensure (proposed elsewhere in this issue), approximately $45 for CPR/First Aid certification, and approximately $500 for the required kayak/canoe certifications. However, the $1,100 USCG OUPV would not be required. Therefore, the cost savings for a resident providing paddle craft fishing guide services would be approximately $565 per year.
For nonresidents, the current fee for the all-water fishing guide license is $1,000. When combined with the cost of the USCG OUPV, the cost of obtaining the resident all-water fishing guide license totals $2,100. For nonresidents wishing to guide by paddle craft only, the probable direct economic cost of compliance would be approximately $1,545, which consists of the $1,000 fee for licensure (proposed elsewhere in this issue), approximately $45 for CPR/First Aid certification, and approximately $500 for the required kayak/canoe certifications. However, the $1,110 USCG OUPV would not be required. Therefore, the cost savings for a nonresident providing paddle craft fishing guide services would be approximately $555 per year. As a result, the rule as proposed will not have an adverse impact on small or micro-businesses doing business as fishing guides.
The department has determined that the proposed rules affecting commercial fishing will have very little impact upon local employment at the macro or micro level and hence an insignificant impact upon local economies in the Gulf Coast geographical area. The department has determined that the direct employment impact of the proposed rules in this area will to varying degrees affect a total of 92 licensees who fish commercially in the Gulf of Mexico for species affected by the proposed regulations. For individuals harvesting sharks, greater amberjack, gag grouper, and gray triggerfish, the employment impact should be negligible because those persons must already comply with the same restrictions when fishing in federal waters.
For individuals harvesting species other than gar, the employment impacts of the rules, if any, should be temporary. As noted earlier, the proposed rule affecting alligator gar does not prohibit the commercial take of alligator gar; however, to remain in the fishery will require greater effort at a higher cost per fish taken, which will probably be a disincentive for continued commercial fishing operations of that kind. However, persons fishing under a commercial finfish fisherman's license are able to and probably will shift effort to other finfish species rather than stop fishing. Therefore, the employment impacts of the proposed rules will be limited to a small (fewer than 10) number of individuals who commercially harvest gar in freshwater.
The direct employment impacts of the proposed rule governing commercial take of flounder should be positive over time, as the proposed rules are intended to recover spawning biomass and restore the fishery.
The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rules.
The department has determined that Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules) does not apply to the proposed rules.
Comments on the proposed rules may be submitted by phone or e-mail to: Robert Macdonald (Wildlife, (512) 389-4775; e-mail: robert.macdonald@tpwd.state.tx.us), Ken Kurzawski (Inland Fisheries, (512) 389-4591; e-mail: ken.kurzawski@tpwd.state.tx.us), Paul Hammerschmidt (Coastal Fisheries, (512) 389-4650; e-mail: paul.hammerschmidt@tpwd.state.tx.us), or David Sinclair (Law Enforcement, (512) 389-4854; e-mail: david.sinclair@tpwd.state.tx.us), Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4775 or 1-800-792-1112.
DIVISION 1. GENERAL PROVISIONS
The amendments are proposed under the authority of Parks and Wildlife Code, §42.0188, which authorizes the commission to modify or eliminate the tagging requirements of Parks and Wildlife Code, §42.018; and Parks and Wildlife Code, Chapter 47, which authorizes the commission to adopt rules governing the issuance and use of resident and nonresident fishing guide licenses, including rules creating separate fishing guide licenses for use in saltwater and freshwater.
The proposed amendments affect Parks and Wildlife Code, Chapters 42, 47, and 61.
§65.3.Definitions.
The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. All other words and terms in this chapter shall have the meanings assigned in the Texas Parks and Wildlife Code.
(1) - (40) (No change.)
(41) Paddle craft--Any non-motorized vessel.
(42) Paddle-craft fishing guide--A person who, for compensation, accompanies, assists, or transports a person or persons by means of a non-motorized vessel engaged in fishing in the coastal waters of this state.
(43) [(41)] Permanent residence--One's
principal or ordinary home or dwelling place. This does not include
a temporary abode or dwelling such as a hunting/fishing club, or any
club house, cabin, tent, or trailer house used as a hunting/fishing
club, or any hotel, motel, or rooming house used during a hunting,
fishing, pleasure, or business trip.
(44) [(42)] Pole and line--A
line with hook, attached to a pole. This gear includes rod and reel.
(45) [(43)] Possession limit--The
maximum number of a wildlife resource that may be lawfully possessed
at one time.
(46) [(44)] Purse seine (net)--A
net with flotation on the corkline adequate to support the net in
open water without touching bottom, with a rope or wire cable strung
through rings attached along the bottom edge to close the bottom of
the net.
(47) [(45)] Sail line--A type
of trotline with one end of the main line fixed on the shore, the
other end of the main line attached to a wind-powered floating device
or sail.
(48) [(46)] Sand Pump--A self-contained,
hand-held, hand-operated suction device used to remove and capture
Callianassid ghost shrimp (Callichirus islagrande, formerly Callianassa
islagrande) from their burrows.
(49) [(47)] Seine--A section
of non-metallic mesh webbing, the top edge buoyed upwards by a floatline
and the bottom edge weighted.
(50) [(48)] Silencer or sound-suppressing
device--Any device that reduces the normal noise level created when
the firearm is discharged or fired.
(51) [(49)] Spear--Any shaft
with single or multiple points, barbed or barbless, which may be propelled
by any means, but does not; include arrows.
(52) [(50)] Spear gun--Any hand-operated
device designed and used for propelling a spear, but does not include
the crossbow.
(53) [(51)] Spike-buck deer--A
buck deer with no antler having more than one point.
(54) [(52)] Throwline--A fishing
line with five or less hooks and with one end attached to a permanent
fixture. Components of a throwline may also include swivels, snaps,
rubber and rigid support structures.
(55) [(53)] Trap--A rigid device
of various designs and dimensions used to entrap aquatic life.
(56) [(54)] Trawl--A bag-shaped
net which is dragged along the bottom or through the water to catch
aquatic life.
(57) [(55)] Trotline--A nonmetallic
main fishing line with more than five hooks attached and with each
end attached to a fixture.
(58) [(56)] Umbrella net--A non-metallic
mesh net that is suspended horizontally in the water by multiple lines
attached to a rigid frame.
(59) [(57)] Unbranched antler--An
antler having no more than one antler point.
(60) [(58)] Upper-limb disability--A
permanent loss of the use of fingers, hand or arm in a manner that
renders a person incapable of using a longbow, compound bow or recurved bow.
(61) [(59)] Wildlife resources--Alligators,
all game animals, all game birds, and aquatic animal life.
(62) [(60)] Wounded deer--A deer
leaving a blood trail.
§65.10.Possession of Wildlife Resources.
(a) (No change.)
(b) Under authority of Parks and Wildlife Code, §42.0177, the tagging requirements of Parks and Wildlife Code, §42.018 are modified as follows.
