Part 2. TEXAS PARKS AND WILDLIFE DEPARTMENT
Subchapter A. FEES
Division 1. LICENSE, PERMIT, AND BOAT AND MOTOR FEES
The Texas Parks and Wildlife Commission adopts an amendment to §53.14, concerning Deer Management and Removal Permits, without changes to the proposed text as published in the April 20, 2007, issue of the Texas Register (32 TexReg 2249).
The amendment increases the fees for Deer Management Permit (DMP) renewals and Permits to Trap, Transport, and Transplant Game Animals and Game Birds (popularly referred to as "Triple T" permits).
The portion of the amendment affecting the Triple T permit (which includes the urban white-tailed deer removal permit) increases the fee for a Triple T application from $180 to $750. Elsewhere in this issue, the department is adopting an amendment to the Triple T rules in Chapter 65 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.
It is the policy of the Texas Parks and Wildlife Commission that the department recover the cost of administering permit programs that authorize the possession of live game animals. Additionally, 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. The rule as adopted is necessary for the department to recoup the expenses of administering the Triple T permit program. The fee of $750 was derived by dividing the cost of program administration and enforcement by the number of release sites.
The portion of the 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.
The rule will function by establishing the fee amounts for Triple T and DMP permits issued by the department.
The department received 19 comments opposing adoption of the fee increase for Triple T permits. Ten commenters expressed a specific rationale for opposing adoption. Those comments, accompanied by the department's responses, follow.
Eight commenters stated that the fee increase is unjustified and unfair. The department disagrees with the comments and responds that the fee increase is justified because the department must follow commission policy in attempting, to the greatest extent possible, to recoup the cost of the program from the users of the program, since it involves permits to possess live game animals. No changes were made as a result of the comments.
Ten commenters opposed adoption and stated that the department should delay for further cost/benefit analysis. The department disagrees with the comments and responds that further analysis is unnecessary. The department calculated the cost of administering and enforcing the Triple T program and distributed those costs on a per-permit basis. No changes were made as a result of the comment.
Six commenters opposed adoption and stated that permit users should have input before the rules are adopted. The department agrees with the comments and responds that in addition to the required publication of the proposed rules in the Texas Register , the department also published them electronically on the department's website (providing an opportunity for comment), distributed the proposed rules to advocacy groups such as the Texas Deer Association and the Texas Wildlife Association, and presented the proposed rules to the department's White-tailed Deer Advisory Board, composed of members of the regulated community. The department considers that sufficient opportunity for comment was provided. No changes were made as a result of the comments.
Eight commenters opposed adoption and stated that the fee increases would threaten the growth of the industry. The department disagrees with the comments and responds that the department's Triple T rules do not and are not intended to regulate an industry, but to regulate the possession by individuals of live deer that are a public resource. No changes were made as a result of the comments.
Eight commenters opposed adoption and stated that the fee increases threatened their ability to stay in business. The department, while sympathetic, disagrees with the comments and responds that the Triple T permit is intended to be a tool for landowners and land managers for better wildlife management, not a vehicle for business enterprises. No changes were made as a result of the comments.
Eight commenters opposed adoption and stated that the Triple T programs should not be just for the rich. The department agrees with the commenters and responds that before purchasing a permit, each potential participant in the program should carefully weigh the risks and benefits of engaging in Triple T activities. No changes were made as a result of the comments.
Eight commenters opposed adoption and stated that the fee increase will drive people the program was designed to help out of the program. The department disagrees with the comments and responds that the intent of the Triple T permit was not created to help any particular class or type of person, but to create a tool for landowners to use to adjust game populations for better wildlife management. No changes were made as a result of the comment.
Eight commenters opposed adoption and stated that the people who need the program the most would not be able to afford to participate. The department disagrees with the comment and responds that there is nobody who needs Triple T permits, only people who choose to use that particular tool to assist in the management of deer populations. No changes were made as a result of the comment.
Two commenters opposed adoption and stated that instead of increasing fees to meet costs, the department should streamline the application process to reduce costs. The department agrees with the comment, and responds that the major expenses associated with the Triple T program are associated not with the application process but with site inspection, compliance verification, and enforcement. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the fee increase will cause fewer deer to be moved and would therefore lead to overpopulation and habitat degradation. The department disagrees with the comment and responds that the number of deer moved under Triple T permits is statistically and biologically insignificant. Therefore, even if the department were to issue no Triple T permits for many years, there would be no detectable difference in habitat conditions on a landscape scale. The department also notes that although hunting pressure is the best, most cost-effective, and profitable method of population control, landowners and land managers with population problems may also avail themselves of the Managed Lands Deer Permit, the Antlerless and Spike-buck Control Permit, or even the Depredation Permit as a possible solution to overpopulation problems. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the fee increases will result in less hunting opportunity on properties that could use more deer but can't afford them. The department disagrees with the commenter and responds that white-tailed deer are by far the most abundant wildlife resource in the state of Texas, and that generally speaking, populations are at or above carrying capacity almost everywhere in the state, the exceptions being those areas where habitat has been severely degraded. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the department should cut waste before increasing fees. The department agrees with the comment but responds that it does not believe that the current program administration is wasteful. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the fee increase would increase the cost of obtaining deer. The department agrees with the comment, but responds that the fee increase is unavoidable. The department also notes that proper habitat management, coupled with a responsible harvest regime, should reduce the need to obtain deer for most landowners in the state. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the rule will increase permit costs for properties divided by highways, since there would be two release sites. The department disagrees with the comment and responds that the department's rules do not stipulate that a property divided by a highway necessarily constitutes separate release sites. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the fee increase will put a financial strain on landowners seeking to supplement the quantity and quality of low density deer herds. The department disagrees with the comment and responds that low-density deer herds are typically the result of habitat degradation or destruction, and that the introduction of additional deer under such circumstances is not biologically prudent. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the cost of prosecuting violators should be borne by the violators, not by law-abiding permit holders. The department agrees with the comment in principle; however, the department does not have the statutory authority to recover the costs of prosecution from individual violators, or to retain revenue from fines within specific programs. Thus, the department considers prosecution costs as a program administration cost and must distribute that cost among all permit holders in order to recover the total costs of administering the program. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the department was minimizing the adverse economic impact to permit holders by classifying them as small businesses or micro businesses. The department disagrees with the comment and responds that under Government Code, §2006.002, if a state agency determines that a rule would have an adverse economic effect on small businesses or micro businesses, the agency is required to prepare a statement of the effect of the rule on small businesses and micro businesses before adopting it. Although Triple T permits are issued to individuals, rather than to entities, the department reasoned that some, but not all, individuals who participate in activities covered by a Triple T permit do so in an effort to enhance profit generating hunting operations. To the extent that such operations could be considered small or micro businesses, the department prepared an impact analysis in order to comply with the relevant provisions of Government Code. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the department failed to consider the "potential downstream impact" of the fee increase "on the industry as a whole." The department disagrees with the comment and responds that the Triple T permit is not a regulatory mechanism for an industry, it is a permit issued to individuals to allow the temporary possession of live game animals. Therefore, the department analyzed the direct economic impacts to persons who obtain permits. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the department did not "take into account the likely discontinuance of current participants," which could result in "reduced overall revenue for the state, as well as the loss of the genetic enhancement to the Texas deer herds." The department disagrees with the comment and responds that the intent of the fee increase is not to generate additional revenue for the state, but to recoup the cost of administering and enforcing the program from program participants. The rule will result in the self-sufficiency of the program, irrespective of how many persons choose to participate in it. The department also responds that there is no scientific evidence to indicate that Triple T activities have any population level impact on the genetic composition of deer herds in the state. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the department seems to discount the consequences of the fee increase on small properties, disregards the impact on larger properties, and "overlooks entirely the potential impact on the industry as a whole." The department disagrees with the comment and responds that although Triple T permits are issued to individuals, rather than to entities, the department reasoned that some, but not all, individuals who participate in activities covered by a Triple T permit do so in an effort to enhance profit generating hunting operations. To the extent that such operations could be considered small or micro businesses, the department prepared an impact analysis in order to comply with the relevant provisions of Government Code. The department also responds that the Triple T permit is not a regulatory mechanism for an industry, it is a permit issued to individuals to allow the temporary possession of live game animals. Therefore, the department analyzed the direct economic impacts to persons who obtain permits. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the department made an inaccurate statement in the proposal preamble when it stated that there will be no fiscal implications for units of state and local governments other than the department as a result of enforcing or administering the rules. The department disagrees with the comment and responds that the statement is true and accurate to the best of the agency's knowledge. The direct effect of the rule as adopted is to increase the fees paid by individuals who obtain Triple T permits from the department. This will result in a revenue increase for the department, which was addressed in the proposal preamble. The department is unaware of any other direct impacts of the rule as adopted on any other unit of government. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the department made an inaccurate statement in the proposal preamble when it stated that the agency determined that the rule as proposed would not impact local economies. The department disagrees with the comment and responds that the statement is true and accurate to the best of the agency's knowledge. The direct economic effect of the rule as adopted is to increase the fees paid by individuals who obtain Triple T permits from the department. The department issued 75 Triple T permits last year. Those permits were issued to 58 individuals and authorized activities in 57 counties. While it is true that the fee increase will result in a direct economic impact to the individual who obtains a permit, the effect on local economies and local employment, if any, would be distributed across a wide geographical and economic landscape and not confined to any particular area or locale. The department also considered that workers typically hired to perform Triple T activities will fall into one of two categories: specialized workers such as helicopter pilots and crew, biologists, and veterinarians, and general labor, such as ranch hands. The department considered that the local economic demand for specialized workers such as biologists, helicopter pilots, and helicopter crews is distributed across many local economies and thus the effect of the fee increase would not be confined to a specific local economy. For workers such as veterinarians, the department considered that Triple T consulting/participation would not be a significant part of a typical veterinary practice, and that it would be unlikely, given the low number and geographic variability of Triple T activities, that the fee increase would cause employment declines in any specific local economy. For workers such as ranch hands, the department considered that such persons are typically employed for a range of duties, and that participation in Triple T permit activities would be ancillary to those considerations. Thus, the department does not believe that the fee increase will impact local economies. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the department made an inaccurate statement in the proposal preamble when it stated that there would be no difference in the cost of compliance between the largest business affected by the rule and the smallest business affected by the rule. The commenter stated that the adverse economic impact of the fee increase would affect mostly small businesses, as the persons who obtain Triple T permits typically are small businesses. The department disagrees with the comment and responds that under Government Code, §2006.002, if a state agency determines that a rule would have an adverse economic effect on small businesses or micro businesses, the agency is required to prepare a statement of the effect of the rule on small businesses and micro businesses before adopting it. Although Triple T permits are issued to individuals, rather than to entities, the department reasoned that some, but not all, individuals who participate in activities covered by a Triple T permit do so in an effort to enhance profit generating hunting operations. To the extent that such operations could be considered small or micro businesses, the department prepared an impact analysis in order to comply with the relevant provisions of Government Code. The department also determined that since the fee is the same for all users, it will not disproportionately affect any particular user. No changes were made as a result of the comment.
One commenter opposed adoption and stated that larger, more tenured, and more profitable industries with more deer will be affected to a less significant economic degree than a permittee with less profits, less tenure, and a smaller operation with fewer deer. The department disagrees with the comment and responds that the department is not charged by statute or policy with regulating an industry. The department also responds that the fee increase does not in any way affect the ability of any person to either locate properties where there is an overpopulation of deer (trap sites) or properties where it is biologically harmless to introduce deer (release sites). The department further responds that there is no relationship between the fee increase and the size of any given property; thus, the fee increase is a separate issue for a person seeking to engage in the trapping, transportation, and transplantation of deer and who does not own or have access to suitable properties for obtaining or releasing deer. The department also notes that the commenter seems to be inferring that permittees are engaged in the sale of deer. Under Parks and Wildlife Code, §62.021, it is unlawful to sell, offer for sale, purchase, possess after purchase or possess after purchase a game animal, which includes white-tailed and mule deer. No changes were made as a result of the comment.
