Proposed Rules Title 31

TITLE 31. NATURAL RESOURCES AND CONSERVATION

Part 2. TEXAS PARKS AND WILDLIFE DEPARTMENT

Chapter 53. FINANCE

Subchapter A. FEES

Division 1. LICENSE, PERMIT, AND BOAT AND MOTOR FEES

31 TAC §53.14

The Texas Parks and Wildlife Department proposes an amendment to §53.14, concerning Deer Management and Removal Permits.

The proposed amendment affects the Deer Management Permit (DMP) and the Permit to Trap, Transport, and Transplant Game Animals and Game Birds (popularly referred to as the "Triple T" permit).

The portion of the proposed amendment affecting the Triple T permit (which includes the urban white-tailed deer removal permit) would increase the fee for a Triple T application from $180 to $750. Elsewhere in this issue, the department has proposed an amendment to the Triple T rules that would require the payment of the prescribed Triple-T fee on a per-release site basis. In Fiscal Year 2006, the department issued 75 Triple T permits authorizing trapping activities at 63 sites and release activities at 163 sites. The department incurred costs of approximately $120,830 to process applications, perform site inspections, observe and enforce compliance, and prosecute violations of Triple T regulations; however, revenue from permit fees during the same time period was $13,500.

Under Parks and Wildlife Code, §43.061, the state may not incur any expense for the trapping, transporting, and transplanting of game animals and game birds under a permit issued under Parks and Wildlife Code, Chapter 43, Subchapter E, which is the authorizing statute for the Triple T permit. Therefore, the department must increase the fee in order to recoup the expense to the state. The proposed fee of $750 was obtained by dividing the cost of program administration and enforcement by the number of release sites.

The portion of the proposed amendment affecting the DMP would provide a consistent application process for new applications and renewals. The department has determined that it does not recover the cost of administering the DMP program under current fee amounts. Under current rule, the fee for the initial issuance of a DMP is $1,000 and the permit may be renewed annually. The current fee for a renewal is $600. Under Parks and Wildlife Code, §43.603, the commission may establish a fee for new or renewed DMPs, but the fee for a DMP may not exceed $1,000.

The department has determined that it does not recover the cost of administering the DMP program. In Fiscal Year 2006, the department issued 38 new DMPs and renewed 40 DMPs, incurring expenses of approximately $92,000 to process applications, perform site and facility inspections, observe and enforce compliance, and prosecute violations of DMP regulations; however, revenue from permit fees was $62,000. Data from FY 07 is incomplete, but 58 new DMPs have been issued and 46 have been renewed, an increase of 67%. It is logical to assume that administrative and enforcement costs have also increased and continue to be greater than revenue. In fact, FY 07 revenue of $85,000 is still below the expenses from the previous year, when there were 67% fewer permits.

Therefore, the department has determined that an increase in the renewal fee is necessary in order to recoup administrative and enforcement expenses to the greatest extent possible.

Mr. Robert Macdonald, Regulations Coordinator, has determined that, for each of the first five years that the rule as proposed is in effect, there will be fiscal implications to state government as a result of enforcing or administering the rule. The department estimates that there will be an increase in revenue to the department of approximately $41,600 per year as a result of the administering and enforcing the proposed rule with respect to DMPs. This figure was derived by taking the total number of active DMP permits (104) and calculating the difference between the revenue obtained from the current renewal fee ($600) and the proposed fee for annual application ($1,000). This calculation assumes that every person currently holding a DMP will choose to continue engaging in permitted activities. The calculation does not address new permits, since the department has no method of determining how many persons will participate in the program in the future.

The department also estimates that there will be additional revenue of approximately $112,500 per year as a result of enforcing or administering the proposed rule with respect to Triple T permits. This estimate was obtained by taking the average number of release sites authorized over each of the last three years (150) and multiplying it by the proposed fee ($750).

There will be no fiscal implications for other units of state or local governments as a result of administering or enforcing the rule as proposed.

Mr. Macdonald 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 greater efficiency in program administration and clearer and more user-friendly regulations.

There may be an adverse economic effect on small businesses, microbusinesses, and persons required to comply with the amendment as proposed. Government Code, Chapter 2006, defines small and micro-businesses as entities "formed for the purpose of making a profit." Tex. Gov't Code §2006.00(1)(A) - (2)(A). DMP and Triple T permits are issued to individuals, rather than to entities. Some, but not all, individuals participate in activities covered by a DMP or a Triple T permit in an effort to enhance profit generating hunting operations. To the extent that such operations are considered small or microbusinesses, the following impact analysis is provided.

Each current DMP permittee will incur a direct additional cost of $400 per year to continue the activities authorized by a DMP. Some of the businesses affected will be small or microbusinesses; however, there is no difference in the cost of compliance between the largest business affected by the rule and the smallest business affected by the rule. Similarly, there is no disproportionate economic impact on small or microbusinesses. TPWD is not aware of a performance-oriented, voluntary, or market-based approach that would substitute for the proposed amendment. More specifically, if a business employed one employee, the cost of compliance would be $400 per employee per year. If a business employed 20 employees, the cost of compliance would be $20 per employee per year. If a business employed 100 employees, the cost of compliance would be $4 per employee per year.

Each Triple T permittee will incur a direct additional cost of $570 per permit if the permit lists only one release site. Some of the businesses affected will be small or microbusinesses. If a business employed one employee, the cost of compliance would be $570 per employee. If a business employed 20 employees, the cost of compliance would be $28.50 per employee. If a business employed 100 employees, the cost of compliance would be $5.70 per employee.

However, there is no difference in the cost of compliance between the largest business affected by the rule and the smallest business affected by the rule. Similarly, there is no disproportionate economic impact on small or microbusinesses. TPWD is not aware of a performance-oriented, voluntary, or market-based approach that would substitute for the proposed amendment.

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 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).

The amendment is proposed under the authority of Parks and Wildlife Code, Chapter 43, Subchapter R, which authorizes the commission to issue a permit for the management of the wild white-tailed deer population on acreage enclosed by a fence capable of retaining white-tailed deer, and requires the commission to set a fee for the issuance or renewal of a permit in an amount not to exceed $1,000, and Chapter 43, Subchapter E, which authorizes the commission to issue permits to trap, transport, and transplant game animals and game birds, to issue permits for urban white-tailed deer removal, and to establish a fee for those permits.

The proposed amendment affects Parks and Wildlife Code, Chapter 43.

§53.14.Deer Management and Removal Permits.

(a) (No change.)

(b) Trap, transport and transplant permit application fees:

(1) nonrefundable application processing fee-- $750 per release site [ ~~$180~~ ]; 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.

(1) nonrefundable application processing fee-- $750 [ ~~$180~~ ]; and

(d) Deer management permit and renewal--$1,000. [ : ]

~~[(1) deer management permit--$1,000; and]~~

~~[(2) renewal of deer management permit--$600.]~~

(e) (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 April 9, 2007.

TRD-200701314

Ann Bright

General Counsel

Texas Parks and Wildlife Department

Earliest possible date of adoption: May 20, 2007

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

Chapter 59. PARKS

Subchapter A. PARK ENTRANCE AND PARK USER FEES

31 TAC §59.3

The Texas Parks and Wildlife Department (department) proposes an amendment to §59.3, concerning Activity and Facility Use Fees.

The proposed amendment would incorporate special access permit fees as part of state park regulations. In another rulemaking published elsewhere in this issue of the Texas Register, the department proposes to create a special access permit valid for access to state parks for persons selected to participate in public hunting activities. The department wishes to differentiate between special permits issued for use on state parks and special permits issued for use on other units of public hunting lands such as wildlife management areas. The proposed amendment to §59.3 is necessary in order to comply with federal requirements that oblige the department to keep funds from the sale of permits for access to state parks separate from funds from the sale of permits for access to wildlife management areas. The proposed amendment would acknowledge that distinction by rule. The effect of the proposed amendment would be nonsubstantive; it does not create a new fee and does not impose the existing fee on additional users.

Mr. Robert Macdonald, Regulations Coordinator, has determined that, for each of the first five years that the rule as proposed is in effect, there will be no fiscal implications to state or local government as a result of enforcing or administering the rule.

There will be no adverse economic effect on small businesses, microbusinesses, or persons required to comply with the amendment as proposed.

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 Vickie Fite, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4775 (e-mail: vickie.fite@tpwd.state.tx.us).

The amendment is proposed under the authority of Parks and Wildlife Code, §11.027, which authorizes the commission to commission by rule 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, and §13.015, which authorizes the department to charge and collect park user fees for park services, and requires the commission to set the fees.

The proposed amendment affects Parks and Wildlife Code, Chapters 11 and 13.

§59.3.Activity and Facility Use Fees.

(a) - (c) (No change.)

(d) Special access permits. Special access permits allow entry to state parks and are issued to persons selected for public hunting privileges in state parks.

(1) standard period--$75;

(2) extended period--$125.

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 April 9, 2007.

TRD-200701315

Ann Bright

General Counsel

Texas Parks and Wildlife Department

Earliest possible date of adoption: May 20, 2007

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

Chapter 65. WILDLIFE

Subchapter A. STATEWIDE HUNTING AND FISHING PROCLAMATION

Division 3. SEASONS AND BAG LIMITS--FISHING PROVISIONS

31 TAC §65.83

The Texas Parks and Wildlife Department proposes new §65.83, concerning Delegation of Authority.