(1) Tagging requirements for a carcass cease when a carcass is at a final destination and:
(A) all skin has been removed from the carcass; and
(B) at least one forequarter or hindquarter has been completely severed from the carcass.
(2) The provisions of this subsection do not:
(A) modify or eliminate any requirement of this subchapter or the Parks and Wildlife Code applicable to a carcass before it is at a final destination; or
(B) apply to any other documentation requirement of this subchapter or the Parks and Wildlife Code applicable to a carcass before it has been processed beyond quartering.
(c) [(b)] A person who lawfully
takes a deer is exempt from the tagging requirements of Parks and
Wildlife Code, §42.018 if the deer is taken:
(1) under the provisions of §65.26 of this title (relating to Managed Lands Deer Permits (MLDP)--White-tailed Deer);
(2) under the provisions of §65.34 of this title (relating to Managed Lands Deer Permits (MLDP)--Mule Deer);
(3) under the provisions of §65.28 of this title (relating to Landowner Assisted Management Permits (LAMPS));
(4) under an antlerless mule deer permit issued under §65.32 of this title (relating to Antlerless Mule Deer Permits);
(5) by special permit under the provisions of Subchapter H of this chapter (relating to Public Lands Proclamation);
(6) on department-leased lands under the provisions of Parks and Wildlife Code, §11.0271;
(7) by special antlerless permit issued by the U.S. Forest Service (USFS) for use on USFS lands that are part of the department's public hunting program; or
(8) under the provisions of §65.27 of this title (relating to Antlerless and Spike-Buck Deer Control Permits).
(d) [(c)] A person who kills
a bird or animal under circumstances that require the bird or animal
to be tagged with a tag from the person's hunting license shall immediately
attach a properly executed tag to the bird or animal.
(e) [(d)] Proof of sex must remain
with certain wildlife resources until the wildlife resource reaches
either the possessor's permanent residence or a cold storage/processing
facility and is finally processed. Proof of sex is as follows:
(1) turkey (in a county where the bag composition is restricted to gobblers and/or bearded hens):
(A) male turkey:
(i) one leg, including the spur, attached to the bird; or
(ii) the bird, accompanied by a patch of skin with breast feathers and beard attached.
(B) female turkey taken during the fall season: the bird, accompanied by a patch of skin with breast feathers and beard attached.
(2) deer:
(A) buck: the head, with antlers still attached;
(B) antlerless: the head;
(3) antelope: the unskinned head; and
(4) pheasant: one leg, including the spur, attached to the bird or the entire plumage attached to the bird.
(f) [(e)] No additional proof
of sex is required for a deer that is lawfully tagged in accordance with:
(1) the provisions of §65.26 of this title;
(2) the provisions of §65.34 of this title;
(3) the provisions of §65.28 of this title;
(4) the provisions of §65.32 of this title;
(5) on department-leased lands under the provisions of Parks and Wildlife Code, §11.0271; or
(6) under the provisions of §65.27 of this title (relating to Antlerless and Spike-Buck Deer Control Permits).
(g) [(f)] In lieu of proof of
sex, the person who killed the wildlife resource may:
(1) obtain a receipt from a taxidermist or a signed statement from the landowner, containing the following information:
(A) the name of person who killed the wildlife resource;
(B) the date the wildlife resource was killed;
(C) one of the following, as applicable:
(i) whether the deer was antlered or antlerless;
(ii) the sex of the antelope;
(iii) the sex of the turkey and whether a beard was attached; or
(iv) the sex of the pheasant; or
(2) if the deer is to be tested by the department for chronic wasting disease, obtain a department-issued receipt (PWD 905).
(h) [(g)] A person may give,
leave, receive, or possess any species of legally taken wildlife resource,
or a part of the resource, that is required to have a tag or permit
attached or is protected by a bag or possession limit, if the wildlife
resource is accompanied by a wildlife resource document from the person
who killed or caught the wildlife resource. A wildlife resource may
be possessed without a WRD by the person who took the wildlife resource,
provided the person is in compliance with all other applicable provisions
of this subchapter and the Parks and Wildlife Code.
(1) For deer, turkey, or antelope, a properly executed wildlife resource document shall accompany the wildlife resource until it reaches either the possessor's permanent residence or a cold storage/processing facility and is finally processed.
(2) For all other wildlife resources, a properly executed wildlife resource document shall accompany the wildlife resource until it reaches the possessor's permanent residence and is finally processed.
(3) The wildlife resource document must contain the following information:
(A) the name, signature, address, and hunting or fishing license number, as required, of the person who killed or caught the wildlife resource;
(B) the name of the person receiving the wildlife resource;
(C) a description of the wildlife resource (number and type of species or parts);
(D) the date the wildlife resource was killed or caught; and
(E) the location where the wildlife resource was killed or caught (name of ranch; area; lake, bay or stream; and county).
(4) A taxidermist who accepts a deer or turkey shall retain the wildlife resource document or tag accompanying each deer or turkey for a period of two years following the return of the resource to the owner or the sale of the resource under the provisions of Parks and Wildlife Code, §62.023.
(i) [(h)] It is a defense to
prosecution if the person receiving the wildlife resource does not
exceed any possession limit or possesses a wildlife resource or a
part of a wildlife resource that is required to be tagged if the wildlife
resource or part of the wildlife resource is tagged.
(j) [(i)] The identification
requirements for desert bighorn sheep skulls are as follows.
(1) No person may possess the skull of a desert bighorn ram in this state unless:
(A) one horn has been marked with a department identification plug by a department representative; or
(B) the person also possesses evidence of lawful take in the state or country where the ram was killed.
(2) A person may possess the skull and horns of a desert bighorn ram found dead in the wild, provided:
(A) the person did not cause or participate in the death of the ram;
(B) the person notifies a department biologist or game warden within 48 hours of discovering the dead ram and arranges for marking with a department identification plug by a department representative; and
(C) the landowner on whose property the skull was found signs an affidavit prior to the time the skull is marked that attests the place and date that the person discovered the ram.
(3) Individual horns may be possessed without any identification or documentation.
(4) This subsection does not apply to skulls possessed prior to July 11, 2004.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on February 9, 2009.
TRD-200900484
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Earliest possible date of adoption: March 22, 2009
For further information, please call: (512) 389-4775
(Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Parks and Wildlife Department or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeal is proposed under the authority of Parks and Wildlife Code, §42.0188, which authorizes the commission to modify or eliminate the tagging requirements of Parks and Wildlife Code, §42.018; Parks and Wildlife Code; and Chapter 61, which requires the commission to regulate the periods of time when it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in this state; the means, methods, and places in which it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in this state; the species, quantity, age or size, and, to the extent possible, the sex of the game animals, game birds, or aquatic animal life authorized to be hunted, taken, or possessed; and the region, county, area, body of water, or portion of a county where game animals, game birds, or aquatic animal life ay be hunted, taken, or possessed.