One commenter opposed adoption and stated that there is a possible bias on the part of the department in targeting Triple T permits for fee increases because of the perception that "all such landowners are wealthy." The department disagrees with the comment and responds that the sole motivation for the fee increase is the desire to recoup the department's administrative and enforcement costs. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the rule is discriminatory, since the department does not impose a fee for other permits, such as the Managed Lands Deer Permit (MLDP) or the Antlerless and Spike-buck Deer Control Permit (ADCP). The department disagrees with the comment and responds that the MLDP program is designed to curb habitat degradation by authorizing a flexible harvest regime. The department determines the appropriate number of deer that should be harvested each year, and the landowner receives an extended harvest period and an enhanced bag limit to accomplish that harvest, which is done under all applicable provisions of the law governing hunting. The Triple T permit, on the other hand, authorizes the possession of live game animals, which are and remain a public resource during the course of all permitted activities. The department must ensure that the public resource is protected, which is why the fees exist. The ADCP is a permit that is intended purely to remedy immediate threats to habitat caused by overpopulations of deer. The department authorizes ADCPs as a last resort, which is evidenced by the fact that only two ADCPS were issued in 2006. No changes were made as a result of the comment.
One commenter opposed adoption and stated that since Triple T activities result in the improvement of hunting opportunity and quality, and since many Triple T holders also hold hunting licenses, that they should also benefit from their license revenue deposited to the Game, Fish, and Water Safety Account (Fund 9) in the same way that MLDP permit holders do, since there is no fee to recover the cost of administering the MLDP and the program is instead funded from Fund 9 revenue. The department disagrees with the comment and responds that the MLDP program is a harvest-driven habitat management program that furthers the agency's mission of emphasizing habitat management. The Triple T program authorizes individuals to possess live game animals. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the department is selectively implementing the user-pay/user-benefit model and should apply it to MLDPs and not just to the Triple T and DMP permits. The department disagrees with the comment and responds the legislature has not provided the statutory authority for the department to charge a fee for MLDPs, whereas such authority is explicitly granted for both the Triple T and DMP permits. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the department should use Fund 9 revenue to subsidize the Triple T program, because it contributes to "a healthier and more quality herd of white-tailed deer, primarily for hunting purposes." The department disagrees with the comment and responds that it is the policy of the commission that the fees for the Triple T program be established in such a fashion as to recoup the costs of administration and enforcement. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the department's use of the per-employee method of calculating the impact of the rule on small and micro businesses is not accurate or relevant to the characteristics of an industry in which most operations are individually owner or family operated. The department disagrees with the comment and responds that Government Code, §2006.002, provides that for the purposes of analyzing the adverse economic impact on small and micro businesses, an agency may use a comparison of the cost of compliance for small businesses with the cost of compliance for the largest businesses affected by the rule, using one of at three standards, one of which is the cost of compliance for each employee. The department also responds that the Triple T program is not intended to regulate an industry. No changes were made as a result of the comment.
One commenter opposed adoption and stated that increasing fees does not guarantee greater efficiency or clearer and more user-friendly-regulations. The department agrees with the comment, but responds that the rule is intended to recover current administration and enforcement costs, meaning that the since the current fee structure does not recover the cost to the agency of administration and enforcement, it is therefore inefficient by definition. The rules will be clearer, and therefore more user-friendly, because they plainly state that a permit is required for each release site. No changes were made as a result of the comment.
One commenter opposed adoption and stated that since the revenue from Triple T permits is deposited in Fund 9 with revenue from many other sources, the department has no way of knowing if the fee revenues from the permits is actually spent supporting the Triple T program. The department disagrees with the comment and responds that if the revenue recorded is consistent with administration and enforcement expenses, the net result is the same as if the revenue were deposited in a dedicated account. No changes were made as a result of the comment.
The department received 14 comments supporting adoption of the proposed amendment.
The department received 18 comments opposing adoption of the portion of the amendment that affected the fees for the Deer Management Permit (DMP). All 18 commenters expressed a specific rationale for opposing adoption. Those comments, accompanied by the department's responses, follow.
Nine commenters stated that the fee increase is unjustified and unfair. The department disagrees with the comments and responds that the fee increase is justified because the department must follow commission policy in attempting, to the greatest extent possible, to recoup the cost of the program from the users of the program, since it involves permits to possess live game animals. No changes were made as a result of the comments.
Eleven commenters opposed adoption and stated that the department should delay for further cost/benefit analysis. The department disagrees with the comments and responds that further analysis is unnecessary. The department calculated the cost of administering and enforcing the Triple T program and distributed those costs on a per-permit basis. No changes were made as a result of the comment.
Eleven commenters opposed adoption and stated that permit users should have input before the rules are adopted. The department agrees with the comments and responds that in addition to the required publication of the proposed rules in the Texas Register , the department also published them electronically on the department's website (providing an opportunity for comment), distributed the proposed rules to advocacy groups such as the Texas Deer Association and the Texas Wildlife Association, and presented the proposed rules to the department's White-tailed Deer Advisory Board, composed of members of the regulated community. The department considers that sufficient opportunity for comment was provided. No changes were made as a result of the comments.
Nine commenters opposed adoption and stated that the fee increases would threaten the growth of the industry. The department disagrees with the comments and responds that the department's DMP program does not and is not intended to regulate an industry, but to regulate the possession by individuals of live deer that are a public resource. No changes were made as a result of the comments.
Nine commenters opposed adoption and stated that the fee increases threatened their ability to stay in business. The department, while sympathetic, disagrees with the comments and responds that the DMP program is intended to be a tool for landowners and land managers for better wildlife management, not a vehicle for business enterprises. No changes were made as a result of the comments.
Ten commenters opposed adoption and stated that the DMP program should not be just for the rich. The department agrees with the commenters and responds that before purchasing a permit, each potential participant in the program should carefully weigh the risks and benefits of engaging in Triple T activities. No changes were made as a result of the comments.
Nine commenters opposed adoption and stated that the fee increase will drive people the program was designed to help out of the program. The department disagrees with the comments and responds that the DMP was not created to help any particular class or type of person, but to create a tool for landowners and land managers to use to manage deer populations. No changes were made as a result of the comment.
Nine commenters opposed adoption and stated that the people who need program the most would not be able to afford to participate. The department disagrees with the comment and responds that there is nobody who needs DMP permits, only people who choose to use that particular tool to assist in the management of deer populations. No changes were made as a result of the comment.
Two commenters opposed adoption and stated that instead of increasing fees to meet costs, the department should streamline the application process to reduce costs. The department agrees with the comment, and responds that the major expenses associated with the DMP program are associated not with the application process but with site inspection, compliance verification, and enforcement. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the cost of prosecuting violators should be borne by the violators, not by law-abiding permit holders. The department agrees with the comment in principle; however, the department does not have the statutory authority to recover the costs of prosecution from individual violators, or to retain revenue from fines within specific programs. Thus, the department considers prosecution costs as a program administration cost and must distribute that cost among all permit holders in order to recover the total costs of administering the program. No changes were made as a result of the comment.
One commenter opposed adoption and stated that increasing the fees will increase the cost of hunting. The department disagrees with the comment and responds that the cost of hunting opportunity is a matter between hunters and landowners and does not involve the department; however, the department does not believe that the cost of a DMP will, in and of itself, cause the cost of hunting to increase. No changes were made as a result of the comment.
One commenter opposed adoption and stated that there should be more restrictions on penned wildlife, not less. The department disagrees with the comment and responds that the possession of live game animals is sufficiently regulated. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the department was minimizing the adverse economic impact to permit holders by classifying them as small businesses or micro businesses. The department disagrees with the comment and responds that under Government Code, §2006.002, if a state agency determines that a rule would have an adverse economic effect on small businesses or micro businesses, the agency is required to prepare a statement of the effect of the rule on small businesses and micro businesses before adopting it. Although DMPs are issued to individuals, rather than to entities, the department reasoned that some, but not all, individuals who participate in activities covered by a DMP do so in an effort to enhance profit-generating hunting operations. To the extent that such operations could be considered small or micro businesses, the department prepared an impact analysis in order to comply with the relevant provisions of Government Code. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the department failed to consider the "potential downstream impact" of the fee increase "on the industry as a whole." The department disagrees with the comment and responds that the DMP is not a regulatory mechanism for an industry, it is a permit issued to individuals to allow the temporary possession of live game animals. Therefore, the department analyzed the direct economic impacts to persons who obtain permits. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the department did not "take into account the likely discontinuance of current participants," which could result in "reduced overall revenue for the state, as well as the loss of the genetic enhancement to the Texas deer herds." The department disagrees with the comment and responds that the intent of the fee increase is not to generate additional revenue for the state, but to recoup the cost of administering and enforcing the program from program participants. The rule will result in the self-sufficiency of the program, irrespective of how many persons choose to participate in it. The department also responds that there is no scientific evidence to indicate that DMP activities have any impact on the genetic structure of deer herds in the state. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the department seems to discount the consequences of the fee increase on small properties, disregards the impact on larger properties, and "overlooks entirely the potential impact on the industry as a whole." The department disagrees with the comment and responds that although DMPs are issued to individuals, rather than to entities, the department reasoned that some, but not all, individuals who participate in activities covered by a DMP do so in an effort to enhance profit-generating hunting operations. To the extent that such operations could be considered small or micro businesses, the department prepared an impact analysis in order to comply with the relevant provisions of Government Code. The department also responds that the DMP is not a regulatory mechanism for an industry, it is a permit issued to individuals to allow the temporary possession of live game animals. Therefore, the department analyzed the direct economic impacts to persons who obtain permits. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the department made an inaccurate statement in the proposal preamble when it stated that there will be no fiscal implications for units of state and local governments other than the department as a result of enforcing or administering the rules. The department disagrees with the comment and responds that the statement is true and accurate to the best of the agency's knowledge. The direct effect of the rule as adopted is to increase the fees paid by individuals who obtain DMPs from the department. This will result in a revenue increase for the department, which was addressed in the proposal preamble. The department is unaware of any other direct impacts of the rule as adopted on any other unit of government. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the department made an inaccurate statement in the proposal preamble when it stated that the agency determined that the rule as proposed would not impact local economies. The department disagrees with the comment and responds that the statement is true and accurate to the best of the agency's knowledge. The direct economic effect of the rule as adopted is to increase the fees paid by individuals who obtain DMPs from the department. The department issued 78 DMPs last year. Those permits were issued 73 individuals and authorized activities in 30 counties. While it is true that the fee increase will result in a direct economic impact to the individual who obtains a permit, the effect on local economies and local employment, if any, would be distributed across a wide geographical and economic landscape and not confined to any particular area or locale. The department also considered that workers typically hired to perform DMP activities will fall into one of two categories: specialized workers such as biologists and veterinarians, and general labor, such as ranch hands. The department considered that the local economic demand for specialized workers such as biologists is distributed across many local economies and thus the effect of the fee increase would not be confined to a specific local economy. For workers such as veterinarians, the department considered that DMP consulting/participation would not be a significant part of a typical veterinary practice, and that it would be unlikely, given the low number and geographic variability of DMP activities, that the fee increase would cause employment declines in any specific local economy. For workers such as ranch hands, the department considered that such persons are typically employed for a range of duties, and that participation in DMP activities would be ancillary to those considerations. Thus, the department does not believe that the fee increase will impact local economies. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the department made an inaccurate statement in the proposal preamble when it stated that there would be no difference in the cost of compliance between the largest business affected by the rule and the smallest business affected by the rule. The commenter stated that the adverse economic impact of the fee increase would affect mostly small businesses, as the persons who obtain DMPs typically are small businesses. The department disagrees with the comment and responds that under Government Code, §2006.002, if a state agency determines that a rule would have an adverse economic effect on small businesses or micro businesses, the agency is required to prepare a statement of the effect of the rule on small businesses and micro businesses before adopting it. Although DMPs are issued to individuals, rather than to entities, the department reasoned that some, but not all, individuals who participate in activities covered by a DMP do so in an effort to enhance profit generating hunting operations. To the extent that such operations could be considered small or micro businesses, the department prepared an impact analysis in order to comply with the relevant provisions of Government Code. The department also determined that since the fee is the same for all users, it will not disproportionately affect any particular user. No changes were made as a result of the comment.
One commenter opposed adoption and stated that larger, more tenured, and more profitable industries with more deer will be affected to a less significant economic degree than a permittee with less profits, less tenure, and a smaller operation with fewer deer. The department disagrees with the comment and responds that the department is not charged by statute or policy with regulating an industry. The department further responds that there is no relationship between the fee increase and the size of any given property; thus, the fee increase is a separate issue for a person seeking to engage in DMP activities. The department also notes that it has no control over how much or how little property a person may control. The department also notes that the commenter seems to be inferring that permittees are engaged in the sale of deer. Under Parks and Wildlife Code, §62.021, it is unlawful to sell, offer for sale, purchase, possess after purchase or possess after purchase a game animal, which includes white-tailed and mule deer. No changes were made as a result of the comment.