Federal authorities are responsible for regulating the take of all species of marine life subject to the Fishery Conservation and Management Act of 1976 (16 U.S.C.A. §1801 et seq.) in the Exclusive Economic Zone (EEZ). The EEZ extends from the seaward boundary of state waters (nine nautical miles) out to 200 nautical miles. When rules are changed in the EEZ, Texas often changes the rules governing the take of those same species in state waters to create consistency between federal and state regulations, to enhance enforcement of the rules (i.e., state and federal), and to minimize public confusion over what may be legally landed in Texas from the Gulf of Mexico.

Parks and Wildlife Code, §79.002, authorizes the Texas Parks and Wildlife Commission (the Commission) to delegate to the executive director its responsibility and authority to make rules as necessary to modify state coastal fisheries regulations in order to provide for consistency with federal regulations in the exclusive economic zone. The proposed new rule would make that delegation.

The proposed new rule would allow Texas regulations governing coastal fishing to be brought into conformity with federal regulations more rapidly than through the normal rulemaking process. Normally, the Commission meets no more than five times per year, and amends the coastal fisheries portion of the Statewide Hunting and Fishing Proclamation once per year. This normal process of amending coastal fisheries rules takes 60 days or longer. Given the normal scheduling of Commission meetings, this can take as long as 120 days. Delegating the rulemaking process to the Executive Director will allow Texas rules to be brought into conformity with federal rules within 60 days of adoption of the federal rule, or less time if necessary. Shortening the time period during which federal and Texas rules are inconsistent is expected to enhance species conservation, minimize confusion within the fishing community, and improve enforcement.

Robin Riechers, Director of Science and Policy, has determined that, for each of the first five years the rule as proposed is in effect, there will be no fiscal implications to state or local governments as a result of enforcing or administering the rule.

Mr. Riechers 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 continued ability of the department to discharge its statutory duty to protect and manage the coastal fisheries resources of the state.

The rule will not result in economic costs to businesses, microbusinesses, or persons required to comply with the rule.

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 Jerry L. Cooke, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4492 (e-mail: jerry.cooke@tpwd.state.tx.us).

The new section is proposed under Parks and Wildlife Code, §79.002, which provides the Commission the authority to delegate to the executive director its responsibility and authority for making rules as necessary to modify state coastal fisheries regulations in order to provide for consistency with federal regulations in the exclusive economic zone. Responsibility for adopting rules covering taking, attempting to take, possession, transportation, purchase, and sale of aquatic resources in the salt waters of Texas is set forth in Parks and Wildlife Code, Chapters 61, 66, 67, 68, 76, 77, and 78.

The amendment affects Parks and Wildlife Code, Chapters 61, 66, 67, 68, 76, 77, and 78.

§65.83.Delegation of Authority.

The executive director may, after notifying the Chairman of the Commission, adopt, repeal, or modify state coastal fisheries regulations in order to provide for consistency with federal regulations in the exclusive economic zone.

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 April 5, 2007.

TRD-200701306

Ann Bright

General Counsel

Texas Parks and Wildlife Department

Earliest possible date of adoption: May 20, 2007

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

Subchapter C. PERMITS FOR TRAPPING, TRANSPORTING, AND TRANSPLANTING GAME ANIMALS AND GAME BIRDS

31 TAC §65.107

The Texas Parks and Wildlife Department (department) proposes an amendment to §65.107, concerning Permit Application and Processing.

The proposed amendment would require an applicant to pay a fee for each release site named on a single Permit to Trap, Transport, and Transplant Game Animals and Game Birds (popularly referred to as "Triple T" permits) and alter the composition of the review panel provided for by subsection (b). The proposed amendment also corrects the title of one of the permits in subsection (a)(2) inserting the word "deer."

Under current §65.107(a), an applicant may specify multiple trap and release sites on a single application for a Triple T permit. The department has determined that the current method of permit administration is not cost effective. In Fiscal Year 2006, the department issued 75 Triple T permits authorizing trapping activities at 63 sites and release activities at 163 sites. The department incurred costs of approximately $120,830 to process applications, perform site inspections, observe and enforce compliance, and prosecute violations of Triple T regulations; however, revenue from permit fees during the same time period was $13,500.

Under Parks and Wildlife Code, §43.061, the state may not incur any expense for the trapping, transporting, and transplanting of game animals and game birds under a Triple T permit. Therefore, the department must increase the fee in order to recoup the expense to the state. The department has proposed the actual fee increase in another proposed rulemaking published elsewhere in this issue, although a discussion of the fee is included in this preamble as a courtesy.

Current §65.107(b) provides that an applicant for a permit may request a review of an agency decision to deny or delay permit issuance. The review panel is composed of agency managers. The proposed amendment would add the Deputy Director of Operations (or his or her designee) to the review panel and remove "the Regional Director with jurisdiction" and the "White-tailed Deer or Mule Deer program leader." The change is necessary to include senior management in any situation calling for a review and provide consistency with other review panels associated with deer permits.

Mr. Robert Macdonald, Regulations Coordinator, has determined that, for each of the first five years that the rule as proposed is in effect, there will be fiscal implications to state government as a result of enforcing or administering the rule. Note: This fiscal note also appears as part of the proposed amendment to §53.14, which is published elsewhere in this issue. The department reproduces it here as a courtesy to the regulated community. The department also estimates that there will be additional revenue of approximately $112,500 per year as a result of enforcing or administering the proposed rule with respect to Triple T permits. This estimate was obtained by taking the average number of release sites authorized over each of the last three years (150) and multiplying it by the proposed fee ($750).

There will be no fiscal implications for other units of state or local governments as a result of administering or enforcing the rule as proposed.

There may be an adverse economic effect on small businesses, microbusinesses, and persons required to comply with the amendment as proposed. Government Code, Chapter 2006, defines small and microbusinesses as entities "formed for the purpose of making a profit." Tex. Gov't Code, §2006.00(1)(A) - (2)(A). DMP and Triple T permits are issued to individuals, rather than to entities. Some, but not all, individuals participate in activities covered by a DMP or a Triple T permit in an effort to enhance profit generating hunting operations. To the extent that such operations are considered small or microbusinesses, the following impact analysis is provided.

Each Triple T permittee will incur a direct additional cost of $570 per permit if the permittee lists only one release site. Some of the businesses affected will be small or microbusinesses. If a business employed one employee, the cost of compliance would be $570 per employee. If a business employed 20 employees, the cost of compliance would be $28.50 per employee. If a business employed 100 employees, the cost of compliance would be $5.70 per employee.

In addition, the proposed rule requires an additional cost of $750 for each release site listed on the permit. Therefore, for each additional release site, the cost of compliance will increase by $750 per employee for a business that employs only one employee, by $37.50 per employee for a business that employs 20 employees, and by $7.50 per employee for a business that employs 100 employees. However, there is no difference in the cost of compliance between the largest business affected by the rule and the smallest business affected by the rule. Similarly, there is no disproportionate economic impact on small or microbusinesses. TPWD is not aware of a performance-oriented, voluntary, or market-based approach that would substitute for the proposed amendment.

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 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 amendments are proposed under the authority of Parks and Wildlife Code, §43.061, which requires the commission shall adopt rules for the trapping, transporting, and transplanting of game animals and game birds and authorizes the commission to set fees for review of permit applications or other department actions necessary to implement the provisions of §43.601.

The proposed amendments affect Parks and Wildlife Code, Chapter 43.

§65.107.Permit Application and Processing.

(a) Permit applications.

(1) Application for permits authorized under this subchapter shall be on a form prescribed by the department.

(2) A single application for a Trap, Transport, and Transplant Permit may specify multiple trap and/or release sites; however, the permit fee prescribed by Chapter 53 of this title shall be assessed on a per-release site basis.

(3) A single application for [ or ] an Urban White-tailed Deer Removal Permit may specify multiple trap and/or release sites. A single application for a Trap, Transport, and Process Surplus White-tailed Deer Permit may specify multiple trap sites and/or processing facilities.

(4) [ ~~(3)~~ ] A single application may not specify multiple species of game birds and/or game animals.

(5) [ ~~(4)~~ ] The application must be signed by:

(A) the applicant;

(B) the landowner or agent of the trap site(s); and

(6) [ ~~(5)~~ ] The applicant may designate certain persons and/or companies that will be involved in the permitted activities, including direct handling, transport and release of game animals or game birds. In the absence of the permittee, at least one of the named persons and/or companies shall be present during the permitted activities.

(b) Review. An applicant for a permit under this subchapter may request a review of a decision of the department to deny issuance or delay processing of a permit.

(1) - (2) (No change.)

(3) The request for review shall be presented to a review panel. The review panel shall consist of the following:

(A) the Deputy Executive Director for Operations, or his or her designee;

(B) [ ~~(A)~~ ] the Director of the Wildlife Division; and

~~[(B) the Regional Director and District Leader with jurisdiction;]~~

~~[(D) the White-tailed Deer or Mule Deer program leader, as appropriate.]~~

(4) - (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 April 9, 2007.

TRD-200701316

Ann Bright

General Counsel

Texas Parks and Wildlife Department

Earliest possible date of adoption: May 20, 2007

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

Subchapter D. DEER MANAGEMENT PERMIT (DMP)

31 TAC §§65.131, 65.134 - 65.136

The Texas Parks and Wildlife Department (department) proposes amendments to §65.131 and §§65.134 - 65.136, concerning Deer Management Permits (DMP).