The proposed repeal affects Parks and Wildlife Code, Chapters 42 and 61.
§65.42.Deer.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on February 9, 2009.
TRD-200900483
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Earliest possible date of adoption: March 22, 2009
For further information, please call: (512) 389-4775
The amendments and new section are proposed under the authority of Parks and Wildlife Code, §42.0188, which authorizes the commission to modify or eliminate the tagging requirements of Parks and Wildlife Code, §42.018; Parks and Wildlife Code; and Chapter 61, which requires the commission to regulate the periods of time when it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in this state; the means, methods, and places in which it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in this state; the species, quantity, age or size, and, to the extent possible, the sex of the game animals, game birds, or aquatic animal life authorized to be hunted, taken, or possessed; and the region, county, area, body of water, or portion of a county where game animals, game birds, or aquatic animal life ay be hunted, taken, or possessed.
The proposed amendments and new section affect Parks and Wildlife Code, Chapters 42 and 61.
§65.42.Deer.
(a) No person may exceed the applicable county bag limit or the annual bag limit of five white-tailed deer (no more than three bucks) and two mule deer (no more than one buck), except as provided by:
(1) §65.26 of this title (relating to Managed Lands Deer Permits (MLDP)--White-tailed Deer);
(2) §65.34 of this title (relating to Managed Lands Deer Permits (MLDP)--Mule Deer);
(3) §65.27 of this title (relating to Antlerless and Spike-Buck Deer Control Permits (control permits));
(4) §65.28 of this title (relating to Landowner Assisted Management Permits (LAMPS));
(5) an antlerless mule deer permit issued under §65.32 of this title (relating to Antlerless Mule Deer Permits);
(6) special permits under the provisions of Subchapter H of this chapter (relating to Public Lands Proclamation); or
(7) special antlerless permit issued by the U.S. Forest Service (USFS) for use on USFS lands that are part of the department's public hunting program.
(b) White-tailed deer. The open seasons, annual bag limits, and special provisions for white-tailed deer shall be as follows. If Managed Lands Deer Permits (MLDPs) have been issued for a tract of land in any county, they must be attached to all deer harvested on the tract of land, regardless of season. An MLDP buck permit may not be used to harvest or tag an antlerless deer. An MLDP antlerless permit may not be used to tag a buck deer.
(1) In Aransas, Bee, Brooks, Calhoun, Cameron, Dimmit, Duval, Frio, Hidalgo, Jim Hogg, Jim Wells, Kenedy, Kinney (south of U.S. Highway 90), Kleberg, LaSalle, Live Oak, Maverick, McMullen, Medina (south of U.S. Highway 90), Nueces, Refugio, San Patricio, Starr, Uvalde (south of U.S. Highway 90), Val Verde (that southeastern portion located both south of U.S. Highway 90 and east of Spur 239), Webb, Willacy, Zapata, and Zavala counties, there is a general open season.
(A) Open season: from the first Saturday in November through the third Sunday in January.
(B) Bag limit: five deer, no more than three bucks.
(C) Special late general season. In the counties listed in this paragraph there is a special late general season for the take of antlerless and spike-buck deer only. Open season: 14 consecutive days starting the first Monday following the third Sunday in January.
(D) No permit is required to hunt antlerless deer unless MLDP antlerless permits have been issued for the tract of land.
(2) In Atascosa County there is a general open season.
(A) Open season: from the first Saturday in November through the third Sunday in January.
(B) Bag limit: five deer, no more than two bucks.
(C) Special late general season. In the counties listed in this paragraph there is a special late general season for the take of antlerless and spike-buck deer only. Open season: 14 consecutive days starting the first Monday following the third Sunday in January.
(D) Special provisions.
(i) Buck deer. The provisions of this clause do not apply on properties for which Level 2 or Level 3 MLDPs have been issued. In Atascosa County, a legal buck is a buck deer having:
(I) at least one unbranched antler; or
(II) an inside spread of 13 inches or greater. The inside spread requirement does not apply to any buck that has an unbranched antler. Not more than one buck with an inside spread of 13 inches or greater may be taken.
(ii) Antlerless deer. No permit is required to hunt antlerless deer unless MLDP antlerless permits have been issued for the tract of land.
(3) In Bandera, Baylor, Bexar, Blanco, Burnet, Callahan, Coke, Coleman, Comal (west of Interstate 35), Concho, Crockett, Edwards, Gillespie, Glasscock, Haskell, Hays (west of Interstate 35), Howard, Irion, Jones, Kendall, Kerr, Kimble, Kinney (north of U.S. Highway 90), Knox, Llano, Mason, McCulloch, Medina (north of U.S. Highway 90), Menard, Mitchell, Nolan, Pecos, Real, Reagan, Runnels, San Saba, Schleicher, Shackelford, Sterling, Sutton, Taylor, Terrell, Throckmorton, Tom Green, Travis (west of Interstate 35), Upton, Uvalde (north of U.S. Highway 90), Val Verde (north of U.S. Highway 90; and that portion located both south of U.S. 90 and west of Spur 239), and Wilbarger counties, there is a general open season.
(A) Open season: from the first Saturday in November through the first Sunday in January.
(B) Bag limit: five deer, no more than two bucks.
(C) Special late general season. In the counties listed in this paragraph there is a special late general season for the take of antlerless and spike-buck deer only. Open season: 14 consecutive days starting the first Monday following the first Sunday in January.
(D) No permit is required to hunt antlerless deer unless MLDP antlerless permits have been issued for the tract of land.
(4) In Archer, Bell (west of IH 35), Bosque, Brown, Clay, Coryell, Hamilton, Hill, Jack, Lampasas, McLennan, Mills, Palo Pinto, Somervell, Stephens, Wichita, Williamson (west of IH 35) and Young counties, there is a general open season.
(A) Open season: from the first Saturday in November through the first Sunday in January.
(B) Bag limit: five deer, no more than two bucks.
(C) Special late general season. In the counties listed in this paragraph there is a special late general season for the take of antlerless and spike-buck deer only. Open season: 14 consecutive days starting the first Monday following the first Sunday in January.
(D) Special provisions.
(i) Buck deer. The provisions of this clause do not apply on properties for which Level 2 or Level 3 MLDPs have been issued. In the counties listed in this paragraph, a legal buck is a buck deer having:
(I) at least one unbranched antler; or
(II) an inside spread of 13 inches or greater. The inside spread requirement does not apply to any buck that has an unbranched antler. Not more than one buck with an inside spread of 13 inches or greater may be taken.
(ii) Antlerless deer. No permit is required to hunt antlerless deer unless MLDP antlerless permits have been issued for the tract of land.
(5) In Armstrong, Borden, Briscoe, Carson, Childress, Collingsworth, Cottle, Crosby, Dickens, Donley, Fisher, Floyd, Foard, Garza, Gray, Hall, Hardeman, Hemphill, Hutchinson, Kent, King, Lipscomb, Motley, Ochiltree, Roberts, Scurry, Stonewall, and Wheeler counties, there is a general open season.