One commenter opposed adoption and stated that there is a possible bias on the part of the department in targeting DMPs for fee increases because of the perception that "all such landowners are wealthy." The department disagrees with the comment and responds that the sole motivation for the fee increase is the desire to recoup the department's administrative and enforcement costs. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the rule is discriminatory, since the department does not impose a fee for other permits, such as the Managed Lands Deer Permit (MLDP) or the Antlerless and Spike-buck Deer Control Permit (ADCP). The department disagrees with the comment and responds that the MLDP program is designed to curb habitat degradation by authorizing a flexible harvest regime. The department determines the appropriate number of deer that should be harvested each year, and the landowner receives an extended harvest period and an enhanced bag limit to accomplish that harvest, which is done under all applicable provisions of the law governing hunting. The DMP, on the other hand, authorizes the possession of live game animals, which are and remain a public resource during the course of all permitted activities. The department must ensure that the public resource is protected, which is why the fees exist. The ADCP is a permit that is intended purely to remedy immediate threats to habitat caused by overpopulations of deer. The department authorizes ADCPs as a last resort, which is evidenced by the fact that only two ADCPS were issued in 2006. No changes were made as a result of the comment.
One commenter opposed adoption and stated that since DMP activities result in the improvement of hunting opportunity and quality, and since many DMP holders also hold hunting licenses, that they should also benefit from their license revenue deposited to the Game, Fish, and Water Safety Account (Fund 9) in the same way that MLDP permit holders do, since there is no fee to recover the cost of administering the MLDP and the program is instead funded from Fund 9 revenue. The department disagrees with the comment and responds that the MLDP program is a harvest-driven habitat management program that furthers the agency's mission of emphasizing habitat management. The DMP program authorizes individuals to possess live game animals. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the department is selectively implementing the user-pay/user-benefit model and should apply it to MLDPs and not just to the Triple T and DMP permits. The department disagrees with the comment and responds the legislature has not provided the statutory authority for the department to charge a fee for MLDPs, whereas such authority is explicitly granted for both the Triple T and DMP permits. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the department should use Fund 9 revenue to subsidize the DMP program, because it contributes to "a healthier and more quality herd of white-tailed deer, primarily for hunting purposes." The department disagrees with the comment and responds that it is the policy of the commission that the fees for the DMP program be established in such a fashion as to recoup the costs of administration and enforcement. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the department's use of the per-employee method of calculating the impact of the rule on small and micro businesses is not accurate or relevant to the characteristics of an industry in which most operations are individually owner or family operated. The department disagrees with the comment and responds that Government Code, §2006.002, provides that for the purposes of analyzing the adverse economic impact on small and micro businesses, an agency may use a comparison of the cost of compliance for small businesses with the cost of compliance for the largest businesses affected by the rule, using one of at three standards, one of which is the cost of compliance for each employee. The department also responds that the DMP program is not intended to regulate an industry. No changes were made as a result of the comment.
One commenter opposed adoption and stated that increasing fees does not guarantee greater efficiency or clearer and more user-friendly-regulations. The department agrees with the comment, but responds that the rule is intended to recover current administration and enforcement costs, meaning that the since the current fee structure does not recover the cost to the agency of administration and enforcement, it is therefore inefficient by definition. The rules will be clearer and more user-friendly, because they make compliance less onerous and afford permittees more flexibility to conduct some permit operations than is currently possible. No changes were made as a result of the comment.
One commenter opposed adoption and stated that since the revenue from DMPs is deposited in Fund 9 with revenue from many other sources, the department has no way of knowing if the fee revenues from the permits is actually spent supporting the DMP program. The department disagrees with the comment and responds that if the revenue recorded is consistent with administration and enforcement expenses, the net result is the same as if the revenue were deposited in a dedicated account. No changes were made as a result of the comment.
One commenter opposed adoption and stated that there is no statutory requirement for the department to recover the administrative and enforcement costs of the Triple T permit. The department agrees with the comment, but responds that under Parks and Wildlife Code, §43.603, the department shall set a fee for a DMP in an amount not to exceed $1,000. No changes were made as a result of the comment.
The department received 14 comments supporting adoption of the proposed amendment.
The amendment is adopted under the authority of Parks and Wildlife Code, §11.027, which authorizes the commission to establish and provide for the collection of a fee to cover costs associated with the review of an application for a permit required by the code; 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 of game animals and game birds, to issue permits for urban white-tailed deer removal and to establish a fee for those permits.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June 28, 2007.
TRD-200702720
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Effective date: July 18, 2007
Proposal publication date: April 20, 2007
For further information, please call: (512) 389-4775
Subchapter A. PARK ENTRANCE AND PARK USER FEES
The Texas Parks and Wildlife Commission adopts an amendment to §59.3, concerning Activity and Facility Use Fees, without changes to the proposed text as published in the April 20, 2007, issue of the Texas Register (32 TexReg 2251).
The amendment incorporates special access permit fees as part of state park regulations. In a notice of adoption published elsewhere in this issue of the Texas Register , the department has created a special access permit valid for access to state parks for person 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 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 amendment explicitly acknowledges that distinction by rule. The effect of the adopted amendment would be nonsubstantive; it does not create a new fee and does not impose the existing fee on additional users.
The amendment will function by administratively segregating revenues from permits for various public hunting activities.
The department received no comments concerning adoption of the proposed amendment.
The amendment is adopted under the authority of Parks and Wildlife Code, §11.027, which authorizes the 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.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June 28, 2007.
TRD-200702722
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Effective date: July 18, 2007
Proposal publication date: April 20, 2007
For further information, please call: (512) 389-4775
Subchapter A. STATEWIDE HUNTING AND FISHING PROCLAMATION
The Texas Parks and Wildlife Commission (the department) adopts amendments to §§65.3, 65.9, 65.10, 65.25, 65.34, 65.42, 65.44, 65.64, 65.72, and 65.82, concerning the Statewide Hunting and Fishing Proclamation. Sections 65.3, 65.64, 65.72, and 65.82 are adopted with changes to the proposed text as published in the March 2, 2007, issue of the Texas Register (32 TexReg 1026). Sections 65.9, 65.10, 65.25, 65.34, 65.42, and 65.44 are adopted without changes and will not be republished.
The change to §65.3, concerning Definitions, adds a definition of "inside waters." The definition is necessary because the department is clarifying the geographical dimensions of the area in which special spotted seatrout regulations apply. Rather than trying to describe that area by naming the various bays, passes, and channels that are contained within it, the department has chosen to use the definition of "inside waters" from the department's shrimp rules, which accomplishes the same thing in a much clearer and unambiguous fashion.
The change to §65.64 opens the general spring turkey season in the North Zone on the Saturday closest to April 1, instead of the proposed date of the Saturday closest to April 7. The change is necessary as a result of public comment. The department has determined that the current opening date is preferred by hunters and that there is no threat of depletion or waste of the resource as a result of retaining the current opening day.
The change to §65.72 alters subsection (a)(4)(F) to prohibit the use of vessels to harass fish. The rule as proposed would have prohibited the use of vessels to "pursue, harass, or harry" fish; however, it was pointed out that fishing in itself involves the pursuit of fish. The change is necessary to prevent confusion.
The change to §65.72 also alters subsection (b)(2)(C) to allow for one tarpon 85 inches or longer to be retained per year. The proposed amendment would have implemented a catch-and-release only fishery for tarpon. Public comment convinced the department that the current bag limit of one fish per year set to the current state record for the largest tarpon would effectively protect tarpon populations from overharvest while still allowing anglers to catch, weigh, and qualify for a record under current state guidelines.
The change to §65.72(b)(2)(C) also retains the current 15-inch size limit for red snapper. The proposed amendment would have implemented a 13-inch size limit; however, in reviewing public comment and additional data, the department has determined that the provision requiring the use of circle hooks will be sufficient to protect red snapper populations. The size limit will not be changed at this time due to the inconsistency this would create with size limits in federal waters.
The change to §65.72 also rewords subsection (b)(2)(D)(ii) to alter the description of the boundaries within which special spotted seatrout rules apply. As proposed, the rule would have implemented a five-fish daily bag limit for spotted seatrout within a prescribed geographical area. In reviewing public comment, the department determined that the geographical boundaries could be more precisely delineated.
The change to §65.82, concerning Other Aquatic Life, removes the proposed exception for the take or possession of diamondback terrapin by persons holding a nongame or nongame dealer permit. The change is necessary because recent action by the Texas Parks and Wildlife Commission altered the regulations governing commercial nongame permits to specifically exempt diamondback terrapin from applicability of those rules.
The amendment to §65.3, concerning Definitions, clarifies terminology for the definitions of 'coastal waters boundary' and 'final processing,' and add definitions of 'circle hook,' 'charter vessel,' and 'headboat.' The current definition of the boundaries of the state's coastal waters in every instance refers to 'coastal water,' except for a single reference to 'saltwater.' To avoid confusion, the term should be consistent throughout the rule, so the reference to saltwater has been replaced. The current definition of 'final processing' does not reflect a statutory provision (Parks and Wildlife Code, §42.001(5)) that applies only to deer and antelope, giving the impression that the current definition applies to all wildlife resources. To prevent confusion, the amendment adds the statutory definition for deer and antelope.
The addition of definitions for 'circle hook,' 'charter vessel,' and 'headboat' defines those terms for the purposes of compliance with and enforcement of the amendment to §65.72 that alters rules affecting the red snapper fishery. The definition of 'circle hook' is necessary because the department has prohibited all hooks other than the circle hook for the take of red snapper.
Additionally, the amendment to §65.72 incorporates the federal Individual Fishing Quota (IFQ) rules for the commercial take of red snapper. The IFQ is a form of limited access that assigns a fixed share of the total allowable catch to each user of the resource. The percentage share is based on historical catches in a particular time period. With each landing, poundage from the quota is debited from the individual's IFQ account. The IFQ program is mandated by federal law for all vessels and persons engaged in the commercial harvest of red snapper in federal waters. The incorporation of the federal rules in the Texas Administrative Code allows the department to prosecute violations of the rules in state jurisdictions. Since the federal IFQ system contains provisions governing vessels (headboats and charter vessels) that simultaneously engage in both commercial and recreational fishing, those terms must be defined in order for the regulated community to understand the applicability of the rules to their various activities.
The amendment to §65.3 also updates the reference to the title of the American Fisheries Society publication used to determine fish names. The new title of that publication is "Common and Scientific Names of Fishes from the United States, Canada, and Mexico."
The amendment to §65.9, concerning Open Seasons: General Rules, eliminates subsection (d), which by its own terms ceased effect on September 1, 2003 and is thus no longer necessary.
The amendment to §65.10(b) eliminates the 'double tagging' requirement for mule deer taken under an antlerless mule deer permit. In previous rulemakings, the department eliminated 'double tagging' for white-tailed deer, which was caused by overlapping regulatory requirements that obligated hunters to provide the same information on multiple tags and documents. With the expansion of the managed lands permit program to encompass mule deer, the department inadvertently neglected to provide for the elimination of 'double tagging' of mule deer. The amendment is necessary to streamline the tagging process and make it consistent for all deer taken by special permit.
The amendment to §65.10(f) requires taxidermists to retain a wildlife resource document (WRD) or tag for each deer or turkey in possession for a period of at least two years following the return of the specimen to the owner or, if the owner abandons it, the sale for recovery of the cost of taxidermy. Under Parks and Wildlife Code, §42.018 and §42.0185, the tagging requirements for deer or turkey allow for the use of a WRD in lieu of a tag under certain circumstances, including when deer and turkey are left with a taxidermist. Under §42.0177, the commission may modify or eliminate those requirements. By statute (Parks and Wildlife Code, §62.023), a taxidermist may sell unclaimed specimens to recover the cost of the taxidermy, and is required to retain the WRD or tag for a period of two years from the date the taxidermy was completed. The two-year time period is the statute of limitations for a Class C misdemeanor. By starting the two-year retention period from the time a specimen is returned to the owner or sold (rather than when the taxidermy is completed), the department will always have the maximum amount of time to conduct an investigation when it is necessary to determine whether deer or turkey taken to a taxidermist have been lawfully taken.