The proposed amendment to §65.131, concerning Deer Management Permit (DMP), would eliminate current subsection (d) and alter the composition of the review panel provided for by current subsection (e). Current subsection (d) provides that changes to an existing deer management plan are to be treated as a new application. The subsection is being eliminated because another facet of this rulemaking proposes to provide a consistent application process and fee for new applications and renewals. Therefore, subsection (d) is no longer necessary.

Current §65.131(e) provides that an applicant for a permit may request a review of an agency decision to deny or delay permit issuance. The review panel is composed of agency managers. The proposed amendment would add the Deputy Director of Operations (or his or her designee) to the review panel and remove "the Regional Director with jurisdiction" and the "White-tailed Deer or Mule Deer program leader." The change is necessary to include senior management in any situation calling for a review and provide consistency with other review panels associated with deer permits.

The proposed amendment to §65.134, concerning Facility Standards, would clarify that the maximum number of bucks and does that may be kept in a DMP pen does not include fawns born in the pen during the permit year. The provisions of current subsection (c) allow no more than one buck and 20 does to be kept in a pen between September 1 and January 31. Those dates were selected because other provisions of the subchapter prohibit the addition of deer between March 2 and January 31 and require that all deer in a DMP be released by August 31. In essence, the current regulation specifies the maximum number of deer that may be in a DMP pen during the time it is lawful to confine deer in a DMP pen. The proposed amendment simplifies and clarifies the provisions of the subsection by stating declaratively that a DMP pen may contain no more than one buck and 20 does at any time, exclusive of fawns born in the pen during the permit year.

The proposed amendment to §65.135, concerning Detention and Marking of Deer, would lengthen the period of time when it is unlawful to trap deer from the wild under a DMP and eliminate the requirement that deer within a DMP be ear-tagged.

Under current §65.135(a), deer may not be trapped between March 2 and August 31. The proposed amendment would extend the prohibition to the period from December 15 to August 31. The intent of the rule is to prevent the trapping of pregnant does, since the purpose of the subchapter is to authorize the trapping of wild does for breeding purposes. Department data indicate that by December 15 there is a high probability that pregnant does will be trapped. The proposed amendment is necessary to ensure that the intent and integrity of the program is maintained.

Under current §65.135(b), adult deer within a DMP facility must be ear-tagged. The department has determined that tagging is not necessary and has little value to the agency. Therefore, the provision is being eliminated. A DMP holder is not prohibited from marking deer that are legally detained under a permit. The proposed amendment is necessary to simplify the rules.

The proposed amendment to §65.136, concerning Release, would reduce the minimum footage of fencing that must be removed during release operations, allow multiple openings of at least 10 feet, and shorten the time that containment features must be removed in order to effect release of DMP deer. The provisions of the current rule allow for the use of release techniques that would otherwise be prohibited, provided they are approved by the department on a case-by-case basis. Since the inception of the permit in 1998, the department has approved numerous exceptions to the provisions of the section. In reviewing the exceptions to the rule, the department has determined that more flexible standards can be safely implemented. The proposed amendment also would eliminate the provision for case-by-case approval of release techniques, as the department does not intend to approve any release techniques other than what is allowed by rule. The department has also determined that the current requirement that fences remain down for a period of 60 days may be safely shortened to 30 days. The proposed amendment is necessary to allow for the liberation of deer after fawning season but with time to apply for a new permit in time to be ready for the trapping season, which begins September 1. The proposed amendment would also clarify that the provisions mandating the removal of supplemental food and water apply in the DMP pens at the time deer are released. The current wording of the provision does not make that clear. The proposed amendment also clarifies that deer must be released in the pasture where they were originally captured, except for deer that the department has authorized for release elsewhere under a permit to trap, transport, and transplant game animals and game birds. The department wishes to make it clear that deer may not be released into a small enclosure or trap but must be released back into the same pasture or acreage that the deer management plan specified for the capture of the deer.

There will be no adverse economic effects on small businesses, microbusinesses, or persons required to comply with the amendments as proposed.

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 amendments are proposed under the authority of Parks and Wildlife Code, Chapter 43, Subchapter R, which authorizes the commission to issue a permit for the management of the wild white-tailed deer population on acreage enclosed by a fence capable of retaining white-tailed deer, subject to conditions established by the commission.

The proposed amendments affect Parks and Wildlife Code, Chapter 43.

§65.131.Deer Management Permit (DMP).

(a) - (c) (No change.)

[(d) Changes to an approved Deer Management Plan shall be considered as a new application, unless the changes are necessary to comply with regulatory or statutory requirements implemented after the deer management plan was approved.]

(d) [ ~~(e)~~ ] An applicant for a permit under this subchapter may request that a decision by the department to deny issuance or delay processing of a permit or permit renewal be reviewed.

(1) An applicant seeking review of a decision of the department under this subsection shall contact the department within 10 working days of being notified by the department of permit denial.

(2) The department shall conduct the review and notify the applicant of the results within 10 working days of receiving a request for a review.

(3) The request for review shall be presented to a review panel. The review panel shall consist of the following:

(A) the Deputy Executive Director for Operations (or his or her designee);

(B) [ ~~(A)~~ ] the Director of the Wildlife Division; and

~~[(B) the Regional Director with jurisdiction;]~~

~~[(D) the White-tailed Deer Program Leader.]~~

(4) The decision of the review panel is final.

(5) The department shall report on an annual basis to the White-tailed Deer Advisory Committee the number and disposition of all reviews under this subsection.

§65.134.Facility Standards.

(a) - (b) (No change.)

(c) Except for fawns born in a DMP facility during the current permit year, [ ~~During the period from September 1 through January 31,~~ ] no pen at any time shall contain more than:

(1) one buck deer; and/or

(2) 20 doe deer.

§65.135.Detention [ ~~and Marking~~ ] of Deer.

[ ~~(a)~~ ] No trapping of deer under a DMP may take place between December 15 [ ~~March 2~~ ] and August 31 of any year.

[(b) Each deer detained under a DMP shall be marked by securely attaching a tag constructed of durable material to one ear. The tag must be of a size and color that is clearly visible from a distance of 50 feet. For the purposes of this subsection, 'durable material' means material that is not likely to disintegrate, decompose, or be easily dislodged or removed.]

§65.136.Release.

(a) Release of deer shall be effected by removing, for a total of at least 20 feet, [ ~~for a continuous distance of no less than 100 yards,~~ ] those components of a pen that serve to maintain deer in a state of detention within the pen ; however, no opening shall be less than 10 feet in width . Such components shall be removed for no fewer than 30 [ 60 ] consecutive days. [ ~~The provisions of this subsection may be altered, provided the specific details of the release technique are included in the applicant's deer management plan and are approved by the department.~~ ]

(b) At any time that components of a pen are removed or manipulated for the purposes of releasing wild deer, all [ ~~All~~ ] externally provided food and water (i.e., food or water that does not naturally occur at the site) shall be removed or made inaccessible to deer for no fewer than 30 [ 60 ] days.

(d) Except for deer authorized by the department for release elsewhere under a permit to trap, transport, and transplant game animals and game birds, all deer released from a DMP pen shall be released directly into the pasture where they were captured for the purposes of activities under this subchapter.

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 April 9, 2007.

TRD-200701317

Ann Bright

General Counsel

Texas Parks and Wildlife Department

Earliest possible date of adoption: May 20, 2007

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

Subchapter H. PUBLIC LANDS PROCLAMATION

31 TAC §§65.191, 65.193, 65.201

The Texas Parks and Wildlife Department (department) proposes amendments to §§65.191, 65.193, and 65.201, concerning the Public Lands Proclamation.

The proposed amendment to §65.191, concerning Definitions, would add a definition for "special access permit." The special access permit will authorize access to a specific state park or part of a state park on a specific date for persons selected for public hunting privileges. The department wishes to differentiate between special permits issued for use on state parks and special permits issued for use on other units of public hunting lands, such as wildlife management areas. The proposed amendment is necessary in order to comply with federal requirements that oblige the department to keep funds from the sale of permits for access to state parks separate from funds from the sale of permits for access to wildlife management areas. The proposed amendment would acknowledge that distinction by rule. The effect of the proposed amendment would be nonsubstantive; it does not create a new fee and does not impose the existing fee on additional users.

The proposed amendment to §65.193, concerning Access Permit Required and Fees, would conform the language of the section as necessary to reflect the applicability of the section's provisions to the special access permit. The amendment is necessary for the same reasons stated in the discussion of the proposed amendment to §65.191 and will also be nonsubstantive in nature.

The proposed amendment to §65.201, concerning Motor Vehicles, would exempt disabled persons and persons assisting disabled persons from the provisions of 31 TAC Chapter 55, Subchapter J, which requires an off-highway vehicle (OHV) operated on public land to be affixed with a decal issued by the department for an $8 fee. The OHV fee was established to fund the purchase, development, and maintenance of OHV trails as part of a program administered by the department. The department's intent with respect to the funding of the OHV program is to rely on true off-road vehicle enthusiasts to fund the recreational trails created for that purpose. The department has determined that the use of mobility-enhancing conveyances by disabled persons participating in activities on public hunting lands is not consistent with the intent of Parks and Wildlife Code, Chapter 29 and should not be subject to the OHV fee.

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 government as a result of enforcing or administering the rules relating to special access permits. There could be an extremely minimal fiscal impact on the department as a result of waiving the decal requirement for disabled persons using OHVs on public hunting lands, but only with respect to OHVs used solely for public hunting purposes, as their use on any public land other than department land would still require the purchase of an OHV decal. The department estimates that the potential loss of revenue to the department will be less than $100. There will be no fiscal implications for other units of state or local government.