(A) Open season: from the first Saturday in November through the first Sunday in January.
(B) Bag limit: five deer, no more than one buck.
(C) Special late general season. In the counties listed in this paragraph there is a special late general season for the take of antlerless and spike-buck deer only. Open season: 14 consecutive days starting the first Monday following the first Sunday in January.
(D) No permit is required to hunt antlerless deer unless MLDP antlerless permits have been issued for the tract of land.
(6) In Brewster, Culberson, Jeff Davis, Presidio, and Reeves counties, there is a general open season.
(A) Open season: from first Saturday in November through the first Sunday in January.
(B) Bag limit: four deer, no more than two bucks.
(C) No permit is required to hunt antlerless deer unless MLDP antlerless permits have been issued for the tract of land.
(7) In Comanche, Cooke, Denton, Eastland, Erath, Hood, Johnson, Montague, Parker, Tarrant, and Wise counties, there is a general open season.
(A) Open season: from the first Saturday in November through the first Sunday in January.
(B) Bag limit: four deer, no more than two bucks and no more than two antlerless.
(C) Special late general season. In the counties listed in this paragraph there is a special late general season for the take of antlerless and spike-buck deer only. Open season: 14 consecutive days starting the first Monday following the first Sunday in January.
(D) Special provisions.
(i) Buck deer. The provisions of this clause do not apply on properties for which Level 2 or Level 3 MLDPs have been issued. In the counties listed in this paragraph, a legal buck is a buck deer having:
(I) at least one unbranched antler; or
(II) an inside spread of 13 inches or greater. The inside spread requirement does not apply to any buck that has an unbranched antler. Not more than one buck with an inside spread of 13 inches or greater may be taken.
(ii) Antlerless deer.
(I) On USFS, Corps of Engineers, and river authority lands in the counties listed in this paragraph, the take of antlerless deer shall be by permit only, except on USFS lands in Montague and Wise counties, where antlerless deer may be taken without permits from Thanksgiving Day through the Sunday immediately following Thanksgiving Day.
(II) On all tracts of land other than those listed in subclause (I) of this clause, no permit is required to hunt antlerless deer unless MLDP antlerless permits have been issued for the tract of land.
(8) In Angelina, Brazoria, Chambers, Cherokee, Fort Bend, Goliad (south of U.S. Highway 59), Hardin, Harris, Houston, Jackson (south if U.S. Highway 59), Jasper, Jefferson, Liberty, Matagorda, Montgomery, Newton, Orange, Polk, San Jacinto, Trinity, Tyler, Victoria (south of U.S. Highway 59), Walker, and Wharton (south of U.S. Highway 59) counties, there is a general open season.
(A) Open season: from the first Saturday in November through the first Sunday in January.
(B) Bag limit: Four deer, no more than two bucks and no more than two antlerless.
(C) Special provisions.
(i) Buck deer. The provisions of this clause do not apply on properties for which Level 2 or Level 3 MLDPs have been issued. In the counties listed in this paragraph, a legal buck is a buck having:
(I) at least one unbranched antler; or
(II) an inside spread of 13 inches or greater. The inside spread requirement does not apply to any buck that has an unbranched antler. Not more than one buck with an inside spread of 13 inches or greater may be taken.
(ii) Antlerless deer. If permits have been issued for the harvest of antlerless deer, they must be attached to all antlerless deer harvested on the tract of land.
(I) On USFS, Corps of Engineers, and river authority lands in the counties listed in this paragraph, the take of antlerless deer shall be by permit only.
(II) On all other tracts of land in the counties listed in this paragraph, antlerless deer may be taken without permits from opening day through the Sunday immediately following Thanksgiving Day. From the Monday immediately following Thanksgiving Day until the end of the season, antlerless deer may be taken by antlerless MLD permit or LAMPS permit only.
(III) On tracts of land for which LAMPS permits have been issued, no LAMPS permit is required for the harvest of antlerless deer during the archery-only or muzzleloader-only open season.
(9) In Bowie, Cass, Harrison, Marion, Nacogdoches, Panola, Rusk, Sabine, San Augustine, and Shelby counties, there is a general open season.
(A) Open season: from the first Saturday in November through the first Sunday in January.
(B) Bag limit: four deer, no more than two bucks and no more two antlerless.
(C) Special provisions.
(i) Buck deer. The provisions of this clause do not apply on properties for which Level 2 or Level 3 MLDPs have been issued. In the counties listed in this paragraph, a legal buck is a buck deer having:
(I) at least one unbranched antler; or
(II) an inside spread of 13 inches or greater. The inside spread requirement does not apply to any buck that has an unbranched antler. Not more than one buck with an inside spread of 13 inches or greater may be taken.
(ii) Antlerless deer. If permits have been issued for the harvest of antlerless deer, they must be attached to all antlerless deer harvested on the tract of land.
(I) On USFS, Corps of Engineers, and river authority lands in the counties listed in this paragraph, the take of antlerless deer shall be by permit only.
(II) On all other tracts of land in the counties listed in this paragraph, antlerless deer may be taken without permits during the first 16 days of the season. After the first 16 days of the season, antlerless deer may be taken by antlerless MLD permit or LAMPS permit only.
(III) On tracts of land for which LAMPS permits have been issued, no LAMPS permit is required for the harvest of antlerless deer during the archery-only or muzzleloader-only open season.
(10) In Anderson, Brazos, Camp, Delta, Fannin, Franklin, Gregg, Grimes, Henderson, Hopkins, Hunt, Lamar, Leon, Madison, Morris, Rains, Red River, Robertson, Smith, Titus, Upshur, Van Zandt, and Wood counties, there is a general open season.
(A) Open season: from the first Saturday in November through the first Sunday in January.
(B) Bag limit: four deer, no more than two antlerless and no more than two bucks.
(C) Special provisions.
(i) Buck deer. The provisions of this clause do not apply on properties for which Level 2 or Level 3 MLDPs have been issued. In the counties listed in this paragraph, a legal buck is a buck deer having:
(I) at least one unbranched antler; or
(II) an inside spread of 13 inches or greater. The inside spread requirement does not apply to any buck that has an unbranched antler. Not more than one buck with an inside spread of 13 inches or greater may be taken.
(ii) Antlerless deer. If permits have been issued for the harvest of antlerless deer, they must be attached to all antlerless deer harvested on the tract of land.
(I) On USFS, Corps of Engineers, and river authority lands in the counties listed in this paragraph, the take of antlerless deer shall be by permit only, except in Fannin County.
(II) On all other tracts of land in the counties listed in this paragraph, antlerless deer may be taken without permits from Thanksgiving Day through the Sunday immediately following Thanksgiving Day. At all other times, antlerless deer may be taken by antlerless MLD permit or LAMPS permit only.