The amendment to §65.25, concerning Wildlife Management Plan (WMP), alters the provisions of the section applicable to lesser prairie chicken and creates additional provisions concerning javelina. With respect to lesser prairie chicken, the amendment to subsection (b) reduces the number of required management practices from five to three, increases the maximum designated harvest from up to five percent of the estimated lesser prairie chicken population on the property to up to 10 percent of that estimate, and adds a requirement for a harvest log to be maintained on the property. The intent of the amendment is to give field staff more flexibility to encourage landowners to participate in management programs for lesser prairie chicken. The department has determined that most landowners interested in the program are already conducting some or many practices that are beneficial to lesser prairie chicken; therefore, the number of required practices may be reduced. Because of the breeding behavior of lesser prairie chickens and their large home ranges, habitat components for any given population are typically provided by several landowners. For example, nesting and feeding areas may be on one property, while the breeding ground is on another. Variability in property sizes can make management challenging, especially when birds are spending only a small portion of their time on a given habitat component, such as the breeding ground. Increasing the harvest rate will allow field biologists to make issuance of harvest quotas for lesser prairie chicken more equitable for landowners in the program. Harvest at or below 10% of the estimated total population will not result in depletion of the resource, since the post-harvest reproductive potential is more than sufficient to offset or replace harvest mortality. The harvest log requirement is necessary to maintain a record of harvest so the department can determine compliance with harvest quotas. The amendment also alters subsection (b)(1)(E) by inserting the word 'quota' to clarify that the harvest recommendation is in fact a limit.
With respect to javelina, the amendment to §65.25 adds new subsection (c) to create a mechanism to allow the harvest of javelina by quota on individual properties under a department-approved management plan. Javelina are common across southern and western Texas, but are not uniformly distributed over their natural range. Although department data indicate a possible downward trend across their range, javelina populations are stable or thriving where habitat is good, particularly along drainages where there is abundant vegetation and cover. Thus, in many areas javelina exist in densities sufficient to sustain additional hunting pressure in excess of the current personal bag and possession limits, provided the total harvest does not cause local populations to fall below their immediate recuperative potential. The amendment also allows the department to establish an annual harvest quota for javelina on a given property and the normal bag and possession limits would no longer apply. The amendment also requires a habitat evaluation, habitat management practices, a harvest log, and population and harvest data for javelina on each property where javelina are to be hunted. By establishing a finite, resource-dependent harvest quota, the department is assured that harvest will not exceed biologically acceptable levels. By collecting valuable biological information on a property-by-property basis, the department will be able to acquire useful biological data concerning javelina populations.
The amendment to §65.34, concerning Managed Lands Deer Permits (MLDP)--Mule Deer, allows the take of mule deer by MLDP during the archery-only open season. When the MLDP program was expanded to include mule deer, the department inadvertently did not provide for an archery-only open season on properties receiving mule deer MLDPs. Under the MLDP program, a participating property receives a finite harvest quota and a specific time period in which to harvest the specified number of animals. The implementation of an archery season will not be additive to the harvest quota. The amendment is necessary because there is no biological reason not to provide an archery season for mule deer on properties participating in the MLDP program for mule deer.
The amendment to §65.42, concerning Deer, addresses several issues. The amendment to subsection (a) clarifies that no person is authorized to exceed a county bag limit except as provided in the section. The amendment to subsection (a)(5) allows a person to take an antlerless mule deer under an antlerless mule deer permit without also having to tag the deer with a tag from the person's hunting license. The amendment is necessary to prevent hunters from being inconvenienced by "double tagging," having to tag a deer with multiple tags bearing the same information.
The amendment to §65.42(b)(17) and (c)(5) would extend the statewide archery-only season by five days. Historically, the archery season has always closed the Sunday before the opening of the general season. The change eliminates the current five-day gap between the end of the archery season and the beginning of the general season. The amendment is necessary to follow the commission's policy of providing the maximum hunting opportunity possible.
The amendment to §65.42(b)(5) - (9) clarifies the rules concerning the take of buck deer in counties where antler restrictions are in effect. In those counties, a lawful buck is defined as a buck that has an inside antler spread of 13 inches or greater or a buck that has at least one unbranched antler. A hunter may take two bucks, but only one of them may have an inside antler spread of 13 inches or greater. The amendment is necessary because the current rule does not provide for the instance in which a hunter kills a spike-buck deer with an inside spread of greater than 13 inches. The amendment would make it clear that the antler spread of a buck with an unbranched antler is irrelevant.
The amendment to §65.42(b)(13)(D) clarifies that antlerless deer may be taken without a permit anywhere in Grayson County during the 'doe days' in effect in the county.
The amendment to §65.44, concerning Javelina: Seasons and Annual Bag Limits, inserts clarifying language to prevent conflicts with the adopted amendment to §65.25.
The amendment to §65.64, concerning Turkey, alters subsection (b)(3) to change the spring season dates for Rio Grande turkey. In 2005, the department lengthened the season and created a uniform opening day in all counties. In analyzing the results of that change, the department has determined that additional hunting opportunity can be provided without resulting in depletion or waste of the resource. The amendment starts the season approximately two weeks earlier (the Saturday closest to March 18) in counties in the southern Edwards Plateau, South Texas, and the Trans-Pecos. The amendment allows hunters in the southern Edwards Plateau, South Texas, and the Trans-Pecos to take advantage of peak gobbling activity, which often varies annually depending on weather conditions. Since the spring Rio Grande hunting season is limited to only male birds (gobblers) there is little harm to turkey production, unless hunting activities disrupt the breeding behavior of the turkeys. The new opening date will allow hunters to be in the field when peak gobbling occurs. The amendment is necessary in order to follow the commission's policy of providing the maximum opportunity possible within the tenets of sound biological management. In selecting the counties affected by the amendment, the department included three counties (Guadalupe, DeWitt, and Victoria) where the spring bag limit is currently one gobbler. In 1996, the department reduced the spring season bag limit in those counties due to population concerns. The department has determined that the populations in those counties are now able to withstand additional harvest.
The amendment also would extend the statewide archery-only season for turkey by five days, for the same reasons discussed for the extension of the archery season for deer.
The amendment to §65.72, concerning Fish, consists of a number of actions. The amendment would alter subsection (a) to exempt persons engaged in offshore aquaculture from the size and bag limits established for the recreational fishery. The action is necessary to clarify that fish being reared in lawful aquaculture facilities would be allowed to be possessed and landed without violating the recreational limits for those species.
The amendment to §65.72(a) also would allow the use of catfish heads as bait in crab traps by commercial crab fishermen, provided the catfish were obtained from a permitted aquaculturist in the United States. The purpose of the prohibition of the use of game fish for bait is to prevent the use of undersized game fish as bait. However, catfish heads are good bait for crab traps, and aquaculture facilities typically have no use for catfish heads following harvest. By restricting the use of catfish to heads only and requiring crab fisherman who do use them to be able to document their origin, the department believes protection for game species will not be affected.
The amendment to §65.72(a) also would prohibit the use of any vessel to harass fish. The current rule prohibits the use of airboats or jet-driven devices to harass or harry fish. At the time the current rule was adopted, only certain types of vessels were capable of traversing water shallow enough to allow the herding of fish; however, newer hull and engine designs allow many vessels to access very shallow water and occurrences of this kind of activity are growing. Fish that are artificially concentrated into small areas are more susceptible to anglers than those that are not concentrated, despite otherwise effective restrictions. Under Parks and Wildlife Code, §61.002, the purpose of the chapter is to provide a comprehensive method for the conservation of an ample supply of wildlife resources on a statewide basis to insure reasonable and equitable enjoyment of the privileges of ownership and pursuit of wildlife resources. Harrying fish with vessels is considered an artificial method of concentration that deprives other anglers of the opportunity for equitable enjoyment of the resource.
The amendment to §65.72(a) also would incorporate federal regulations governing the Individual Fishing Quota program in state regulations. Federal rules require a federal permit for the harvest of Gulf of Mexico Reef Fish and a federal red snapper Individual Fishing Quota (IFQ) vessel endorsement. This change is necessary to allow enforcement of these requirements in state as well as federal court and to insure that fish landed in Texas are not in contravention of federal limits.
The amendment to §65.72 would alter the provisions of subsection (b)(2)(C) to increase the size limit for sheepshead from 12 inches to 15 inches over a three-year period. The current size limit was implemented 15 years ago and was selected to maintain consistency with other, similar size limits, based on the life history research known about sheepshead at the time. Recent biological research suggests that the 15-inch limit would provide better protection for sheepshead, allowing a higher percentage of fish to reach sexual maturity and achieve the age at first spawn. Since the growth rate of sheepshead is relatively slow, increasing the size limit by one inch per year balances greater protection via size limits against the impacts of size limits on recreational landings. Increasing the size limit by one inch per year over the next three years will achieve the protection needed and minimize the impact to recreational landings. The amendment is necessary to ensure the sustainability of the fishery with minimal impact on current landings.
The amendment to §65.72(b)(2)(C) also increases the minimum length limit for tarpon to 85". Under current rule there is a bag limit of one tarpon of 80" or longer per person per year. Tarpon become reproductively mature at around 10 years of age (approximately 4 feet in length). While individual females are relative fecund, the survival rate of young is poor compared to other species of saltwater fish because its unusual life history involves multiple larval stages, all susceptible to predation. By increasing the minimum length to the equivalent of a state record for size, the department will reduce an already conservative harvest while allowing anglers the opportunity to retain and qualify fish for a state record under the current guidelines.
The amendment to §65.72(b)(2)(D) increases the possession limit for striped bass on Lake Texoma from 10 to 20. The change will reduce angler confusion with respect to fish landed in Texas and creates a more standardized regulation with Oklahoma, without resulting in any negative impacts on the resource or the angling community. The current possession limit on Lake Texoma (10 fish) is identical to the daily bag limit, which differs from the statewide regulations that generally establish the possession limit as twice the daily bag limit. The Oklahoma possession limit is 20 fish, with special exceptions.
The amendment to §65.72(b)(2)(D) regionalizes spotted seatrout regulations by reducing bag and possession limits for spotted seatrout in the lower Laguna Madre (LLM). The amendment lowers the daily bag limit in the LLM from 10 to 5, and the possession limit will be the same as the daily bag limit. Surveys and modeling have suggested a relatively long downward trend in overall abundance of spotted seatrout and a decrease in the spawning stock biomass in the LLM. Population size in this bay system is at or slightly below those found elsewhere along the coast, but it is significantly lower than in the recent past. Based on bag seine sampling in the LLM there is constant recruitment into the LLM fishery. Gill-net sampling by the department indicates that while the same or even slightly greater abundance of fish are reaching the size classes that are susceptible to sampling with the gill nets (based on gear selectivity), a smaller proportion of those fish are reaching the larger size classes as compared to previous time periods. These larger size classes of fish are being harvested out of the system and this is causing the overall declining relative abundance in the population and could start to impact the reproductive potential of the population. Modeling has indicated a substantial improvement would be possible in a relatively short period of time if these trends were to be addressed now. This amendment is necessary to stop and reverse current total abundance and spawning biomass trends in the LLM.
The amendment also inserts a statement in §65.72(b)(2)(C) to clarify that the provisions of subparagraph (D) of that paragraph are exceptions to the provisions of subparagraph (C) of that paragraph. The amendment is necessary for the sake of clarity.
The amendment also extends for one year the provision allowing the harvest of catfish by means of lawful archery equipment and crossbow. The amendment is necessary because the department is still in the process of evaluating the impact of the current regulation on catfish populations.
The amendment to §65.82 prohibits the take or possession of diamondback terrapin. The impact of direct or incidental take and accidental mortality on diamondback terrapins is a concern, and research indicates that the species is in a declining population trend across much of its range. The amendment is necessary to manage the species and allow for successful perpetuation.
The department received 114 comments opposed to the adoption of the amendment to §65.64 that would have established the opening day for spring turkey season in north and north-central Texas counties (hereafter, the North Zone) on the Saturday closest to April 7. Thirty commenters stated a specific reason or rationale for opposing adoption. Those comments, accompanied by the agency's response, are as follows.