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 regulations that clearly delineate the function of various permits used in the department's public hunting programs, and the enhanced ability of disabled persons to use OHVs to access public hunting lands.

There will be no adverse economic effects on small businesses, microbusinesses, or persons required to comply with the amendments as proposed.

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 rule may be submitted to 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).

The amendments are proposed under Parks and Wildlife Code, Chapter 12, Subchapter A, which provides that a tract of land purchased primarily for a purpose authorized by the code may be used for any authorized function of the department if the commission determines that multiple use is the best utilization of the land's resources; §11.027, which authorizes the commission to commission by rule 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; §13.015, which authorizes the department to charge and collect park user fees for park services, and requires the commission to set the fees; §29.004, which authorizes the commission to exempt persons from the fee for an off-highway vehicle decal; and Chapter 81, Subchapter E, which provides the Parks and Wildlife Commission with authority to establish conditions for taking wildlife resources on wildlife management areas and public hunting lands.

The proposed amendments affect Parks and Wildlife Code, Chapters 11, 12, 13, 29, and 81.

§65.191.Definitions.

The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. All other words and terms shall have the meanings assigned in §65.3 of this title (relating to Statewide Hunting and Fishing Proclamation).

(1) Adult--A person 17 years of age or older.

(2) All terrain vehicle (ATV)--Any vehicle meeting the definition of an ATV under Transportation Code, §663.001.

(3) Annual Public Hunting (APH) Permit--A permit, valid from issuance date through the following August 31, which allows entry to designated public hunting lands at designated times and the taking of wildlife resources as designated.

(4) Application fee--A non-refundable fee that may be required to accompany and validate an individual's application for a special permit.

(5) Authorized supervising adult--A parent, legal guardian, or individual at least 18 years of age who assumes liability responsibility for a youth.

(6) Blind--Any structure assembled of man-made or natural materials for the purpose or having the effect of promoting concealment or increasing the field of vision of a person.

(7) Buckshot--Lead pellets ranging in size from .24-inch to .36-inch in diameter normally loaded in a shotgun (includes, but is not limited to 0 and 00 buckshot).

(8) Camping--The use of public hunting lands for overnight accommodation, which includes sleeping, the storage of unattended personal possessions, or the use of a motor vehicle as a lodging.

(9) Competitive hunting dog event (field trial)--A department-sanctioned contest in which the skills of hunting dogs are tested.

(10) Concurrent hunt--A hunt that maintains the same permit requirements, hunt dates, means and methods, or shooting hours or combinations thereof for more than one species of animal, as designated and subject to any special provisions.

(11) Consumptive user--A person who takes or attempts to take wildlife resources.

(12) Designated campsite--A designated area where camping and camping activities are authorized.

(13) Designated days--Specific days within an established season or period of time as designated by the executive director.

(14) Designated road--A constructed roadway indicated as being open to the public by either signs posted to that effect or by current maps and leaflets distributed at the area. Roads closed to the public may additionally be identified by on-site signing, barricades at entrances, or informational literature made available to the public. Designated roads do not include county or state roads or highways.

(15) Designated target practice area--An area designated by on-site signing or by order of the executive director within which the discharge of firearms for target practice is authorized.

(16) Designated units of the state park system--Specific units of the state park system approved by the commission for application of provisions of this subchapter.

(17) Disabled person--A person who possesses a placard, license plate, or other documentation issued to that person by the State of Texas under the provisions of Transportation Code, Chapter 681.

(18) General Season--A specified time period, or designated days within a specified time period, during which more than one means or methods (as designated) may be used to take designated species.

(19) Headwear--Garment or item of apparel worn on or about the head.

(20) Immediate supervision--Control of a youth by an authorized supervising adult issuing verbal instructions in a normal voice level.

(21) Lands within a desert bighorn sheep cooperative--An aggregation of lands for which the concerned landowners and the Texas Parks and Wildlife Department have agreed to coordinate efforts to restore, manage, and harvest desert bighorn sheep.

(22) Limited Public Use (LPU) Permit--A permit, valid from issuance date through the following August 31, which allows access to designated wildlife management areas and public hunting lands at the same times that access is provided by an APH permit.

(23) Limited use zone--An area designated by order of the executive director and/or by boundary signs on the area, within which public use is prohibited or restricted to specified activities.

(24) Loaded firearm--A firearm containing a live round of ammunition within the chamber and/or the magazine, or if muzzleloading, one which has a cap on the nipple or a priming charge in the pan.

(25) Motor vehicle--As defined by Transportation Code, Chapter 541.

(26) Off-road vehicle--An ATV, a utility vehicle, a vehicle that may not lawfully be operated on a public roadway, or any vehicle that is manufactured or adapted for off-road use.

(27) On-site registration--The requirement for public users to register at designated places upon entry to and exit from specified public hunting lands, but does not constitute a permit.

(28) Permit--Documentation authorizing specified access and public use privileges on public hunting lands.

(29) Predatory animals--Coyotes and bobcats.

(30) Preference point system--A method of special permit distribution in which the probability of selection is progressively enhanced by prior unsuccessful applications within a given hunt category by individuals or groups.

(31) Public hunting area--A portion of public hunting lands designated as being open to the activity of hunting, and may include all or only a portion of a certain unit of public hunting land.

(32) Public hunting compartment--A defined portion of a public hunting area to which hunters are assigned and authorized to perform public hunting activity.

(33) Public hunting lands--Lands identified in §65.190 of this title (relating to Application) or by order of the executive director on which provisions of this subchapter apply.

(34) Recreational use--Any use or activity other than hunting or fishing.

(35) Regular Permit--A permit issued on a first-come-first-served basis, on-site, at the time of the hunt that allows the taking of designated species of wildlife on the issuing area.

(36) Restricted area--All or portions of public hunting lands identified by boundary signs as being closed to public entry or use.

(37) Sanctuary--All or a portion of public hunting lands identified by boundary signs as being closed to the hunting of specified wildlife resources.

(38) Slug--A metallic object designed for being fired as a single projectile by discharge of a shotgun.

(39) Special Access Permit--A permit, issued pursuant to a selection procedure, that allows access to a specified unit of the state park system at a specified time.

(40) [ ~~(39)~~ ] Special Permit--A permit, issued pursuant to a selection procedure, which allows the taking of designated species of wildlife.

(41) [ ~~(40)~~ ] Special package hunt--A public hunt conducted for promotional or fund raising purposes and offering the selected applicant(s) a high quality experience with enhanced provisions for food, lodging, transportation, and guide services.

(42) [ ~~(41)~~ ] Tagging fee--A fee which may be assessed in addition to the special permit fee for the harvest of alligators for commercial sale or prior to the attempted harvest of desert bighorn sheep or designated exotic mammals.

(43) [ ~~(42)~~ ] Wildlife management area (WMA)--A unit of public hunting lands which is intensively managed for the conservation, enhancement, and public use of wildlife resources and supporting habitats.

(44) [ ~~(43)~~ ] Wildlife resources--Game animals, game birds, furbearing animals, alligators, marine mammals, frogs, fish, crayfish, other aquatic life, exotic animals, predatory animals, rabbits and hares, and other wild fauna.

(45) [ ~~(44)~~ ] Wounded exotic mammal--An exotic mammal leaving a blood trail.

(46) [ ~~(45)~~ ] Youth--A person less than 17 years of age.

§65.193.Access Permit Required and Fees.

(a) It is an offense for a person without a valid access permit to enter public hunting lands, except:

(1) on areas or for activities where no permit is required;

(2) persons who are authorized by, and acting in an official capacity for the department or the landowners of public hunting lands;

(3) persons participating in educational programs, management demonstrations, or other scheduled activities sponsored or sanctioned by the department with written approval;

(4) persons owning or leasing land within the boundaries of public hunting lands, while traveling directly to or from their property;

(5) for a non-hunting or non-fishing adult who is assisting a permitted disabled person; or

(6) for youth under the supervision of an authorized supervising adult possessing an APH permit or a LPU permit.

(b) Annual Public Hunting (APH) Permit and Limited Public Use (LPU) Permit.

(1) It is an offense for a person 17 years of age or older to enter public hunting lands or take or attempt to take wildlife resources on public hunting lands at times when an APH permit is required without possessing an APH permit or to fail to display the APH permit, upon request, to a department employee or other official authorized to enforce regulations on public hunting lands.

(2) A person possessing a LPU permit may enter public hunting lands at times that access is allowed under the APH permit, and is authorized to fish but may not hunt.

(3) Persons possessing an APH permit or an LPU permit may use public hunting lands to access adjacent public waters, and may fish in adjacent public waters from riverbanks on public hunting lands.

(4) The permits required under paragraphs (1) - (3) of this subsection are not required for:

(A) persons who enter on United States Forest Service lands designated as a public hunting area or any portion of Units 902 and 903 for any purpose other than hunting;

(B) persons who enter on U.S. Army Corps of Engineers lands (Aquilla, Cooper, Dam B, Granger, Pat Mayse, Ray Roberts, Somerville, and White Oak Creek WMAs) designated as public hunting lands for purposes other than hunting or equestrian use;

(D) persons who enter and hunt waterfowl within the Bayside Marsh Unit of Matagorda Island State Park and Wildlife Management Area; or

(E) persons who enter Zone C of the Guadalupe River Unit of the Guadalupe Delta Wildlife Management Area and do not hunt or fish.

(5) The permit required by paragraphs (1) - (3) of this subsection is not valid unless the signature of the holder appears on the permit.