(III) On tracts of land for which LAMPS permits have been issued, no LAMPS permit is required for the harvest of antlerless deer during the archery-only or muzzleloader-only open season.
(11) In Grayson County there is a general open season.
(A) Open season: from the first Saturday in November through the first Sunday in January.
(B) Bag limit: four deer, no more than two antlerless and no more than two bucks.
(C) Special provisions. Lawful means are restricted to lawful archery equipment and crossbows only, including MLDP properties.
(i) Buck deer. The provisions of this clause do not apply on properties for which Level 2 or Level 3 MLDPs have been issued. In the counties listed in this paragraph, a legal buck is a buck deer having:
(I) at least one unbranched antler; or
(II) an inside spread of 13 inches or greater. The inside spread requirement does not apply to any buck that has an unbranched antler. Not more than one buck with an inside spread of 13 inches or greater may be taken.
(ii) Antlerless deer. Antlerless deer may be taken by MLD antlerless permits only. If permits have been issued for the harvest of antlerless deer, they must be attached to all antlerless deer harvested on the tract of land.
(12) In Austin, Bastrop, Bell (east of IH 35), Burleson, Caldwell, Colorado, Comal (east of IH 35), De Witt, Ellis, Falls, Fayette, Freestone, Goliad (north of U.S. Highway 59), Gonzales, Guadalupe, Hays (east of IH 35), Jackson (north of U.S. Highway 59), Karnes, Kaufman, Lavaca, Lee, Limestone, Milam, Navarro, Travis (east of IH 35), Victoria (north of U.S. Highway 59), Waller, Washington, Wharton (north of U.S. Highway 59), Williamson (east of IH 35) and Wilson counties, there is a general open season.
(A) Open season: from the first Saturday in November through the first Sunday in January.
(B) Bag limit: four deer, no more than two antlerless and no more than two bucks.
(C) Special provisions.
(i) Buck deer. The provisions of this clause do not apply on properties for which Level 2 or Level 3 MLDPs have been issued. In the counties listed in this paragraph, a legal buck is a buck deer having:
(I) at least one unbranched antler; or
(II) an inside spread of 13 inches or greater. The inside spread requirement does not apply to any buck that has an unbranched antler. Not more than one buck with an inside spread of 13 inches or greater may be taken.
(ii) Antlerless deer.
(I) Antlerless deer may be taken by MLD antlerless or LAMPS permits only.
(II) On tracts of land for which LAMPS permits have been issued, no LAMPS permit is required for the harvest of antlerless deer during the archery-only or muzzleloader-only open season.
(13) In Dallam, Dawson, Deaf Smith, Hansford, Hartley, Martin, Moore, Oldham, Potter, Randall, Sherman, and Swisher counties, there is a general open season.
(A) Open season: from the first Saturday in November through the first Sunday in January.
(B) Bag limit: three deer, no more than one buck and no more than two antlerless.
(C) No permit is required to hunt antlerless deer unless MLDP antlerless permits have been issued for the tract of land.
(14) In Crane, Ector, Loving, Midland, and Ward counties, there is a general open season.
(A) Open season: from the first Saturday in November through the first Sunday in January.
(B) Bag limit: three deer, no more than one buck and no more than two antlerless.
(C) Antlerless deer may be taken by MLD antlerless or LAMPS permits only.
(15) In Andrews, Bailey, Castro, Cochran, Collin, Dallas, El Paso, Gaines, Galveston, Hale, Hockley, Hudspeth, Lamb, Lubbock, Lynn, Parmer, Rockwall, Terry, Winkler, and Yoakum counties, there is no general open season.
(16) Archery-only open seasons. In all counties where there is a general open season for white-tailed deer, there is an archery-only open season during which either sex of white-tailed deer may be taken as provided for in §65.11(2) and (3) of this title (relating to Means and Methods).
(A) Open season: from the Saturday closest to September 30 for 35 consecutive days.
(B) Bag limit: the bag limit in any given county is as provided for that county during the general open season.
(C) No permit is required to hunt antlerless deer unless MLDP permits have been issued for the property.
(17) Muzzleloader-only open seasons, and bag and possession limits shall be as follows. In Angelina, Austin, Bastrop, Bowie, Brazoria, Brewster, Caldwell, Camp, Cass Chambers, Cherokee, Colorado, Culberson, DeWitt, Fayette, Fort Bend, Goliad, Gonzales, Gregg, Guadalupe, Hardin, Harris, Harrison, Houston, Jackson, Jasper, Jeff Davis, Jefferson, Karnes, Lavaca, Lee, Liberty, Marion, Matagorda, Montgomery, Morris, Nacogdoches, Newton, Orange, Panola, Polk, Presidio, Reeves, Rusk, Sabine, San Augustine, San Jacinto, Shelby, Trinity, Tyler, Upshur, Victoria, Walker, Waller, Washington, Wharton, and Wilson counties, there is an open season during which deer may be taken only with a muzzleloader.
(A) Open Season: 14 consecutive days starting the first Monday following the first Sunday in January.
(B) Bag limit: as specified in this section for the general season in the county in which take occurs.
(C) Special provisions:
(i) Buck deer. In any given county, all restrictions established in this subsection for the take of buck deer during the general season remain in effect.
(ii) Antlerless deer. No permit is required for the take of antlerless deer, except:
(I) on properties for which antlerless MLDPs have been issued; and
(II) in the counties that are also listed in paragraph (10) of this subsection.
(18) Special Youth-Only Seasons. There shall be special youth-only general hunting seasons in all counties where there is a general open season for white-tailed deer.
(A) early open season: the Saturday and Sunday immediately before the first Saturday in November.
(B) late open season: 14 consecutive days starting the first Monday following the first Sunday in January.
(C) Bag limits, provisions for the take of antlerless deer, and special requirements in the individual counties listed in paragraphs (1) - (13) of this subsection shall be as specified for the first two days of the general open season in those counties, except as provided in subparagraph (D) of this paragraph.
(D) Provisions for the take of antlerless deer in the individual counties listed in paragraph (10) of this subsection shall be as specified in those counties for the period of time from Thanksgiving Day through the Sunday immediately following Thanksgiving Day.
(E) Licensed hunters 16 years of age or younger may hunt deer by any lawful means during the seasons established by subparagraphs (A) and (B) of this paragraph.
(F) The stamp requirement of Parks and Wildlife Code, Chapter 43, Subchapter I, does not apply during the seasons established by this paragraph.
(c) Mule deer. The open seasons and annual bag limits for mule deer shall be as follows.
(1) In Armstrong, Borden, Briscoe, Carson, Childress, Coke, Collingsworth, Cottle, Crosby, Dallam, Deaf Smith, Dickens, Donley, Fisher, Floyd, Foard, Garza, Gray, Hall, Hansford, Hardeman, Hartley, Hemphill, Hutchinson, Kent, King, Lipscomb, Moore, Motley, Ochiltree, Oldham, Potter, Randall, Roberts, Scurry, Sherman, Stonewall, and Swisher counties, there is a general open season.