Ten commenters opposed adoption and stated a preference for an unspecified opening day in the North Zone, provided it was earlier than the Saturday closes to April 7. Seven commenters stated a preference for an opening day one week earlier than the Saturday closest to April 7 in the North Zone. Nine commenters stated a preference for an opening day two weeks earlier than the Saturday closest to April 7 in the North Zone. The agency agrees with the comments generally, inasmuch as an opener earlier than April 7 seems to be the preference of most hunters. The option least likely to result in depletion or waste of the resource is the current opening date. Therefore, the department has retained the season structure currently in effect, beginning the Saturday closest to April 1 and running for 44 consecutive days.
Two commenters opposed adoption and stated there should be a single, statewide spring turkey season. The agency disagrees and responds a single-season structure was implemented last year in an effort to create a simpler regulation. In analyzing the results of that season, the department determined that although there may be years in which peak gobbling activity occurs at roughly the same time in South Texas and in North Texas, there was a significant probability that most years will see a pronounced difference. Data obtained from a study in South Carolina indicated that peak gobbling activity sometimes does not occur until mid-May, and it was thought that central and north-central Texas would experience this type of chronology more frequently than it would occur in South Texas. However, due to the overwhelming preference of hunters for an opener earlier than April 7, and the fact that the current opening date does has not and will not result in either depletion or waste of the resource, the department has determined that maintaining the current opening date in the North Zone is the most prudent course of action. No changes were made as a result of the comments.
One commenter opposed adoption and stated that the opener in South Texas was too early and would interfere with reproduction. The department disagrees with the comment and responds that the likelihood of reproductive disruption is low, because the harvest is gobblers-only and harvest mortality would have to be in excess of 50 per cent of the total male population in order to introduce reproductive decline. No changes were made as a result of the comment.
The department received 76 comments supporting adoption of the proposed amendment.
The department received 14 comments opposing adoption of the proposed amendment that would implement the archery-only season for deer and turkey on properties where Managed Lands Deer Permits (MLDP) have been issued for mule deer. Of the 14 comments, four expressed a specific rationale or explanation for opposing adoption. All four commenters expressed philosophical disapproval of the MLDP concept, rather than opposition to the amendment as published. The department disagrees with the comments and responds that there is no reason to eliminate the MLDP program rather than the double-tagging requirements. No changes were made as a result of the comments.
The department received 91 comments supporting adoption of the proposed amendment.
The department received 53 comments opposing adoption of the proposed amendment that would eliminate the five-day gap between the end of the archery-only open season and the beginning of the general seasons for deer and turkey. Of the 42 comments, 16 stated a rationale or explanation for opposition. Those comments, accompanied by the agency's response to each, are as follows.
One commenter opposed adoption and stated that continuous hunting from the opening of the archery-only season until the end of the general season was not good management. The department disagrees with the comment and responds that seasons, bag limits, and harvest quotas are designed so as not to result in excessive harvest. There is no region of the state where the deer harvest threatens depletion of the resource, and due to the low hunter success of archery hunting (compared to firearms), the additional five days of archery hunting will not result an appreciable increase in harvest. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the department was catering to special interests. The department disagrees with the comment and responds that under Parks and Wildlife Code, §61.002, one of the purposes of that chapter is to "insure reasonable and equitable enjoyment of the privileges of ownership and pursuit of wildlife resources." The department estimates that there are approximately 70,000 archers in Texas, and the extension of the archery-only season by five days is in the department's view reasonable when compared to the three-month general season during which hunters may take deer by firearms. No changes were made as a result of the comment.
Ten commenters opposed adoption and stated that the amendment would not allow deer to settle down before the general open season on public lands. The department disagrees with the comment and responds that there is no biological evidence the department is aware of to suggest that starting the general season the day after the archery-only season would have any adverse impact in the resource. No changes were made as a result of the comments.
One commenter opposed adoption and stated that non-archers needed time to get their camps set up prior to the opening of the general season. The commenter stated that this cannot be done safely if the archery-only season is open and that it (the preparation of camps) would interfere with archers' activities. The department disagrees with the comment and responds that the department does not believe there is a safety issue associated with regulatory restrictions upon means and methods, and in any case, the department does not possess the statutory authority to establish season dates based on safety. No changes were made as a result of the comment.
One commenter opposed adoption and stated that five days should be added to the end of the general season, just to be fair. The department disagrees with the comment and responds that because there are approximately 70,000 archers in Texas, the extension of the archery-only season by five days is in the department's view reasonable when compared to the three-month general season during which hunters may take deer by firearm. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the elimination of the five-day gap would cause more poaching, or that people would shoot deer with a rifle during the archery season and then wait until the general season to bring them in. The department disagrees with the comment and responds that the presence or absence of an interval between the archery and general seasons has no bearing on anyone's conscious decision to violate the law. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the five-day period should be a muzzleloader-only season. The department disagrees with the comment and responds that because muzzleloading firearms are lawful during the three-month general season, there is ample opportunity for muzzleloader enthusiasts. The department also notes that there is a nine-day season muzzleloader season following the general season in some Pineywoods and West Texas counties. No changes were made as a result of the comment.
One commenter opposed adoption and stated that eliminating the five-day gap would cause enforcement problems. The department disagrees with the comment and responds that there is no reason to believe that the rule as adopted cannot be enforced. No changes were made as a result of the comment.
The department received 168 comments supporting adoption of the proposed amendment.
The department received eight comments opposing adoption of the amendment that would decrease the number of management activities required under a management plan for lesser prairie chicken and increase the allowable harvest for lesser prairie chicken on properties under an approved management plan. Of the eight commenters, one articulated a rationale or explanation for opposition. The commenter stated that the amendment did nothing for the average hunter and was intended only to benefit wealthy landowners. The department disagrees with the comment and responds that the intent of the rule as adopted is to encourage greater participation by landowners in the department's efforts to effectively manage lesser prairie chicken populations. By offering harvest incentives that are not inconsistent with sound management in exchange for more intensive habitat management, the department believes that the interests of the resource and the public are better served than they would be by simply closing the season. No changes were made as a result of the comment.
The department received 56 comments supporting adoption of the proposed amendment.
The department received 50 comments opposing adoption of the proposed amendment to allow the harvest of javelina by annual harvest quota on properties under a department-approved management plan. Of the 47 comments, 19 stated a rationale or explanation for opposition. Those comments, accompanied by the agency's response to each, are as follows.
Three commenters opposed adoption and stated that the amendment helped a few landowners, but not the resource or the public. The department disagrees with the comment and responds that responsible management is a good thing, no matter where it occurs. For those landowners with healthy habitat and robust javelina populations and who are willing to enter into a habitat management agreement with the department, there is no reason not to permit a reconfigured and biologically sound harvest opportunity.
Two commenters opposed adoption and stated that javelina populations are too low. The department disagrees with the comment and responds that although department data indicates a downward population trend for javelinas across the entirety of their range, this is not true for specific areas within their range. The department does not intend to authorize any harvest quota that would be inconsistent with sound biological management. No changes were made as a result of the comments.
Six commenters opposed adoption and stated that the amendment is just a way for landowners to get rid of nuisance javelinas. The department disagrees with the comment and responds that there are already methods for receiving permits for the removal of nuisance wildlife. The amendment as adopted is intended to provide tools to landowners interested in managing javelina populations. No changes were made as a result of the comments.
Two commenters opposed adoption and stated that it would lead to more paperwork. The department disagrees with the comment and responds that although a written wildlife management plan is required to qualify for enhanced harvest opportunity, the department does not regard that requirement as onerous and there is no additional paperwork required. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the javelina population isn't in any danger, the amendment imposes unnecessary restrictions. The department disagrees with the comment and responds that department data indicates a downward population trend for javelinas in some parts of their range. Removing all restrictions to javelina harvest would be irresponsible and would lead to depletion of the resource. No changes were made as a result of the comment.
One commenter opposed adoption and stated that hunter access is the key to managing a javelina herd and increasing the overall number of hunters to provide funding for the department. The department disagrees with the comment and responds that the amendment as adopted is intended only to provide landowners with tools to manage wildlife populations; the decision to provide hunting opportunity rests entirely with the landowner. No changes were made as a result of the comment.
One commenter opposed adoption and stated that more study is needed. The department agrees with the comment, but disagrees that the amendment as adopted is unsupported by biological science. The careful management of harvest, based on sound and accepted tenets of habitat and population management, is the objective of the amendment as adopted. No changes were made as a result of the comment.
One commenter opposed adoption and stated that indiscriminate killing would not help the javelina population. The department agrees with the comment and responds that the amendment as adopted will not allow indiscriminate harvest. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the managed lands system just drives the costs upward. The department disagrees with the comment and responds that better management has a number of results. While it is true that a higher quality of hunting experience could be more marketable, it also true that more numerous wildlife present landowners with the opportunity for additional income. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the amendment would shrink hunting opportunity for the general public because landowners would be able to control javelina populations by themselves. The department disagrees with the comment and responds that the amendment is not intended for javelina control, but javelina management. It is up to the landowner to decide how best to meet their management goals. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the department's statement that javelina populations are experiencing a downward trend is contradicted by increasing quotas and bag limits. The commenter also stated that javelina would not be taken by biologically acceptable methods and that the amendment would allow the killing of all javelinas. The commenter also stated that Choke Canyon State Park does not report the harvest of javelina and that the department is trying to extinguish the javelina population there. The department disagrees with the comment and responds that under the amendment as adopted, properties with an approved management plan will be given an annual quota, based on harvest, population, and habitat information for that specific property. The department also responds that no provision of the amendment authorizes any means or methods other than those that are currently lawful, and that because harvest quotas are driven by sustainability and must be in order to avoid depletion of the resource, the amendment as adopted will not result in the mortality of the entire javelina population, locally or regionally. The department further notes that department records indicate that 16 javelinas have been taken on Choke Canyon State Park since 2001, and that javelina populations on the park are stable and within historic levels. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the department is reducing the game animal status of javelina and has no realistic idea as to either numbers of javelina in any region or javelina harvest. The commenter stated that the department also has no realistic idea of the range of javelinas in Texas, because reports of javelina populations in areas where they are not reported have been confirmed by eyewitness sightings and photos. The department disagrees with the comment and responds that the javelina's status as a game animal is determined by the legislature and cannot be rescinded by the department. The department also responds that although the department does not conduct discrete population surveys specifically for javelina, formal and informal indices (such as hunter surveys, locker plant checks, stem counts, landowner data) are used by department biologists to determine coarse-level estimates of the health of javelina populations, including evidence of range expansion and population increases. No changes were made as a result of the comment.
One commenter opposed adoption and stated that there are too many javelina in the state and they should be treated like feral hogs. The department disagrees with the comment and responds that the javelina is a game animal and by law (Parks and Wildlife Code, §61.055) the department must amend or revoke rules in order to avoid depletion or waste. No changes were made as a result of the comment.
One commenter opposed adoption and stated that instead of hunting javelina where they are abundant, excess populations should be relocated to other areas. The department disagrees with the comment and responds that javelina exhibit a unique social organization by family groups. Individuals that are trapped and relocated will not survive being separated from their family groups. Similarly, family groups that are disrupted by major perturbations such as the trapping of numerous individuals do not fare well. For theses reasons, trapping and relocation of javelinas is not appropriate or effective. No changes were made as a result of the comment.
The department received 62 comments supporting adoption of the proposed amendment.
The department received 17 comments opposing adoption of the proposed amendment that would eliminated the 'double tagging' requirement for antlerless mule deer taken under an Antlerless Mule Deer Permit. Of the 17 comments, two stated a rationale or explanation for opposition. Those comments, accompanied by the agency's response to each, are as follows.
One commenter opposed adoption and stated that the amendment would allow large land owners to harvest more deer than could be harvested by hunters under normal circumstances. The department disagrees with the comment and responds that the amendment as adopted will not authorize additional harvest beyond that currently allowed. The amendment would simply save hunters from having to attach multiple documents bearing the same information to a harvested deer. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the amendment was an attempt to limit the number of hunters while maintaining or increasing the deer harvest. The department disagrees with the comment and responds that the amendment as adopted will not authorize additional harvest beyond that currently allowed. The amendment would simply save hunters from having to attach multiple documents bearing the same information to a harvested deer. No changes were made as a result of the comment.
The department received 59 comments supporting adoption of the proposed amendment.