(6) A person, by signature of the permit and by payment of a permit fee waives all liability towards the landowner (licensor) and Texas Parks and Wildlife Department (licensee).

(c) Regular Permit--A regular permit is issued on a first come-first served basis at the hunt area on the day of the scheduled hunt with the department reserving the right to limit the number of regular permits to be issued.

(d) Special Permit--A special permit is issued to an applicant selected in a drawing.

(e) Special Access Permit--A special access permit is issued to an applicant selected in a drawing.

(f) [ ~~(e)~~ ] Permits for hunting wildlife resources on public hunting lands shall be issued by the department to applicants by means of a fair method of distribution subject to limitations on the maximum number of permits to be issued.

(g) [ ~~(f)~~ ] The department may implement a system of issuing special permits or special access permits that gives preference to those applicants who have applied previously but were not selected to receive a permit.

(h) [ ~~(g)~~ ] Application fees.

(1) The department may charge a non-refundable fee, which may be required to accompany and validate an individual's application in a drawing for a special hunting permit or special access permit.

(2) The application fee for a special hunting permit or special access permit is waived for a person under 17 years of age; however, the youth must apply in conjunction with an authorized supervising adult to whom an application fee is assessed, except as provided in paragraphs (3) and (4) of this subsection.

(3) The application fee for a special permit or special access permit is waived for an adult who is making application to serve as a non-hunting authorized supervising adult for a youth in a youth-only drawn hunt category.

(4) Persons under 17 years of age may be disqualified from applying for special package hunts or may be assessed the application fee.

(5) The application fee for a special permit or special access permit is waived for on-site applications made under standby procedures at the time of a hunt.

(6) Incomplete or incorrectly completed applications will be disqualified.

(i) [ ~~(h)~~ ] Legal animals to be taken by special or regular permit shall be stipulated on the permit.

(j) [ ~~(i)~~ ] Only one special , special access, or regular permit fee will be assessed in the event of concurrent hunts for multiple species, and the fee for the legal species having the most expensive permit will prevail.

(k) [ ~~(j)~~ ] Any applicable special , special access, or regular permit fees will be waived for youth under the supervision of a duly permitted authorized supervising adult.

(l) [ ~~(k)~~ ] Any applicable regular permit fees will be waived for persons possessing an APH permit.

(m) [ ~~(l)~~ ] Certain hunts may be conducted totally or in part by regular permit. It is an offense to fail to comply with established permit requirements specifying whether a regular permit is required of all participants or required only of adult participants who do not possess an APH permit.

(n) [ ~~(m)~~ ] Any applicable regular permit fees for authorized activities other than hunting or fishing will be waived for persons possessing an APH permit or an LPU permit.

(o) [ ~~(n)~~ ] An access permit applies only to the individual to whom the permit is issued, and neither the permit nor the rights granted thereunder are transferable to another person.

(p) [ ~~(o)~~ ] A person who fails to obey the conditions of a permit issued under this subchapter commits an offense.

§65.201.Motor Vehicles.

(a) It is an offense to not confine motor vehicle use to designated roads, except parking is permitted on the shoulder of or immediately adjacent to designated roads, and as provided for a disabled person or for a person directly assisting a disabled person.

(b) It is unlawful to hunt any wildlife resource from a motor vehicle, motor-driven land conveyance, or possess a loaded firearm in or on the vehicle, except as provided for a disabled person.

(c) A disabled person may possess a loaded firearm in or on a motor vehicle and may hunt from a motor vehicle except only paraplegics and single or double amputees of legs may hunt migratory birds from a motor vehicle, provided the motor vehicle is not in motion, the engine is not running, and the motor vehicle is not located on a designated road, designated vehicle parking area, or designated campground.

(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.

(e) The provisions of Chapter 59, Subchapter J of this title (relating to Off-Highway Vehicle Trail and Recreational Area Program) do not apply to a disabled person or a person assisting a disabled person who is participating in department-sanctioned activities on public hunting lands.

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 April 9, 2007.

TRD-200701318

Ann Bright

General Counsel

Texas Parks and Wildlife Department

Earliest possible date of adoption: May 20, 2007

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

Subchapter O. COMMERCIAL NONGAME PERMITS

31 TAC §§65.325, 65.327, 65.331

The Texas Parks and Wildlife Department (department or TPWD) proposes amendments to §§65.325, 65.327, and 65.331, concerning commercial nongame permits. Collectively, the proposed amendments would revamp the department's regulations governing the collection, purchase, and sale of nongame wildlife.

The proposed amendment to §65.325, concerning Applicability, would conform internal references, eliminate provisions that are either unnecessary or would be irrelevant under the rules as amended, and add a reference to other rules affecting the take and possession of diamondback terrapin.

The proposed amendment would eliminate §65.325(b)(3), which provides an exception by allowing teachers to collect and possess nongame wildlife without a permit for educational purposes. If adopted as proposed, the rules would still allow teachers to possess fewer than 25 specimens of nongame wildlife listed in proposed §65.331 and six or fewer specimens of species not listed in §65.331, provided they do not engage in commercial activity.

The proposed amendment would eliminate §65.325(b)(5), which provides an exception to the provisions of the subchapter for persons 16 years of age and under. The current rule was intended to prevent the criminalization of the possession of turtles, frogs, lizards, snakes, and other nongame wildlife that children typically enjoy capturing and retaining as pets. Under the rules as proposed, anyone will be able to possess fewer than 25 specimens of nongame wildlife listed in proposed §65.331 or six or fewer specimens of species not listed in §65.331, provided they do not engage in commercial activity.

The proposed amendment would eliminate §65.325(b)(6), which provides an exception for aquatic products possessed under a bait dealer's license. The department has determined that any person possessing more than 25 specimens of the species listed in §65.331 must have a permit under the subchapter. The amendment is to prevent the unregulated passage of nongame species into commercial trade.

The proposed amendment to §65.325 would add new subsections (c) and (d) to provide for persons who are in lawful possession of specimens that would become unlawful to possess following the effective date of the rules, if adopted as proposed. Subsection (c) would allow dealers until August 31, 2007 to divest themselves of such specimens held as commercial inventory. The department believes that the time period proposed is an adequate amount of time for dealers to sell, give away, or otherwise terminate possession of nongame wildlife that would be unlawful under the rules, if adopted as proposed. New subsection (d) would allow persons not engaged in commercial activities until July 1, 2008 to identify themselves to the department and document the species and numbers of nongame wildlife that otherwise would be unlawful to possess. The department acknowledges that hobbyists and other persons not engaged in commercial activities are in possession of heretofore lawfully held specimens for personal use. By setting the proposed time period for persons to document non-commercial collections, the department seeks to provide an opportunity to "grandfather" specimens, provided the owner does not engage in commercial activities.

The proposed amendment would alter §65.325(b)(2) and (3) to clarify that the provisions of those paragraphs apply only to species listed in §65.331, and provide an exception for diamondback terrapin, which are regulated under the Statewide Hunting and Fishing Proclamation.

The proposed amendment to §65.327, concerning Permit Required, would restructure the current provisions for clarity's sake, implement a non-commercial possession limit for species prohibited for use in commercial activities, and alter internal references to make the section consistent with other provisions of the proposed rulemaking.

The proposed amendment to §65.327(a) would remove provisions regarding possession limits so the subsection would consist solely of a statement of applicability, clearly establishing the subchapter as applying to all nongame wildlife except as provided. The proposed amendment would create a new §65.323(b), which would clearly state the conditions under which a permit under the subchapter would have to be obtained. The proposed amendment would add references to proposed subsections (c) and (d) to clearly indicate that permit privileges apply only to the wildlife listed in proposed §65.331. The proposed amendment also would establish a possession limit for personal use of six specimens per species of nongame wildlife prohibited for commercial use. The department has determined that six specimens per species is adequate for personal use and that a larger possession limit might offer a method for clandestine collection efforts for commercial purposes. For species listed in §65.331, the proposed amendment would allow persons to possess up to 25 specimens of wildlife of species listed in §65.331 without a permit, provided the person does not engage in a commercial activity. The department believes that possession of nongame wildlife in excess of 25 specimens is evidence that a person may likely be involved in commercial activities.

The proposed amendment to §65.331, concerning Affected Species, would retitle the section, replace the current list of species with a larger list of species to which the permitting and reporting requirements of the subchapter apply, stipulate than any species not listed in the section may not be used in a commercial activity, and provide for periodic review to determine if species should be added to or deleted from the list.

Under Parks and Wildlife Code, Chapter 67, nongame wildlife is defined as those species of vertebrate and invertebrate wildlife indigenous to Texas that are not classified as game animals, game birds, game fish, fur-bearing animals, endangered species, alligators, marine penaeid shrimp, or oysters. Chapter 67 also 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," and authorizes the department to issue permits for the taking, possession, propagation, transportation, sale, importation, or exportation of a nongame species of fish or wildlife if necessary to properly manage that species, and to charge a fee for such permits.