(A) Open season: Saturday before Thanksgiving for 16 consecutive days.
(B) Bag limit: two deer, no more than one buck.
(C) Antlerless deer may be taken only by Antlerless Mule Deer or MLD Permits.
(2) In Brewster, Crane, Crockett, Culberson, Ector, El Paso, Hudspeth, Jeff Davis, Loving, Midland, Pecos, Presidio, Reagan, Reeves, Terrell, Upton, Val Verde, Ward, and Winkler counties, there is a general open season.
(A) Open season: last Saturday in November for 16 consecutive days.
(B) Bag limit: two deer, no more than one buck.
(C) Antlerless deer may be taken only by Antlerless Mule Deer or MLD Permits.
(3) In Andrews, Bailey, Cochran, Gaines, Hockley, Lamb, Martin, Parmer, Terry, and Yoakum counties, there is a general open season.
(A) Open season: Saturday before Thanksgiving for nine consecutive days.
(B) Bag limit: two deer, no more than one buck.
(C) Antlerless deer may be taken by permit only.
(4) In all other counties, there is no general open season for mule deer.
(5) Archery-only open seasons and bag and possession limits shall be as follows. During an archery-only open season, deer may be taken only as provided for in §65.11(2) and (3) of this title (relating to Means and Methods). No antlerless permit is required unless MLD antlerless permits have been issued for the property.
(A) In Armstrong, Borden, Briscoe, Carson, Childress, Coke, Collingsworth, Cottle, Crane, Crockett, Crosby, Culberson, Dallam, Deaf Smith, Dickens, Donley, Ector, El Paso, Fisher, Floyd, Foard, Garza, Gray, Hall, Hansford, Hardeman, Hartley, Hemphill, Hudspeth, Hutchinson, Jeff Davis, Kent, King, Lipscomb, Loving, Midland, Moore, Motley, Ochiltree, Oldham, Potter, Presidio, Randall, Reagan, Reeves, Roberts, Scurry, Sherman, Stonewall, Swisher, Upton, Val Verde, Ward, and Winkler counties, there is an open season.
(i) Open season: from the Saturday closest to September 30 for 35 consecutive days.
(ii) Bag limit: one buck deer.
(B) In Brewster, Pecos, and Terrell counties, there is an open season.
(i) Open season: from the Saturday closest to September 30 for 35 consecutive days.
(ii) Bag limit: two deer, no more than one buck.
(C) In all other counties, there is no archery-only open season for mule deer.
§65.56.Lesser Prairie Chicken: Open Season, Bag, and Possession Limits
[(a)] There is no open season for lesser
prairie chicken [except on properties for which the department
has approved a wildlife management plan that contains a component
specifically addressing the management of lesser prairie chicken].
[(1) Open season: Third
Saturday in October for two consecutive days.]
[(2) Daily bag limit: Two lesser prairie chickens.]
[(3) Possession limit: Four lesser prairie chickens.]
[(b) It is unlawful to
hunt prairie chicken by any means other than shotgun.]
§65.64.Turkey.
(a) (No change.)
(b) Rio Grande Turkey. The open seasons and bag limits for Rio Grande turkey shall be as follows.
(1) - (3) (No change.)
(4) Special Youth-Only Seasons. Only licensed hunters 16 years of age or younger may hunt during the seasons established by this subsection.
(A) There shall be a special youth-only fall general hunting season in all counties where there is a fall general open season.
(i) open season: the weekend (Saturday and Sunday) immediately preceding the first Saturday in November, and the third weekend (Saturday and Sunday) in January.
(ii) bag limit: as specified for individual counties in paragraph (1) of this subsection.
(B) There shall be special youth-only spring general
open hunting seasons for Rio Grande turkey in the counties listed
in paragraph (3)[(A)] of this subsection [
section].
(i) open seasons: the weekend (Saturday and Sunday) immediately preceding the first day of the general open spring season and the weekend (Saturday and Sunday) immediately following the close of the general open spring season.
(ii) bag limit: as specified for individual counties
in paragraph (3)[(A)(ii)] of this subsection.
(c) (No change.)
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on February 9, 2009.
TRD-200900485
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Earliest possible date of adoption: March 22, 2009
For further information, please call: (512) 389-4775
The amendments are proposed under the authority of Parks and Wildlife Code, Chapter 47, which authorizes the commission to adopt rules governing the issuance and use of resident and nonresident fishing guide licenses, including rules creating separate fishing guide licenses for use in saltwater and freshwater; and Parks and Wildlife Code, Chapter 61, which requires the commission to regulate the periods of time when it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in this state; the means, methods, and places in which it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in this state; the species, quantity, age or size, and, to the extent possible, the sex of the game animals, game birds, or aquatic animal life authorized to be hunted, taken, or possessed; and the region, county, area, body of water, or portion of a county where game animals, game birds, or aquatic animal life ay be hunted, taken, or possessed.
The proposed amendments affect Parks and Wildlife Code, Chapters 47 and 61.
§65.72.Fish.
(a) (No change.)
(b) Bag, possession, and length limits.
(1) The possession limit does not apply to fish in the possession of or stored by a person who has an invoice or sales ticket showing the name and address of the seller, number of fish by species, date of the sale, and other information required on a sales ticket or invoice.
(2) There are no bag, possession, or length limits on game or non-game fish, except as provided in these rules.
(A) Possession limits are twice the daily bag limit on game and non-game fish except as provided in these rules.
(B) For flounder, the possession limit is the daily bag limit.
(C) Except as provided in subparagraph (D) of this paragraph, the statewide daily bag and length limits shall be as follows.
Figure: 31 TAC §65.72(b)(2)(C)
(D) Exceptions to statewide daily bag, possession, and length limits shall be as follows:
(i) Freshwater species.
Figure: 31 TAC §65.72(b)(2)(D)(i)
(ii) Saltwater species.
Figure: 31 TAC §65.72(b)(2)(D)(ii) (No change.)
(iii) Bag and possession limits for black drum and sheepshead do not apply to the holder of a valid Commercial Finfish Fisherman's License.
(iv) Fish caught in federal waters in compliance with a federal fishery management plan may be landed in Texas.
(v) The bag limit for a guided fishing party is equal to the total number of persons in the boat licensed to fish or otherwise exempt from holding a license minus each fishing guide and fishing guide deckhand multiplied by the bag limit for each species harvested.
(c) Devices, means and methods.
(1) - (4) (No change.)
(5) Device restrictions.
(A) - (E) (No change.)
(F) Lawful archery equipment. Only non-game fish [,
channel catfish, blue catfish, and flathead catfish] may be
taken with lawful archery equipment or crossbow. [After August
31, 2008, only nongame fish may be taken by means of lawful archery
or crossbow.]