The department received 40 comments opposing adoption of the proposed amendment that would require taxidermists to retain records for two years from the time a specimen is claimed. Of the 40 comments, eight stated a rationale or explanation for opposition. Those comments, accompanied by the agency's response to each, are as follows.
Four commenters opposed adoption and stated that the amendment would cause more work for taxidermists, which would result in higher prices for the consumer. The department disagrees with the comment and responds that the amendment as adopted does not create or increase administrative costs for taxidermists, it simply creates a new timeline for the retention of records that are already required under current law. No changes were made as a result of the comment.
One commenter opposed adoption and stated that taxidermists should have to file monthly reports. The department disagrees with the comment and responds that the administrative costs to the department and to taxidermists of monthly reporting would be prohibitive. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the amendment is micromanagement and just another way for the state to make money. The department disagrees with the comment and responds that the only effect of the amendment as adopted is to create a new timeline for the retention of records that are already required under current law. The department also notes that there are no fees or charges imposed by the department upon taxidermists. No changes were made as a result of the comment.
One commenter opposed adoption and stated that in return for a minimal benefit for law enforcement, taxidermists would be burdened with more paperwork and longer record retention requirements. The department disagrees with the comment and responds that the amendment as adopted does not create or increase administrative costs for taxidermists and it does not lengthen the record retention requirements. No changes were made as a result of the comment.
One commenter opposed adoption and stated that more paperwork is unnecessary. The department agrees with the comment and responds that the amendment as adopted does not create or increase administrative costs for taxidermists. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the amendment is a waste of time for all concerned because the state should be able to prove the legality of take within two years, taxidermists do not need additional extensive paperwork, and it makes just one more thing a hunter has to fill out. The department disagrees with the comment and responds that under current rule, an unscrupulous person, upon being asked to provide documentation accompanying a specimen, could claim that the taxidermy had been completed more than two years previously and therefore the required documentation had been discarded. As adopted the amendment would require the taxidermist to retain records not from the completion of taxidermy, but from the time the customer claims the specimen. The department also responds that the amendment as adopted does not create or increase administrative costs for taxidermists and does not impose any additional documentation requirements on hunters.
The department received 71 comments supporting adoption of the proposed amendment.
The department received 23 comments opposing adoption of the proposed amendment that would extend for one year the provision allowing the take of catfish by lawful archery equipment. Of the 23 comments, nine stated a rationale or explanation for opposition. Those comments, accompanied by the agency's response to each, are as follows.
Four commenters opposed adoption and stated that there were enough rough fish for bowfishermen and no need to take game fish. The department disagrees with the comment and responds that there is no statutory provision that restricts archers to nongame fish, and since overall angler effort with respect to archery equipment does not appear to exert a significant additive impact on total harvest, there is no danger of depletion or waste. No changes were made as a result of the comment.
One commenter opposed adoption and stated that catfish needed protection, that catch-and-release isn't possible for fish taken by archery, that the amendment would lead to poaching, and that bowfishing is too easy. The department disagrees with the comment and responds that it is incumbent upon any person who goes fishing to understand and follow the regulations; since catfish are protected by bag and length limits, anglers will have to use judgment and care in deciding which fish to kill. The department also responds that there is no causal connection between the amendment and poaching, noting that poaching is a conscious decision to disregard the law. The department further notes that ease of use of a particular taking device is irrelevant, since catfish are protected by size and bag limits. No changes were made as a result of the comment.
One commenter opposed adoption and stated that it is too difficult to determine the size and length of a fish when it is underwater. The department agrees with the comment but also notes that it is incumbent upon any person who goes fishing to understand and follow the regulations; since catfish are protected by bag and length limits, anglers will have to use judgment and care in deciding which fish to kill. No changes were made as a result of the comment.
One commenter opposed adoption and stated that catfish should not be treated like gar. The department disagrees with the comment and responds that catfish remain protected by size and bag limits. No changes were made as a result of the comment.
One commenter opposed adoption and stated that wounding loss does not justify allowing the take of a valuable game fish. The department disagrees with the comment and responds that under Parks and Wildlife Code, §66.011, it is an offense to leave edible fish taken in the public waters of the state to die. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the majority of Texans who commented on this proposal when it was originally proposed were against the regulation then, but it was adopted as a personal agenda of one commissioner. The commenter also stated that the regulation has no merit and should be discontinued. The department disagrees with the comment and responds that the biological impact of the amendment upon catfish populations is believed to be minimal, based on the low numbers of people using crossbows to take catfish. Public comment is used by the commission to gauge the attitude of user groups and concerned parties as part of the overall deliberative process. However, consistency with statute and policy sometimes conflict with popular opinion. The amendment is consistent with the commission's policy to provide the greatest opportunity possible for the public to participate in angling. The department has determined that in allowing crossbows for the take of catfish, the danger of waste or depletion of the resource is negligible. Therefore, the department believes that the rule is justifiable. No changes were made as a result of the comment.
The department received 189 comments supporting adoption of the proposed amendment.
The Texas BASS Angler Federation opposed adoption of the proposed amendment.
The department received 15 comments opposing adoption of the amendment that would alter the possession limit for striped bass on Lake Texoma. Of the 15 comments, four stated a rationale or explanation for opposition. Those comments, accompanied by the agency's response to each, are as follows.
Two commenters opposed adoption and stated that the entire lake should have a single regulation. The department agrees with the comment but responds that the commission does not have the authority to unilaterally impose regulations on Lake Texoma, which is a shared water body with Oklahoma. No changes were made as a result of the comment.
One commenter opposed adoption and stated that 10 striped bass is a sufficient bag limit. The department disagrees with the comment and responds that 20-fish limit is not believed to be a threat to striped bass populations and is partially consistent with Oklahoma regulations currently in effect. No changes were made as a result of the comment.
The department received 91 comments supporting adoption of the proposed amendment.
The department received 3,667 comments concerning adoption of the amendments to §65.72 that affected coastal fisheries resources. Of the 3,667 comments 1,205 opposed all or part of the proposals.
The department received eight comments opposing adoption of the portion of the amendment affecting red snapper rules. Two commenters provided a specific reason or rationale for opposing adoption. Those comments, accompanied by the agency's response follow.
One commenter opposed adoption and stated that the minimum size limit should be eliminated and that fishermen should be allowed to keep the first four fish they catch. The agency disagrees with the comment and responds that the purpose of a minimum size limit is to protect young fish to age at first spawn or to maximize yield per recruit. Although the department recognizes that hooking mortality does occur, studies have proven that the return of undersize fish to the water will result in the survival of some percentage of those fish. In addition, current modeling of this type of change in regulation indicates that due to larger catches of smaller fish under this scenario and uncertainty caused by angler behavior there does not appear to be biological benefits associated with the proposed change to 13 inches. The department also notes that there is no way for law enforcement personnel to determine that any four fish were the first four fish caught by an angler, and that a "first fish" rule would allow anglers to replace previously caught fish with larger fish. No changes were made as a result of the comment.
One commenter opposed adoption of the amendment and stated that it should not apply to anglers on head boats. The agency disagrees with the comment for the same reasons stated in the comment above and because the agent of take is immaterial, be it a commercial or recreational angler or various fishing types or platforms used by either of these fishing sectors. No changes were made as a result of the comment.
The department received 34 comments supporting adoption of the portion of the proposed amendment affecting red snapper.
The department received 12 comments opposing adoption of the portion of the proposed amendment that would have implemented a catch-and-release fishery for tarpon. All 12 commenters stated a preference for retaining bag and minimum size limits rather than a catch-and-release fishery. The agency agrees with the comments and responds that while other states and fishing organizations have successfully adopted catch-and-release rules for tarpon, Texas Parks and Wildlife Department believes that setting a minimum size limit that corresponds to the current state record adequately protects the tarpon population at this time. Therefore, the rule as adopted retains the current daily bag limit of one tarpon, but imposes an 85-inch minimum length limit in place of the current 80-inch limit.
The department received four comments opposing adoption of the proposed amendment to §65.72 that created new definitions for "charter vessel" and "head boat." Of the four comments, one stated a rationale or explanation for opposition. That comment, accompanied by the agency's response, follows.
One commenter opposed adoption of the proposed definition of "charter boat" and stated that the captain of a charter vessel should be allowed to carry as many passengers as desired. The agency disagrees with the comment and responds that a boat captain may carry as many passengers as safety permits, but carrying more than six passengers requires a different United States Coast Guard operator's license and requires the vessel to meet additional requirements under federal regulation. It is precisely this difference that is addressed by the proposed amendment. No changes were made as a result of the comment.
The department received 21 comments supporting the adoption of the portion of the proposed amendment affecting the definitions of charter boat and head boat.
The department received 1,137 comments opposing adoption of the portion of the proposed amendment that affects spotted seatrout rules.
The department received 1,112 comments opposing the restriction of lower bag limits for spotted seatrout to the Lower Laguna Madre (LLM). The commenters stated that the bag limit reduction should apply to all coastal waters. The agency disagrees with the comments and responds that the rules were proposed specifically for the LLM because that is the only portion of Texas waters where spawning, fry, and fingerlings are adequate, yet age cohorts are not entering the breeding population in sufficient numbers to prevent a decline in spawning stock biomass. The proposed five fish per day bag and possession limits were specifically designed to address the population problem in the LLM; thus, it would be inappropriate to impose those limitations in waters where the problem does not occur. No changes were made as a result of the comment.
The department received 707 comments opposing the reduction of spotted seatrout bag limits for the LLM. The commenters stated that the population problems in the LLM are being caused by poor water quality resulting from siltation of the Port Mansfield channel, and that these deficiencies should be addressed before applying limits to anglers. The agency disagrees with the comment and responds that the decline in spawning stock biomass began in 1988. The Port Mansfield channel was subjected to dredging every two years, ending in 1999. During this 11-year period, spawning stock biomass decline continued unabated and the trend in this population parameter did not change with the disruption in the dredging schedule. Also, the Port Mansfield channel is but one of the channels through which water is exchanged with other water bodies (e.g., Gulf of Mexico and the Upper Laguna Madre), and while the jetties are difficult to navigate in a vessel, water and fish continue to use the pass, as well as the north cut leading to the Upper Laguna Madre and the Brazos Santiago Pass between South Padre Island and Brazos Island leading to the Gulf of Mexico. If the siltation of the Port Mansfield channel produced declines in water quality sufficient to impact spotted seatrout populations, it clearly would have been reflected in the populations of other fish species in that bay. Populations of Atlantic croaker and white and striped mullet demonstrate opposite trends from those of spotted seatrout. Also, the department is unaware of any environmental problem other than fishing pressure that affects only larger spotted seatrout, while not affecting younger and smaller fish. Also, the department has no regulatory authority over channel dredging. No changes were made as a result of the comments.
One commenter opposed adoption and stated that the current slot limit of 15-25 inches should be changed to 14-24 inches for all waters. The agency disagrees with the comment and responds that various permutations of bag and size limits were investigated, but the bag limit reduction was chosen because it appeared to provide greater benefits (impacts) to the spawning stock biomass and was most likely to lead to a timely recovery of the stock to historical levels.
One commenter opposed adoption of the portion of the amendment that made the possession limit and the daily bag limit identical. The agency disagrees with the comment and responds that the purpose of making the possession limit and the bag limit the same is to reduce harvest pressure on the population. With the traditional possession limit of twice the daily bag limit, an unscrupulous angler could claim to have been on the water for two days when in fact they had not, making enforcement of the five-fish limit in the LLM more difficult. No changes were made as a result of the comment.