Nongame species comprise over 90 percent of the wildlife species that occur in Texas. Although the department is unable to monitor, survey, or conduct research on every nongame species in Texas, ongoing research is both conducted and monitored by the department. In 1999, the Parks and Wildlife Commission adopted the first regulations expressly intended to manage nongame wildlife in the state. The purpose of the program is to function as a 'canary in the coal mine' by tracking collection and sales activities involving specific species of nongame wildlife to provide the department with an early warning of possible declines in species populations. Under the current rule, all persons engaging in commercial activities involving affected species listed in the rule are required to possess a nongame permit or nongame dealer permit. A person with a nongame permit is authorized to sell species to a person with a nongame dealer permit, but may not sell species to the general public. However, a person with a nongame dealer permit is authorized to sell species to other permitted dealers and to the general public. In addition, persons with a nongame dealer permit are currently required to report sales and purchases to the department. The department uses the reported data to gauge potential impacts to native ecosystems and assist in determining if further regulatory protection is warranted. Based on data reported to and the information collected by the department, the department has determined that additional protective measures are needed for nongame species. Under current rule, no person is required to furnish commercial collection information on any species that is not on the list of affected species. Therefore, if a commercial market were to develop around a species not on the list of affected species, the department would not necessarily be able to detect it and develop additional regulatory measures to manage populations.

Nongame wildlife populations are problematic by their very nature, due to their numbers, diversity, and relative obscurity compared to game species. Historically, the most intensive management and research activities in the United States and Texas have been focused on game species popular with sport hunters, such as deer, turkey, pronghorn antelope, and others. However, game species represent a small fraction of the overall number of species in any ecosystem; in Texas, eight species of wildlife are designated by statute as game animals, whereas there are approximately 1,100 species of nongame vertebrate wildlife. Because the number of nongame species dwarfs the number of game species, nongame species, therefore, present a much more problematic management target within the traditional contexts. Management of game species typically involves intensive population, habitat, and harvest investigations. However, this type of management regime is unrealistic for the many nongame species that occur in the state.

The genesis of modern game species management came about as a result of unregulated commercial exploitation of wildlife resources. By the middle of the 20th century, many species of wildlife were in serious decline or in danger of extirpation in many parts of the United States and Texas as a result of unregulated, large-scale, commercial harvest. However, as a result of regulatory and management efforts, most game species are now thriving. The proposed nongame rules are intended to prevent depletion of nongame species.

The proposed amendments would replace the current list of affected species with a list of species lawful for use in commercial activities. All other species of nongame would be unlawful for use in commercial activities. In determining the species for which commercial activities would be permitted, the department consulted the existing scientific literature and with members of the regulated community, herpetological societies, and academic specialists, soliciting input from approximately 300 people. The goal of the consultations was to develop a broad consensus concerning those species of nongame wildlife thought to be able to withstand some level of collection activity, based on distribution and abundance, and the understanding that there would be some type of mandatory reporting concerning commercial activity.

Among the nongame species of concern, scientists have especially expressed concern about Chelonian species (turtles). Because of factors such as delayed sexual maturity, long lifespans, and low reproductive and survival rates, turtles are highly sensitive to population alterations, especially in older age classes. The presence of turtles in some areas should not be taken as evidence that populations in those areas are necessarily viable. Long lifespans, long generation times, and relatively slow growth may give the appearance that populations are stable, even after recruitment has ceased or populations reach levels below which recovery is possible. Impacts to turtle populations, such as the loss of important nesting areas or unsustainable mortality of adults, may remain undetectable until populations reach critical levels or become extirpated. Known limiting factors such as water pollution, road mortality, and habitat loss are important components in turtle declines; but commercial collecting efforts in the wild intensify the impact of those threats by removing large numbers of adults and older juveniles from wild populations. The collection for food markets has devastated turtle populations in Asia, the destination of the bulk of turtles commercially collected in Texas. It is axiomatic that shifting the Asian demand for turtles to North American populations could result in similar impacts if commercial activity is not regulated. Therefore, the department is proposing to prohibit the commercial collection of all turtle species in the state.

Scientific evidence indicates that lakes that have been commercially harvested have a significantly lower catch-per-unit-effort than did lakes that had not been commercially harvested, which indicates that commercial collection is efficient in reducing turtle populations locally. In the literature examined by the department (cited later in this preamble), there is a consistent voice of concern about the sustainability of current harvest levels of turtles and agreement that stronger regulation is necessary, at least until more is known about the impacts of collection on wild populations. Much of the concern of the scientific community stems from the relationship of collection to the natural history of turtles, particularly their delayed maturation and resulting low recruitment into adult class animals. The youngest onset of maturity reflected in the literature is in painted turtles, at 6 - 8 years for females. Other species tended to mature much later, with onset ages reported as high as 20 years.

Analysis of turtle population demographics consistently showed skewing to the adult age categories--the mature specimens most sought by commercial collectors for use as food product. This characteristic reflects the natural history of turtle species, their strong dependency on adult survivors to offset high mortality rates in eggs and juvenile categories. This characteristic alone makes it unlikely that populations can remain stable when high numbers of adults and older juveniles are steadily removed from a population.

As mentioned, the preferred targets of collectors are the adult and older juvenile age classes. Studies cite this (and other factors) in asserting that collection from the wild is a factor contributing to the decline of particular species, noting that, as a result, some states have banned commercial collection of wild-caught herpetological species either entirely or in part. A review of turtle regulations in the rest of the United States reveals that 38 states prohibit the take of at least one species of turtle, 34 states limit the commercial/and or recreational take of turtles in some fashion, and at least eight states prohibit the sale of native wildlife altogether.

Turtle collection in the United States and in Texas in particular is significant. The literature indicates that nationwide, more than 26 million wild-caught reptiles were exported from the U.S. between 1998 and 2002. In Texas, turtle exports increased to more than 100,000 individuals annually between 1996 and 2000. Based on the literature, the department may conclude that actual collection effort is significantly underreported by the regulated community and/or the current system does not completely account for collection effort. Some of these animals may represent re-exports (turtles captured outside of Texas but bought and resold within Texas for export). Current reporting does not allow for tracking re-exports but several species reported as exported from the state do not occur naturally within our borders; however, these were very minor numbers.

At the current time, other nongame populations in Texas are not generally believed to be as susceptible to over-collection as turtles by the scale of current commercial exploitation for the food or pet markets. However, after surveying academic experts and herpetological hobbyists and collectors, the department has determined that species that are habitat limited; sensitive to water quality degradation; or known to occur only in specific, limited geographical areas should not be subjected to commercial collection. Although there is a brisk trade in many species by hobbyists, much of the trade by hobbyists appears to involve captive-bred progeny. Therefore the department is proposing to allow commercial activities only for those species of nongame wildlife that are thought to be able to withstand some level of collection, which will be monitored by means of mandatory reporting requirements.

Literature Reviewed. In developing these proposed rules, the department reviewed and considered the following scientific publications:

Barko, Valerie A. and Jeffrey T. Briggler. 2006. Midland smooth softshell (Apalone mutica) and spiny softshell (Apalone spinifera) turtles in the Mississippi River; habitat associations, population structure and implications for conservation. Chelonian Conservation and Biology 5(2). 225 - 231.

Ceballos, Claudia P. and Lee A. Fitzgerald. 2004. The trade in native and exotic turtles in Texas. Wildlife Society Bulletin 32 (3). 881 - 892.

Congdon, Justin D. and Richard C. van Loben Sels. 1993. Relationships of reproductive traits and body size with attainment of sexual maturity and age in Blanding's turtles (Emydoidea blandingi). Journal of Evolutionary Biology 6(4). 547 - 557.

Cooley, Christopher R., Aaron O. Floyd, Amy Dolinger, Paul Tucker. 2003. Demography and diet of the painted turtle (Chrysemys picta) at high elevation sites in southwest Colorado. The Southwestern Naturalist 48(1). 47 - 53.

Gamble, Tony and Andrew M. Simons. 2004. Comparison of harvested and nonharvested painted turtle populations. Wildlife Society Bulletin. 32(4). 1269-1277.

Lindeman, Peter V. 2005. Aspects of the life history of the Texas Map Turtle (Graptemys versa). The American Midland Naturalist 153(2). 378 - 388.

Schlaepfer, Martin A.; Craig Hoover and C. Kenneth Dodd Jr. 2005. Challenges in evaluating the impact of the trade in amphibians and reptiles on wild populations. Bioscience 55(3). 256-264.

Whitfield-Gibbon, J.; David E. Scott; Travis J. Ryan; Kurt A. Buhlmann; Tracey D. Turberville; Brian S. Metts; Judith L. Greene; Tony Mills; Yale Leiden; Sean Poppy; Christopher T. Winne. 2000. The global decline of reptiles, déjà vu amphibians. Bioscience 50(8). 653-666.

Mr. Robert Macdonald, Regulations Coordinator, has determined that, for each of the first five years that the rules as proposed are in effect, there may be fiscal implications to state government as a result of enforcing or administering the rules as proposed. The proposed rules replace the current list of affected species for which permitting and reporting is required with a list of species authorized for commercial collection. As a result, there will be a number of species that will no longer be lawful to collect for commercial purposes, which could lead to a decline in permit issuance. The department surveyed each of the 331 persons licensed to collect and/or sell nongame wildlife and analyzed mandatory annual reports from dealers from the 2004-05 permit year (the last year for which complete data is available) to determine the species most sought by the regulated community. The department has determined that the persons most likely to discontinue to purchase permits will be those engaged in the collection of turtles, since the list of authorized species in proposed §65.331 contains those species in commercial demand other than turtles and those species will remain lawful for commercial collection. Of the 44 permitted dealers, there are 26 who collect, buy, and sell turtles. If those persons choose to stop purchasing permits, the department will incur a revenue loss of $1,740 (25 resident dealer's permits at $60 and one nonresident dealer's permit at $240). The department cannot determine how many persons with nongame permits are engaged in the collection of turtles, as those persons are not required to file reports with the department. Although the department cannot accurately estimate the potential revenue loss if persons exclusively engaged in turtle collection choose to stop purchasing permits, the worst-case scenario would be a revenue loss of $5,148 (286 nongame dealer's permits at $18).