(G) - (R) (No change.)
§65.73.Fishing Guide License--Required Documentation.
(a) No person shall engage in business as a fishing guide in the coastal waters of this state unless that person possesses a fishing guide license and has paid the appropriate licensure fee for saltwater use.
(b) No person operating a vessel or boat as a fishing guide on or in the coastal waters of this state may be issued a Fishing Guide license unless the person presents documentation to the license deputy that the applicant possesses a valid and appropriate U.S. Coast Guard Operator's License.
(c) No person shall engage in business as a paddle craft fishing guide in the coastal waters of this state unless that person possesses a Paddle Craft All-Water Fishing Guide license or an All Water Fishing Guide license and has paid the appropriate license fee.
(d) No person may be issued a Paddle Craft All-Water Fishing Guide license unless the person possesses proof that the person has successfully completed:
(1) training in CPR and First Aid from a department-approved organization;
(2) a department-approved boater education course or equivalency examination; and
(3) the "Three Star Sea Kayak" and "Four Star Leader Sea Kayak" training from the British Canoe Union; or
(4) "Level II Essentials of Kayak Touring" and "Coastal Kayak Day Trip Leading" from the American Canoe Association.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on February 9, 2009.
TRD-200900486
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Earliest possible date of adoption: March 22, 2009
For further information, please call: (512) 389-4775
The Texas Parks and Wildlife Department proposes amendments to §§65.190, 65.201, and 65.202, concerning Public Lands Proclamation, and §65.256, concerning the Bobcat Proclamation.
The proposed amendments are necessary as a result of the department's review of its regulations under the provisions of Government Code, §2001.039, which requires a state agency to review each of its regulations no less frequently than every four years and to readopt, adopt with changes, or repeal each rule as a result of the review.
The proposed amendment to §65.190, concerning Application, would add the McGillvray and Leona McKie Muse Wildlife Management Area (WMA) to the list of named WMAs to which the provisions of the subchapter apply. The Muse WMA was donated to the department in 2008 and is named in honor of the donors. The proposed amendment also would rename Peach Point WMA as the Justin Hurst WMA. Justin Hurst began his career with the department as a biologist, became a game warden, and was killed in the line of duty in 2008. Peach Point WMA has been renamed in his honor. See, Texas House Bill 12, §53, 80th Texas Legislature, Regular Session (2007)
The proposed amendment to §65.201, concerning Motor Vehicles, would alter subsection (d) to stipulate that persons using motor vehicles or off-road vehicles to assist a disabled hunter must remain with normal speaking distance of the person being assisted unless such use is otherwise authorized or the person is using the vehicle or off-road vehicle to return to a designated road or trail. The current rules allowing the use of motor vehicles and off-road vehicles to assist disabled hunters are not intended to provide able-bodied persons a privilege that is not available to other able-bodied hunters. The proposed amendment is necessary to ensure that motor vehicle and off-road vehicles use for assisting disabled hunters be confined to assisting the disabled hunter.
The proposed amendment to §65.202, concerning Minors Hunting on Public Lands, would replace the word "minor" with the word "youth" and retitle the section to refer to "public hunting lands." The word "minor" is normally used to refer to a person below the age of 18 which is the age of legal majority, Texas Family Code §101.003. Since the rules refer to individuals under the age of 12 years, the term "youth" is more accurate. The proposed amendment would require youth under the age of 12 to be accompanied by a permitted adult when hunting. The proposed amendment would relax the supervision requirements for a youth age 12 or older who has completed hunter education, so long as a supervising adult is on the public hunting area, The proposed amendment is intended to allow some autonomy for responsible youths, while also ensuring appropriate supervision.
The proposed amendment to §65.256, concerning Penalties, corrects an inaccurate reference to statutory provisions for penalties. The current rule refers to Parks and Wildlife Code, Chapter 71. Chapter 71 governs furbearing animals; however, bobcats are classified by statute as nongame under Chapter 67.
Robert Macdonald, Regulations Coordinator, has determined that for each of the first five years that the rules as proposed are in effect, there will be no fiscal implications to state or local government as a result of enforcing or administering the rules.
Mr. Macdonald also has determined that for each of the first five years the rules as proposed are effect, the public benefit anticipated as a result of enforcing or administering the rules as proposed will be accurate and consistent rules governing public hunting lands.
Under the provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses and micro-businesses. The department has determined that there will be no direct economic effect on small or micro-businesses or persons required to comply as a result of the proposed rules. The rules would not compel or mandate any action on the part of any entity, including small businesses or microbusinesses. In particular, the proposed rules would not add new reporting or recordkeeping requirements; require any new professional expertise, capital costs, or costs for modification of existing processes or procedures; lead to loss of sales or profits; change market competition; or increase taxes or fees. Accordingly, the department has not prepared a regulatory flexibility analysis under Government Code, Chapter 2006.
The department has not drafted a local employment impact statement under the Administrative Procedures Act, §2001.022, as the agency has determined that the rules as proposed will not impact local economies.
The department has determined that Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules) does not apply to the proposed rules.
The department has determined that Government Code, Chapter 2007 (Governmental Action Affecting Private Property Rights), does not apply to the proposed rules.
Comments on the proposed rules may be submitted to Ms. Vickie Fite, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4773 (e-mail: vickie.fite@tpwd.state.tx.us).
SUBCHAPTER H. PUBLIC LANDS PROCLAMATION
31 TAC §§65.190, 65.201, 65.202
The amendments are proposed under the authority of Parks and Wildlife Code, Chapter 81, which authorizes the department to develop, maintain, and operate, wildlife management areas and public hunting lands and to prescribe the means, methods, and conditions for the taking of game or fish during an open season in wildlife management areas or public hunting lands.
The proposed amendments affect Parks and Wildlife Code, Chapters 67 and 81.
§65.190.Application.
(a) - (d) (No change.)
(e) Public hunting lands include, but are not limited to, the following:
(1) - (25) (No change.)
(26) Justin Hurst WMA (Unit 731);
(27) [(26)] Keechi Creek WMA (Unit 726);
(28) [(27)] Kerr WMA (Unit 756);
(29) [(28)] Lake McClellan Recreation Area (Unit 906);
(30) [(29)] Lower Neches WMA
(Unit 728)--includes Old River Unit and Nelda Stark Unit;
(31) [(30)] Mad Island WMA (Unit 729);
(32) [(31)] Mason Mountain WMA (Unit 749);
(33) [(32)] Matador WMA (Unit 702);
(34) [(33)] Matagorda Island WMA (Unit 722);
(35) McGillvray and Leona McKie Muse WMA (Unit 750);
(36) [(34)] M.O. Neasloney WMA;
(37) [(35)] Moore Plantation WMA (Unit 902);
(38) [(36)] Nannie Stringfellow WMA (Unit 716);
(39) [(37)] North Toledo Bend WMA (Unit 615);
(40) [(38)] Old Sabine Bottom WMA (Unit 732);
(41) [(39)] Old Tunnel WMA;
(42) [(40)] Pat Mayse WMA (Unit 705);
[(41) Peach Point WMA (Unit 721);]
(43) [(42)] Ray Roberts WMA (Unit 501);
(44) [(43)] Redhead Pond WMA;
(45) [(44)] Richland Creek WMA (Unit 703);
(46) [(45)] Sam Houston National Forest WMA (Unit 905);
(47) [(46)] Sierra Diablo WMA (Unit 767);
(48) [(47)] Somerville WMA (Unit 711);
(49) [(48)] Tawakoni WMA (Unit 708);
(50) [(49)] Walter Buck WMA (Unit 757);
(51) [(50)] Welder Flats WMA;
(52) [(51)] White Oak Creek WMA (Unit 727); and
(53) [(52)] Other numbered units
of public hunting lands.