One commenter opposed adoption and stated that instead of reducing bag or possession limits, the department should increase law enforcement activity in the LLM and use equipment seizure as an enforcement tool. The agency disagrees with the comment and responds that the documented downward trends in spawning biomass of the spotted seatrout population in the LLM are demonstrably the result of intensive recreational fishing effort and not illegal fishing activity. The department maintains an active law enforcement presence in the LLM and believes that any declines are the cumulative results of all fishing mortalities. The department believes that the fishery cannot withstand the increased level of fishing mortality under the current bag limit. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the department used inadequate and flawed scientific data to evaluate the LLM spotted seatrout fishery. The agency disagrees with the comment and responds that department datasets were developed from 2,926 angler survey days (during which 32,930 anglers were interviewed); 4,628 individual bag seine surveys; 2,640 individual trawl samples; and 1,980 gill net surveys. The surveys are based on a random sampling program begun in the mid-1970s and which has been continually reviewed and reevaluated since that time. Additionally, sampling protocols are audited on an annual basis to insure quality control of sampling. Further, the department's sampling protocols and analytical methodologies were reviewed by the Texas Academy of Sciences and the American Fisheries Society from 2002-2004. The reviews were not only favorable, but suggested that this sampling protocol could serve as a model for other states. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the proposal was flawed because it was based on hypothetical models designed to project the potential results of the amendment. The commenter also stated that, similar to hypothetical models that predicted reductions in harvest that could result from removing fishing guide limits (which the commenter stated resulted in no change at all), the proposed amendment would produce little in the way of positive results in the spotted seatrout population. The agency disagrees with the comment and responds that the data illustrating the effects of increasing the rate of removal of larger fish is based on the long-term fishery dependent (gill net) sampling. The decline is not a result of the model, but a reflection of the actual downward trend in fisheries-independent data for larger size classes. The agency further responds that while the commenter was accurate in stating that hypothetical modeling was used to predict the impact of removing fishing guide limits on harvest, the results of that change did not, as was alleged, result in no change. Based on creel samples, the result of the rule change was a reduction of fish-per-boat averages for guided trips. No changes were made as a result of the comment.
The Recreational Fishing Alliance, Lower Laguna Madre Foundation, South Padre Island Chamber of Commerce, Coastal Bend Bays and Estuaries Program, Inc., and the Coastal Bend Bays Foundation commented in support of adoption of the proposed amendment that implements regional regulations for spotted seatrout.
The Port Mansfield Chamber of Commerce, Coastal Bend Guides Association, and Horizon Outfitters, commented against adoption of the proposed amendment that implements regional regulations for spotted seatrout.
The Coastal Conservation Association commented in support of adoption of all proposed regulations affecting saltwater angling.
The Texas Wildlife Association commented in support of adoption of the proposed amendments.
Division 1. GENERAL PROVISIONS
31 TAC §§65.3, 65.9, 65.10, 65.25, 65.34
The amendments are adopted under the authority of Parks and Wildlife Code, Chapter 61, which requires the commission to regulate the periods of time when it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in this state; the means, methods, and places in which it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in this state; the species, quantity, age or size, and, to the extent possible, the sex of the game animals, game birds, or aquatic animal life authorized to be hunted, taken, or possessed; and the region, county, area, body of water, or portion of a county where game animals, game birds, or aquatic animal life may be hunted, taken, or possessed; §42.017, which authorizes the commission to modify or eliminate the tagging requirements of §§42.018, 42.0185, or 42.020, or other similar tagging requirements in Chapter 42; and §67.004, which requires the commission to establish any limits on the taking, possession, propagation, transportation, importation, exportation, sale, or offering for sale of nongame fish or wildlife that the department considers necessary to manage the species.
§65.3.Definitions.
The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. All other words and terms in this chapter shall have the meanings assigned in the Texas Parks and Wildlife Code.
(1) Agent--A person authorized by a landowner to act on behalf of the landowner. For the purposes of this chapter, the use of the term "landowner" also includes the landowner's agent.
(2) Alligator gig--A pole or staff equipped with at least one of the following:
(A) immovable prongs;
(B) two or more spring-loaded grasping arms; or
(C) a detachable head.
(3) Alligator hide tag (hide tag)--A department-issued tag required by federal law pursuant to the Convention on International Trade in Endangered Species (CITES) to be affixed to all alligators taken in the state. All alligator hide tags issued by the department are CITES tags.
(4) Annual bag limit--The quantity of a species of a wildlife resource that may be taken from September 1 of one year to August 31 of the following year.
(5) Antlerless deer--A deer having no hardened antler protruding through the skin.
(6) Antler point--A projection that extends at least one inch from the edge of a main beam or another tine. The tip of a main beam is also a point.
(7) Artificial lure--Any lure (including flies) with hook or hooks attached that is man-made and is used as a bait while fishing.
(8) Bait--Something used to lure any wildlife resource.
(9) Baited area--Any area where minerals, vegetative material or any other food substances are placed so as to lure a wildlife resource to, on, or over that area.
(10) Bearded hen--A female turkey possessing a clearly visible beard protruding through the feathers of the breast.
(11) Buck deer--A deer having a hardened antler protruding through the skin.
(12) Cast net--A net which can be hand-thrown over an area.
(13) Charter Vessel--A vessel less than 100 gross tons that meets the requirements of the U.S. Coast Guard to carry six or fewer passengers for hire and that carries a passenger for hire at any time during the calendar year. A charter vessel with a commercial permit is considered to be operating as a charter vessel when it carries a passenger who pays a fee or when there are more then three persons aboard, including operator and crew.
(14) Circle hook--A hook originally designed and manufactured so that the point of the hook is turned perpendicularly back toward the shank of the hook to form a generally circular or oval shape.
(15) Coastal waters boundary--All public waters east and south of the following boundary are considered saltwater: Beginning at the International Toll Bridge in Brownsville, thence northward along U.S. Highway 77 to the junction of Paredes Lines Road (F.M. Road 1847) in Brownsville, thence northward along F.M. Road 1847 to the junction of F.M. Road 106 east of Rio Hondo, thence westward along F.M. Road 106 to the junction of F.M. Road 508 in Rio Hondo, thence northward along F.M. Road 508 to the junction of F.M. Road 1420, thence northward along F.M. Road 1420 to the junction of State Highway 186 east of Raymondville, thence westward along State Highway 186 to the junction of U.S. Highway 77 near Raymondville, thence northward along U.S. Highway 77 to the junction of the Aransas River south of Woodsboro, thence eastward along the south shore of the Aransas River to the junction of the Aransas River Road at the Bonnie View boat ramp; thence northward along the Aransas River Road to the junction of F.M. Road 629; thence northward along F.M. Road 629 to the junction of F.M. Road 136; thence eastward along F.M. Road 136 to the junction of F.M. Road 2678; then northward along F.M. Road 2678 to the junction of F.M. Road 774 in Refugio, thence eastward along F.M. Road 774 to the junction of State Highway 35 south of Tivoli, thence northward along State Highway 35 to the junction of State Highway 185 between Bloomington and Seadrift, thence northwestward along State Highway 185 to the junction of F.M. Road 616 in Bloomington, thence northeastward along F.M. Road 616 to the junction of State Highway 35 east of Blessing, thence southward along State Highway 35 to the junction of F.M. Road 521 north of Palacios, thence northeastward along F.M. Road 521 to the junction of State Highway 36 south of Brazoria, thence southward along State Highway 36 to the junction of F.M. Road 2004, thence northward along F.M. Road 2004 to the junction of Interstate Highway 45 between Dickinson and La Marque, thence northwestward along Interstate Highway 45 to the junction of Interstate Highway 610 in Houston, thence east and northward along Interstate Highway 610 to the junction of Interstate Highway 10 in Houston, thence eastward along Interstate Highway 10 to the junction of State Highway 73 in Winnie, thence eastward along State Highway 73 to the junction of U.S. Highway 287 in Port Arthur, thence northwestward along U.S. Highway 287 to the junction of Interstate Highway 10 in Beaumont, thence eastward along Interstate Highway 10 to the Louisiana State Line. The waters of Spindletop Bayou inland from the concrete dam at Russels Landing on Spindletop Bayou in Jefferson County; public waters north of the dam on Lake Anahuac in Chambers County; the waters of Taylor Bayou and Big Hill Bayou inland from the saltwater locks on Taylor Bayou in Jefferson County; Lakeview City Park Lake, West Guth Park Pond, and Waldron Park Pond in Nueces County; Galveston County Reservoir and Galveston State Park ponds #1-7 in Galveston County; Lake Burke-Crenshaw and Lake Nassau in Harris County; Fort Brown Resaca, Resaca de la Guerra, Resaca de la Palma, Resaca de los Cuates, Resaca de los Fresnos, Resaca Rancho Viejo, and Town Resaca in Cameron County; and Little Chocolate Bayou Park Ponds #1 and #2 in Calhoun County are not considered coastal waters for purposes of this subchapter.
(16) Community fishing lake--All public impoundments 75 acres or smaller located totally within an incorporated city limits or a public park, and all impoundments of any size lying totally within the boundaries of a state park.
(17) Crab line--A baited line with no hook attached.
(18) Daily bag limit--The quantity of a species of a wildlife resource that may be lawfully taken in one day.
(19) Day--A 24-hour period of time that begins at midnight and ends at midnight.
(20) Deer population data--Results derived from deer population surveys and/or from systematic data analysis of density or herd health indicators, such as browse surveys or other scientifically acceptable data, that function as direct or indirect indicators of population density.
(21) Dip net--A mesh bag suspended from a frame attached to a handle.
(22) Final processing--The cleaning of a dead wildlife resource for cooking or storage purposes. For a deer or antelope carcass, the term includes the processing of the animal more than by quartering.
(23) Fish--
(A) Game fish--Blue catfish, blue marlin, broadbill swordfish, brown trout, channel catfish, cobia, crappie (black and white), flathead catfish, Guadalupe bass, king mackerel, largemouth bass, longbill spearfish, pickerel, red drum, rainbow trout, sailfish, sauger, sharks, smallmouth bass, snook, Spanish mackerel, spotted bass, spotted seatrout, striped bass, tarpon, tripletail, wahoo, walleye, white bass, white marlin, yellow bass, and hybrids or subspecies of the species listed in this subparagraph.
(B) Non-game fish--All species not listed as game fish, except endangered and threatened fish, which are defined and regulated under separate proclamations.
(24) Fishing--Taking or attempting to take aquatic animal life by any means.
(25) Fish length--That straight-line measurement (while the fish is lying on its side) from the tip of the snout (jaw closed) to the extreme tip of the tail when the tail is squeezed together or rotated to produce the maximum overall length.
(26) Fish species names--The names of fishes are those prescribed by the American Fisheries Society in the most recent edition of "A List of Common and Scientific Names of Fishes from The United States, Canada and Mexico."
(27) Fishing guide--A person who, for compensation, accompanies, assists, or transports a person or persons engaged in fishing in the water of this state.
(28) Fishing guide deck hand--A person in the employ of a fishing guide who assists in operating a boat for compensation to accompany or to transport a person or persons engaged in fishing in the water of this state.
(29) Folding panel trap--A metallic or non-metallic mesh trap, the side panels hinged to fold flat when not in use, and suspended in the water by multiple lines.
(30) Fully automatic firearm--Any firearm that is capable of firing more than one cartridge in succession by a single function of the trigger.
(31) Gaff--Any hand-held pole with a hook attached directly to the pole.
(32) Gear tag--A tag constructed of material as durable as the device to which it is attached. The gear tag must be legible, contain the name and address of the person using the device, and, except for saltwater trotlines and crab traps, the date the device was set out.
(33) Gig--Any hand-held shaft with single or multiple points.
(34) Headboat--A vessel that holds a valid Certificate of Inspection issued by the U.S. Coast Guard to carry passengers for hire. A headboat with a commercial vessel permit is considered to be operating as a headboat when it carries a passenger who pays a fee or, in the case of persons aboard fishing for or possessing coastal migratory fish or Gulf reef fish, when there are more than three persons aboard, including operator and crew.
(35) Inside waters--All bays, inlets, outlets, passes, rivers, streams, and other bodies of water landward from the shoreline of the state along the Gulf of Mexico and contiguous to, or connected with, but not a part of, the Gulf of Mexico and within which the tide regularly rises and falls.
(36) Jug line--A fishing line with five or less hooks tied to a free-floating device.
(37) Lawful archery equipment--Longbow, recurved bow, and compound bow.
(38) License year--The period of time for which an annual hunting or fishing license is valid.
(39) Muzzleloader--Any firearm that is loaded only through the muzzle.
(40) Natural bait--A whole or cut-up portion of a fish or shellfish or a whole or cut-up portion of plant material in its natural state, provided that none of these may be altered beyond cutting into portions.
(41) Permanent residence--One's principal or ordinary home or dwelling place. This does not include a temporary abode or dwelling such as a hunting/fishing club, or any club house, cabin, tent, or trailer house used as a hunting/fishing club, or any hotel, motel, or rooming house used during a hunting, fishing, pleasure, or business trip.
(42) Pole and line--A line with hook, attached to a pole. This gear includes rod and reel.