There will be no fiscal implications for other units of state or local government.

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 protection and conservation of publicly-owned nongame wildlife resources and the protection of native ecosystems from harmful alterations caused by overharvest of nongame species, which will be beneficial to all other organisms in the complex ecological systems associated with nongame wildlife.

There will be adverse economic effects on small businesses, microbusinesses, or persons required to comply with the amendments as proposed. The rules as proposed would prohibit commercial activities involving any species of nongame wildlife other than the 84 species listed in proposed §65.331.

Based on mandatory annual reports required from dealers under current rule, there is no commercial activity involving species that would be prohibited from commercial use, other than the plains garter snake, the prairie ringneck snake, and 20 species of turtles. Department records indicate that one plains garter snake was sold in 2005 and no sales of prairie ringneck snakes. Therefore, there will be minimal adverse economic effects on small businesses or microbusinesses as a result of the prohibition of commercial activities involving species other than turtles. However, there will be a greater adverse economic effect on small businesses and microbusinesses engaged in commercial activities involving the 20 species of turtles.

Analysis of Survey Responses. The department sent surveys to all 331 persons currently holding a nongame or nongame dealer permit to determine the approximate annual income realized as a result of permitted activities. Response to the survey was voluntary. A total of 64 persons responded to the survey. Twenty-one respondents identified themselves as hobbyists who do not collect for sale. The remaining 43 respondents reported one person, an average of employee average investment of 639 hours per year in regulated activities, and an average income of $257.41 for Fiscal Year 2006. The hours spent in regulated activities represents hours spent engaging in commercial activities for all nongame species. The actual amount of labor devoted to commercial activities involving species that would be prohibited from use in commercial activities is probably much lower; however, the department will use the larger value in this analysis to ensure that all labor is captured for the purposes of this analysis.

Since it appears that there is very minimal commercial activity involving species other than turtles, this analysis will focus on the economic impact of the proposed rules on small and micro-businesses engaged in the turtle trade. The largest reported annual income reported in survey responses from commercial activities involving turtles was $3,000. The smallest was $50. Based on this data, the economic cost of compliance to the largest business affected by the rule would be $3,000; and the economic cost to the smallest business would be $50. More specifically, if a business employed one employee, the cost of compliance would be between $50 and $3,000 per employee. If a business employed 20 employees, the cost of compliance would be between $2.50 and $150 per employee. If a business employed 100 employees, the cost of compliance would be between $0.05 and $1.50 per employee. The proposed rules would affect the smallest and largest businesses equally, since the rule would prohibit the commercial collection of turtles by anyone.

Analysis of Permittee Reports. The department also analyzed the annual reports submitted by holders of nongame dealer's permits. Nongame dealers are required to report all purchases and sales of listed nongame wildlife. This report includes the purchase and sale of all species of turtles that the proposed rules would prohibit from use in commercial trade. The 26 nongame dealers who collected or purchased turtles reported an average of 731 turtles (all species) collected or purchased in the 2004-05 permit year. One dealer reported purchasing or collecting 18,716 turtles; one dealer reported purchasing or collecting 8,000 turtles; two dealers reported purchasing or collecting between 2,000 and 4,000 turtles; 12 dealers reported collecting or purchasing between 100 and 1,000 turtles; and nine dealers reported collecting or purchasing fewer than 100 turtles.

The permittees' annual reports do not include financial information from the sale of turtles. However, the largest reported commercial turtle dealer in Texas stated to the Regulations Committee of the Texas Parks and Wildlife Commission on April 4, 2007, that he paid $1 per pound for snapping turtles and softshell turtles and $0.20 per pound for all other species. Since a nongame permit holder dealer may only sell to a nongame dealer, the department can estimate the income received by nongame permit holders from the collection and sale of turtles to a nongame dealer.

The department does not require dealers to report the weight or approximate age of turtles collected or purchased by dealers. However, by assuming that most of the turtles collected and sold are mature individuals that are assumed to command higher prices, the department can use the average size of mature turtles to determine a rough approximation of the market value of turtles purchased for commercial trade and the profit realized from that commercial trade.

A mature common snapping turtle can weigh 30 pounds, making it worth $30. Mature softshell turtles and red-eared sliders can weigh 4 pounds, making them worth $4 per individual. Box turtle weights vary slightly by species, but are approximately one pound, making them worth $0.20 per individual.

Of the small or micro-businesses affected by the rule, the most significant impact would be felt by the largest nongame dealer. This largest nongame dealer reported collecting or purchasing 1,332 common snapping turtles; 994 western spiny softshell turtles; 16,331 red-eared sliders; and 59 box turtles in 2005. If these species were purchased at the prices stated above, the nongame permit holder would have earned $39,960 ($30 x 1,332) for common snapping turtles; $3,976 ($4 x 994) for western spiny softshell turtles; $65,324 ($4 x 16,331) for red-eared sliders; and $11.80 ($0.20 x 59) for box turtles in 2005, for a total cost of $109,271.80.

As previously noted, the department's rules do not require disclosure of financial information, so the actual sale price of the turtles purchased from the largest nongame dealer affected by the rule cannot be determined; but the department assumes that it must be larger than the price paid by the dealer to the nongame permit holder who collected turtles. Therefore, if the turtles were sold for double the amount paid by the dealer, the department estimates from dealer report that the dealer would have earned a profit of $109,271.80 in 2005 from the sale of these turtle species. Therefore, the economic cost of complying with the rules for largest dealer affected by the rule will be approximately $109,271.80. The cost of compliance for the smallest business affected by the rule will be less than $50, using the same method of estimation. More specifically, if a business employed 1 employee, the cost of compliance would be between $50 and $109,271.80 per employee. If a business employed 20 employees, the cost of compliance would be between $2.50 and $5,463.59 per employee. If a business employed 100 employees, the cost of compliance would be between $0.05 and $1,092.72 per employee. The proposed rules would affect the smallest and largest businesses equally, since the rule would prohibit the commercial collection of turtles by anyone.

This analysis also applies to the requirements of Government Code, §2001.022, with respect to impacts on local economies. The proposed rules, because they would apply statewide, would prohibit any person currently engaging in the commercial collection of turtles from continuing to do so.

Regulatory Impact Analysis

Although Government Code, §2001.0225, Regulatory Analysis of Major Environmental Rules, does not apply to the proposed rule, TPWD nonetheless provides the regulatory analysis, as follows. The benefit TPWD anticipates as a result of implementing the rule is protection of a valuable public resource.

Among the nongame species of concern, scientists have especially expressed concern about Chelonian species (turtles). Because of factors such as delayed sexual maturity, long lifespans, and low reproductive and survival rates, turtles are highly sensitive to population alterations, especially in older age classes. The presence of turtles in some areas should not be taken as evidence that populations in those areas are necessarily viable. Long lifespans, long generation times, and relatively slow growth may give the appearance that populations are stable, even after recruitment has ceased or populations reach levels below which recovery is possible. Impacts to turtle populations, such as the loss of important nesting areas or unsustainable mortality of adults, may remain undetectable until populations reach critical levels or become extirpated. Known limiting factors such as water pollution, road mortality, and habitat loss are important components in turtle declines; but commercial collecting efforts in the wild intensify the impact of those threats by removing large numbers of adults and older juveniles from wild populations. The collection for food markets has devastated turtle populations in Asia, the destination of the bulk of turtles commercially collected in Texas. It is axiomatic that shifting the Asian demand for turtles to North American populations result in similar impacts if commercial activity is not regulated. Therefore, the department is proposing to prohibit the commercial collection of all turtle species in the state.

Scientific evidence indicates that lakes that have been commercially harvested have a significantly lower catch-per-unit-effort than did lakes that had not been commercially harvested, which indicates that commercial collection is efficient in reducing turtle populations locally. In the literature examined by the department (cited earlier in this preamble), there is a consistent voice of concern about the sustainability of current harvest levels of turtles and agreement that stronger regulation are necessary, at least until more is known about the impacts of collection on wild populations. Much of the concern of the scientific community stems from the relationship of collection to the natural history of turtles, particularly their delayed maturation and resulting low recruitment into adult class animals. The youngest onset of maturity reflected in the literature is in painted turtles, at 6 - 8 years for females. Other species tended to mature much later, with onset ages reported as high as 20 years.

Analysis of turtle population demographics consistently showed skewing to the adult age categories--the mature specimens most sought by commercial collectors for use as food product. This characteristic reflects the natural history of turtle species and their strong dependency on adult survivors to offset high mortality rates in eggs and juvenile categories. This characteristic alone makes it unlikely that populations can remain stable when high numbers of adults and older juveniles are steadily removed from a population.

As mentioned, the preferred targets of collectors are the adult and older juvenile age classes. Studies cite this (and other factors) in asserting that collection from the wild is a factor contributing to the decline of particular species, noting that, as a result, some states have banned commercial collection of wild caught nongame species either entirely or in part. A review of turtle regulations in the rest of the United States reveals that 38 states prohibit the take of at least one species of turtle, 34 states limit the commercial/and or recreational take of turtles in some fashion, and at least eight states prohibit the sale of native wildlife altogether.