§65.201.Motor Vehicles.
(a) - (c) (No change.)
(d) Except as authorized for specific areas and time periods by order of the executive director, or by written permission of the hunt supervisor or area manager, it is an offense for an individual other than a disabled person or a person directly assisting a disabled person to operate an off-road vehicle on public hunting lands. A person who uses an off-road vehicle to directly assist a disabled person under the provisions of this subchapter may not use the off-road vehicle to travel beyond normal speaking distance of the disabled person:
(1) except to return to an authorized road or trail; or
(2) unless such use is authorized by the department on the unit of public hunting lands at that time.
(e) (No change.)
§65.202.Youth [Minors] Hunting on Public Hunting Lands.
(a) Youth participating in public hunts by special permit must be eight years of age or older at the time of application.
(b) It is an offense for a person younger than
12 years of age [youth] to fail to be under the immediate
supervision of a duly permitted and authorized supervising adult when
hunting on public hunting lands. For a person 12 years of age
or older [youth] who has received hunter education
certification, the requirement for immediate supervision is relaxed
to the extent that the authorized supervising adult is required only
to be present on the public hunting area. The authorized supervising
adult is responsible for the actions and liability of the youth.
(c) Youth participating in a youth waterfowl hunt during the federal youth waterfowl hunting season must be 15 years of age or younger.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on February 9, 2009.
TRD-200900487
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Earliest possible date of adoption: March 22, 2009
For further information, please call: (512) 389-4775
The amendment is proposed under Parks and Wildlife Code, Chapter 67, which authorizes the commission to establish any limits on the taking, possession, propagation, transportation, importation, exportation, sale, or offering for sale of nongame fish or wildlife that the department considers necessary to manage the species.
§65.256.Penalties.
The penalties for violations of this subsection shall be as
prescribed in Parks and Wildlife Code, Chapter 67 [71].
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on February 9, 2009.
TRD-200900488
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Earliest possible date of adoption: March 22, 2009
For further information, please call: (512) 389-4775
The Texas Parks and Wildlife Department proposes an amendment to §65.610 and §65.612, concerning Deer Breeder Permits. The proposed amendments would allow for the donation of deer by a deer breeder to the holder of a valid educational display permit or zoological permit, either by transfer or as a consequence of the termination, suspension, or revocation of a deer breeder permit. Currently, the holder of a deer breeder permit may transfer a deer held under the permit to certain persons and for certain purposes set out §65.610. However, the current list does not include the holder of a zoological or educational display permit. Similarly, the current rule allows the disposition of breeder deer upon the loss of a breeder permit by sale or donation to certain persons set out §65.612. Although the transfer to the holder of a zoological permit is permitted, transfer to the holder of an educational display permit it not. Allowing the transfer of a deer held under a breeder permit to the holder of a educational display or zoological permit would be beneficial to those permit holders. Therefore, the department sees no reason not to allow such a practice. The proposed amendments also would stipulate that such donations are final and irreversible, which is necessary to ensure the integrity of the department's ability to maintain accurate records of deer held by deer breeders.
Mr. Clayton Wolf, Big Game Program Director, has determined that for each of the first five years that the rules as proposed are in effect, there will be no fiscal implications to state or local government as a result of enforcement or administration of the rules.
Mr. Wolf also has determined that for each of the first five years the rules as proposed are in effect, the public benefit anticipated as a result of enforcing or administering the rules as proposed will be the creation of an additional source of deer for persons using deer for educational display purposes.
Under the provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses and micro-businesses. The department has determined that there will be no direct economic effect on small or micro-businesses or persons required to comply as a result of the proposed rules. The rules would not compel or mandate any action on the part of any entity, including small businesses or microbusinesses. In particular, the proposed rule would not add new reporting or recordkeeping requirements; require any new professional expertise, capital costs, or costs for modification of existing processes or procedures; lead to loss of sales or profits; change market competition; or increase taxes or fees. Accordingly, the department has not prepared a regulatory flexibility analysis under Government Code, Chapter 2006.
The department has not drafted a local employment impact statement under the Administrative Procedures Act, §2001.022, as the agency has determined that the rules as proposed will not impact local economies.
The department has determined that Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rules.
The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rules.
Comments on the proposed rules may be submitted to Clayton Wolf, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4568 (e-mail: clayton.wolf@tpwd.state.tx.us).
The rules are proposed under the authority of Parks and Wildlife Code, §43.357, which authorizes the commission to make regulations governing procedures and requirements for the purchase, transfer, sale, or shipment of breeder deer.
The proposed rule affects Parks and Wildlife Code, Chapter 43.
§65.610.Transfer of Deer.
(a) (No change.)
(b) Transfer by deer breeder. The holder of a valid deer breeder's permit may transfer legally possessed breeder deer:
(1) - (4) (No change.)
(5) to an individual for the purpose of obtaining medical
attention, provided the breeder deer do not leave this state; [
and]
(6) to a facility authorized under Subchapter D of this chapter (relating to Deer Management Permit) to receive buck deer on a temporary basis; or
(7) to the holder of a valid educational display or zoological permit. A transfer under this paragraph is final; breeder deer donated to the holder of an educational display or zoological permit may not be returned to any breeder facility.
(c) - (f) (No change.)
§65.612.Disposition of Deer.
(a) Upon termination, suspension, or revocation of a deer breeder's permit, the permittee shall dispose of all breeder deer covered by the permit.
(b) Breeder deer may be disposed of by:
(1) sale or donation to another deer breeder; [,]
(2) [by] sale or donation to
a holder of a zoological permit; [,]
(3) sale or donation to the holder of an educational display permit; or
(4) [by] release to the wild
as specifically authorized by the department.
(c) Breeder deer still in possession 30 days following termination, revocation, or suspension of a permit shall be disposed of at the discretion of the department.
(d) Disposition of all breeder deer shall be at the expense of the permittee.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on February 9, 2009.
TRD-200900489
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Earliest possible date of adoption: March 22, 2009
For further information, please call: (512) 389-4775