Since it appears that most of the commercial activity involving nongame species involves turtles, this analysis will focus on the economic impact of the proposed rules on small and micro-businesses engaged in the turtle trade. The largest reported annual income reported in survey responses from commercial activities involving turtles was $3,000. The smallest was $50. Based on this data, the economic cost of compliance to the largest business affected by the rule would be $3,000; and the economic cost to the smallest business would be $50. More specifically, if a business employed one employee, the cost of compliance would be between $50 and $3,000 per employee. If a business employed 20 employees, the cost of compliance would be between $2.50 and $150 per employee. If a business employed 100 employees, the cost of compliance would be between $0.05 and $1.50 per employee. The proposed rules would affect the smallest and largest businesses equally, since the rule would prohibit the commercial collection of turtles by anyone.

The department also analyzed the annual reports submitted by holders of nongame dealer's permits. Nongame dealers are required to report all purchases and sales of listed nongame wildlife. This report includes the purchase and sale of all species of turtles that the proposed rules would prohibit from use in commercial trade. The 26 nongame dealers who collected or purchased turtles reported an average of 731 turtles (all species) collected or purchased in the 2004-05 permit year. One dealer reported purchasing or collecting 18,716 turtles; one dealer reported purchasing or collecting 8,000 turtles; two dealers reported purchasing or collecting between 2,000 and 4,000 turtles; 12 dealers reported collecting or purchasing between 100 and 1,000 turtles; and nine dealers reported collecting or purchasing fewer than 100 turtles.

The permittees' annual reports do not include financial information from the sale of turtles. However, the largest reported commercial turtle dealer in Texas stated to the Regulations Committee of the Texas Parks and Wildlife Commission on April 4, 2007, that he paid $1 per pound for snapping turtles and softshell turtles and $0.20 per pound for all other species. Since a permitted nongame dealer may only purchase from a person holding a nongame permit, the department can estimate the income received by nongame permit holders from the collection and sale of turtles to a nongame dealer.

As previously noted, the department's rules do not require disclosure of financial information, so the actual sale price of the turtles purchased from the largest nongame dealer affected by the rule cannot be determined; but the department assumes that it must be larger than the price paid by the dealer to the nongame permit holders who collected the turtles. Therefore, if the turtles were sold for double the amount paid by the dealer, the department estimates from dealer report data that the dealer would have earned a profit of $109,271.80 in 2005 from the sale of these turtle species. Therefore, the economic cost of complying with the rules for largest dealer affected by the rule will be approximately $109,271.80. The cost of compliance for the smallest business affected by the rule will be less than $50, using the same method of estimation. More specifically, if a business employed 1 employee, the cost of compliance would be between $50 and $109,271.80 per employee. If a business employed 20 employees, the cost of compliance would be between $2.50 and $5,463.59 per employee. If a business employed 100 employees, the cost of compliance would be between $0.05 and $1,092.72 per employee. The proposed rules would affect the smallest and largest businesses equally, since the rule would prohibit the commercial collection of turtles by anyone.

The department is considering regulatory options other than the prohibition of commercial take of all turtles, including the implementation of seasons and bag limits, means and methods requirements, the implementation of individual quotas for collection, the restriction of collection activities to private waters, and the creation of captive breeder regulations. The rules as proposed may reflect one or more of these approaches as a method of reducing or eliminating impacts to small and microbusinesses while still accomplishing the department's goals of implementing regulations to manage nongame species, allow populations of nongame species to perpetuate themselves, and maintain the biological integrity of river system ecologies.

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 rule may be submitted to Kristin Rathburn, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-4505 (e-mail: Kristin.rathburn.wagner@tpwd.state.tx.us).

The amendments are proposed under the authority of Parks and Wildlife Code, §67.004, 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; and §67.0041, which authorizes the department to issue permits for the taking, possession, propagation, transportation, sale, importation, or exportation of a nongame species of fish or wildlife if necessary to properly manage that species.

The proposed amendments affect Parks and Wildlife Code, Chapter 67.

§65.325.Applicability.

(a) This [ ~~Except as provided in §65.330 of this title (relating to Record and Reporting Requirements) and subsection (b) of this section, this~~ ] subchapter applies to all [ ~~only to the~~ ] nongame wildlife in this state [ ~~listed in §65.331 of this title (relating to Affected Species)~~ ], living or dead, including parts of nongame wildlife and captive-bred nongame wildlife.

(b) This subchapter does not apply to:

(1) fish;

(2) the purchase, possession, or sale of processed products made from the nongame wildlife listed in §65.331 of this title (relating to Species Authorized for Commercial Activity , except as provided in §65.327(g) [ ~~§65.327(d)~~ ] of this title (relating to Permit Required);

[(3) teachers at accredited primary or secondary educational institutions, provided that the nongame wildlife is possessed solely for educational purposes and is not sold or transferred to another person for the purpose of sale;]

(3) [ ~~(4)~~ ] persons or establishments selling nongame wildlife listed in §65.331 of this title for and ready for immediate consumption in individual portion servings, and which are subject to limited sales or use tax; or

(4) diamondback terrapin (Malaclemys terrapin), which are addressed under the provisions of §65.82 of this title (relating to Other Aquatic Life).

~~[(5) any person 16 years of age or younger, provided the person is not engaged in a commercial activity involving nongame wildlife; or]~~

~~[(6) aquatic products possessed under a valid bait dealer's license.]~~

(c) A person in lawful possession of nongame wildlife prior to the effective date of this section who would be in violation of this subchapter after the effective date of this section by continuing to possess the nongame wildlife for commercial activity must sell, donate, or otherwise dispose of the nongame wildlife by no later than August 31, 2007.

(d) A person in lawful possession of nongame wildlife prior to the effective date of this section who would be in violation after the effective date of this section and who possesses the nongame wildlife for personal, noncommercial use may continue to possess the nongame wildlife, provided:

(1) the person contacts the department by no later than July 1, 2008 and reports the person's name and address, and the species and number of the nongame wildlife in possession; and

(2) the person does not engage in any commercial activity involving the nongame wildlife possessed under this section.

§65.327.Permit Required.

(a) Except as provided in this subchapter [ ~~section or in §65.325 of this title (relating to Applicability)~~ ], no person may[ ~~, for the purpose of commercial activity,~~ ] take, attempt to take, possess, import, export, or cause the export of nongame wildlife [ ~~or possess more than 25 specimens of nongame wildlife unless that person possesses a valid nongame permit or nongame dealer's nongame permit issued by the department~~ ].

(b) Except as provided in this subchapter, no person may take, attempt to take, possess, import, export, or cause the export of nongame wildlife listed in §65.331 of this title unless the person possesses a valid nongame permit or valid nongame dealer permit issued by the department.

(c) [ ~~(b)~~ ] A person possessing a valid nongame permit may sell nongame wildlife listed in §65.331 of this title only to a person in possession of a valid nongame dealer [ ~~dealer's nongame~~ ] permit.

(d) [ ~~(c)~~ ] A person possessing a valid nongame dealer [ ~~dealer's nongame~~ ] permit may sell nongame wildlife listed in §65.331 of this title to anyone.

(e) A person may take or possess six or fewer specimens of a species of nongame wildlife not listed in §65.331 of this title, provided the person does not engage in commercial activity involving the nongame wildlife taken or possessed.

(f) person may take or possess 25 or fewer specimens of a species of nongame wildlife listed in listed in §65.331 of this title, provided the person does not engage in commercial activity involving the nongame wildlife taken or possessed.

(g) [ ~~(d)~~ ] No person may collect nongame wildlife and subsequently treat it to create a processed product for sale, offer for sale, exchange, or barter unless that person possesses a valid dealer's nongame permit.

(h) [ ~~(e)~~ ] No person in this state may resell nongame wildlife unless that person possesses a valid dealer's nongame permit issued by the department.

(i) [ ~~(f)~~ ] A nongame dealer may, through commercial activity, acquire nongame wildlife only from a person permitted under this subchapter or a lawful out of state source.

(j) [ ~~(g)~~ ] Except as provided by subsection (h) of this section, a permit required by this subchapter shall be possessed on the person of the permittee during any activity governed by this subchapter. A separate permit is required for each permanent place of business. An employee of a nongame dealer may engage in commercial activity or the resale of nongame wildlife only at a permanent place of business operated by the permittee, provided that:

(1) the employer's permit or a legible photocopy of the permit is maintained at the place of business during all activities governed by this subchapter; and

(2) the place of business has been identified on the application required by §65.329 of this title (relating to Permit Application).

(k) [ ~~(h)~~ ] In the event that a nongame dealer conducts a commercial activity at a place in addition to the permittee's permanent place of business, that person shall possess on their person the original or a legible photocopy of a valid nongame dealer's permit.

(l) [ ~~(i)~~ ] This subchapter does not relieve any person of the obligation to possess an appropriate hunting license for any activity involving the take of nongame wildlife.

(m) [ ~~(j)~~ ] A permit issued under this subchapter is valid through the August 31 immediately following the date of issuance.

§65.331. Species Authorized for Commercial Activity [ ~~Affected Species~~ ].

(a) The department shall develop a policy for periodic evaluation of pertinent information or evidence to determine if a species should be added to or removed from the list of species in subsection (b) of this section. [ ~~The following species are subject to the provisions of this subchapter.~~ ]

[ ~~Figure: 31 TAC §65.331~~ ]

(b) Except as provided in this subchapter, no person may take, attempt to take, possess, import, export, or cause the export of any nongame wildlife not listed in this section.

Figure: 31 TAC §65.331(b)

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 April 9, 2007.

TRD-200701319

Ann Bright

General Counsel

Texas Parks and Wildlife Department

Earliest possible date of adoption: May 20, 2007

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