(43) Possession limit--The maximum number of a wildlife resource that may be lawfully possessed at one time.
(44) Purse seine (net)--A net with flotation on the corkline adequate to support the net in open water without touching bottom, with a rope or wire cable strung through rings attached along the bottom edge to close the bottom of the net.
(45) Sail line--A type of trotline with one end of the main line fixed on the shore, the other end of the main line attached to a wind-powered floating device or sail.
(46) Sand Pump--A self-contained, hand-held, hand-operated suction device used to remove and capture Callianassid ghost shrimp (Callichirus islagrande, formerly Callianassa islagrande) from their burrows.
(47) Seine--A section of non-metallic mesh webbing, the top edge buoyed upwards by a floatline and the bottom edge weighted.
(48) Silencer or sound-suppressing device--Any device that reduces the normal noise level created when the firearm is discharged or fired.
(49) Spear--Any shaft with single or multiple points, barbed or barbless, which may be propelled by any means, but does not; include arrows.
(50) Spear gun--Any hand-operated device designed and used for propelling a spear, but does not include the crossbow.
(51) Spike-buck deer--A buck deer with no antler having more than one point.
(52) Throwline--A fishing line with five or less hooks and with one end attached to a permanent fixture. Components of a throwline may also include swivels, snaps, rubber and rigid support structures.
(53) Trap--A rigid device of various designs and dimensions used to entrap aquatic life.
(54) Trawl--A bag-shaped net which is dragged along the bottom or through the water to catch aquatic life.
(55) Trotline--A nonmetallic main fishing line with more than five hooks attached and with each end attached to a fixture.
(56) Umbrella net--A non-metallic mesh net that is suspended horizontally in the water by multiple lines attached to a rigid frame.
(57) Unbranched antler--An antler having no more than one antler point.
(58) Upper-limb disability--A permanent loss of the use of fingers, hand or arm in a manner that renders a person incapable of using a longbow, compound bow or recurved bow.
(59) Wildlife resources--Alligators, all game animals, all game birds, and aquatic animal life.
(60) Wounded deer--A deer leaving a blood trail.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June 28, 2007.
TRD-200702727
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Effective date: July 18, 2007
Proposal publication date: March 2, 2007
For further information, please call: (512) 389-4775
The amendments are adopted under the authority of Parks and Wildlife Code, Chapter 61, which requires the commission to regulate the periods of time when it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in this state; the means, methods, and places in which it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in this state; the species, quantity, age or size, and, to the extent possible, the sex of the game animals, game birds, or aquatic animal life authorized to be hunted, taken, or possessed; and the region, county, area, body of water, or portion of a county where game animals, game birds, or aquatic animal life may be hunted, taken, or possessed; §42.017, which authorizes the commission to modify or eliminate the tagging requirements of §§42.018, 42.0185, or 42.020, or other similar tagging requirements in Chapter 42; and §67.004, which requires the commission to establish any limits on the taking, possession, propagation, transportation, importation, exportation, sale, or offering for sale of nongame fish or wildlife that the department considers necessary to manage the species.
§65.64.Turkey.
(a) The annual bag limit for Rio Grande and Eastern turkey, in the aggregate, is four, no more than one of which may be an Eastern turkey.
(b) Rio Grande Turkey. The open seasons and bag limits for Rio Grande turkey shall be as follows.
(1) Fall seasons and bag limits:
(A) In Aransas, Atascosa, Bee, Calhoun, Cameron, Dimmit, Duval, Frio, Hidalgo, Jim Hogg, Jim Wells, Kinney (south of U.S. Highway 90), LaSalle, Live Oak, Maverick, McMullen, Medina (south of U.S. Highway 90), Nueces, Refugio, San Patricio, Starr, Uvalde (south of U.S. Highway 90), Val Verde (in that southeastern portion located both south of U.S. Highway 90 and east of Spur 239), Webb, Zapata, and Zavala counties, there is a fall general open season.
(i) Open season: first Saturday in November through the third Sunday in January.
(ii) Bag limit: four turkeys, gobblers or bearded hens.
(B) In Brooks, Kenedy, Kleberg, and Willacy counties, there is a fall general open season.
(i) Open season: first Saturday in November through the last Sunday in February.
(ii) Bag limit: four turkeys, either sex.
(C) In Archer, Armstrong, Bandera, Baylor, Bell, Bexar, Blanco, Borden, Bosque, Briscoe, Brown, Burnet, Callahan, Carson, Childress, Clay, Coke, Coleman, Collingsworth, Comal, Comanche, Concho, Cooke, Coryell, Cottle, Crane, Crockett, Crosby, Dawson, Denton, Dickens, Donley, Eastland, Ector, Edwards, Erath, Fisher, Floyd, Foard, Garza, Gillespie, Glasscock, Goliad, Gonzales, Gray, Hall, Hamilton, Hardeman, Hartley, Haskell, Hays, Hemphill, Hill, Hood, Howard, Hutchinson, Irion, Jack, Johnson, Jones, Karnes, Kendall, Kent, Kerr, Kimble, King, Kinney (north of U.S. Highway 90), Knox, Lipscomb, Lampasas, Llano, Lynn, Martin, Mason, McCulloch, McLennan, Medina (north of U.S. Highway 90), Menard, Midland, Mills, Mitchell, Montague, Moore, Motley, Nolan, Ochiltree, Oldham, Palo Pinto, Parker, Pecos, Potter, Randall, Reagan, Real, Roberts, Runnels, Sutton, San Saba, Schleicher, Scurry, Shackelford, Somervell, Stephens, Sterling, Stonewall, Swisher, Tarrant, Taylor, Terrell, Throckmorton, Tom Green, Travis, Upton, Uvalde (north of U.S. Highway 90), Ward, Wheeler, Wichita, Wilbarger, Williamson, Wilson, Wise, Val Verde (that portion located north of U.S. Highway 90; and that portion located both south of U.S. Highway 90 and west of Spur 239), and Young counties, there is a fall general open season.
(i) Open season: first Saturday in November through the first Sunday in January.
(ii) Bag limit: four turkeys, either sex.
(2) Archery-only season and bag limits. In all counties where there is a general fall season for turkey there is an open season during which turkey may be taken only as provided for in §65.11(2) and (3) of this title (relating to Means and Methods).
(A) Open season: from the Saturday closest to September 30 for 35 consecutive days.
(B) Bag limit: in any given county, the annual bag limit is as provided by this section for the fall general season in that county.
(3) Spring season and bag limits.
(A) In Archer, Armstrong, Baylor, Bell, Borden, Bosque, Briscoe, Brown, Burnet, Callahan, Carson, Childress, Clay, Coke, Coleman, Collingsworth, Comanche, Concho, Cooke, Coryell, Cottle, Crane, Crosby, Dawson, Denton, Dickens, Donley, Eastland, Ector, Ellis, Erath, Fisher, Floyd, Foard, Garza, Glasscock, Gray, Hall, Hamilton, Hardeman, Hartley, Haskell, Hemphill, Hill, Hood, Howard, Hutchinson, Irion, Jack, Johnson, Jones, Kent, King, Knox, Lampasas, Lipscomb, Llano, Lynn, Martin, Mason, McCulloch, McLennan, Menard, Midland, Mills, Mitchell, Montague, Moore, Motley, Nolan, Ochiltree, Oldham, Palo Pinto, Parker, Potter, Randall, Reagan, Roberts, Runnels, San Saba, Schleicher, Scurry, Shackelford, Somervell, Stephens, Sterling, Stonewall, Swisher, Tarrant, Taylor, Throckmorton, Tom Green, Travis, Upton, Ward, Wheeler, Wichita, Wilbarger, Williamson, Wise, and Young counties, there is a spring general open season.
(i) Open season: Saturday closest to April 1 for 44 consecutive days.
(ii) Bag limit: four turkeys, gobblers only.
(B) In Aransas, Atascosa, Bandera, Bee, Bexar, Blanco, Brewster, Brooks, Calhoun, Cameron, Comal, Crockett, DeWitt, Dimmit, Duval, Edwards, Frio, Gillespie, Goliad, Gonzales, Guadalupe, Hays, Hidalgo, Jeff Davis, Jim Hogg, Jim Wells, Karnes, Kendall, Kenedy, Kerr, Kimble, Kinney, Kleberg, LaSalle, Live Oak, Maverick, McMullen, Medina, Nueces, Pecos, Real, Refugio, San Patricio, Starr, Sutton, Terrell, Uvalde, Val Verde, Victoria, Webb, Willacy, Wilson, Zapata, and Zavala counties, there is a spring general open season.
(i) Open season: Saturday closest to March 18 for 44 consecutive days.
(ii) Bag limit: four turkeys, gobblers only.
(C) In Bastrop, Caldwell, Colorado, Fayette, Jackson, Lavaca, Lee, and Milam counties, there is a spring general open season.
(i) Open season: from April 1 through April 30.
(ii) Bag limit: one turkey, gobblers only.
(4) Special Youth-Only Seasons. Only licensed hunters 16 years of age or younger may hunt during the seasons established by this subsection.
(A) There shall be a special youth-only fall general hunting season in all counties where there is a fall general open season.
(i) open season: the weekend (Saturday and Sunday) immediately preceding the first Saturday in November, and the third weekend (Saturday and Sunday) in January.
(ii) bag limit: as specified for individual counties in paragraph (1) of this subsection.
(B) There shall be special youth-only spring general open hunting seasons for Rio Grande turkey in the counties listed in paragraph (3)(A) of this section.
(i) open seasons: the weekend (Saturday and Sunday) immediately preceding the first day of the general open spring season and the weekend (Saturday and Sunday) immediately following the close of the general open spring season.
(ii) bag limit: as specified for individual counties in paragraph (3)(A)(ii) of this subsection.
(c) Eastern turkey. The open seasons and bag limits for Eastern turkey shall be as follows. In Angelina, Bowie, Brazoria, Camp, Cass, Cherokee, Delta, Fannin, Fort Bend, Franklin, Grayson, Gregg, Hardin, Harrison, Hopkins, Houston, Hunt, Jasper, Lamar, Liberty, Marion, Matagorda, Montgomery, Morris, Nacogdoches, Newton, Panola, Polk, Rains, Red River, Rusk, Sabine, San Augustine, San Jacinto, Shelby, Smith, Titus, Trinity, Tyler, Upshur, Walker, Wharton, and Wood counties, there is a spring season during which both Rio Grande and Eastern turkey may be lawfully hunted.
(1) Open season: from April 1 for 30 consecutive days.
(2) Bag limit (both species combined): one turkey, gobbler only.
(3) In the counties listed in this subsection:
(A) it is unlawful to hunt turkey by any means other than a shotgun, lawful archery equipment, or crossbows;
(B) it is unlawful for any person to take or attempt to take turkeys by the aid of baiting, or on or over a baited area; and
(C) all turkeys harvested during the open season must be registered at designated check stations within 24 hours of the time of kill. Harvested turkeys may be field dressed but must otherwise remain intact.
(d) In all counties not listed in subsection (b) or (c) of this section, the season is closed for hunting turkey.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June 28, 2007.
TRD-200702728
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Effective date: July 18, 2007
Proposal publication date: March 2, 2007
For further information, please call: (512) 389-4775
The amendments are adopted under the authority of Parks and Wildlife Code, Chapter 61, which requires the commission to regulate the periods of time when it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in this state; the means, methods, and places in which it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in this state; the species, quantity, age or size, and, to the extent possible, the sex of the game animals, game birds, or aquatic animal life authorized to be hunted, taken, or possessed; and the region, county, area, body of water, or portion of a county where game animals, game birds, or aquatic animal life may be hunted, taken, or possessed; §42.017, which authorizes the commission to modify or eliminate the tagging requirements of §§42.018, 42.0185, or 42.020, or other similar tagging requirements in Chapter 42; and §67.004, which requires the commission to establish any limits on the taking, possession, propagation, transportation, importation, exportation, sale, or offering for sale of nongame fish or wildlife that the department considers necessary to manage the species.
§65.72.Fish.
(a) General rules.
(1) There are no public waters closed to the taking and retaining of fish, except as provided in this subchapter.
(2) Game fish may be taken only by pole and line, except as provided in this subchapter.
(3) The bag and possession limits of this subchapter do not apply to the possession or landing of fish lawfully raised under an offshore aquaculture permit issued under Chapter 57, Subchapter C of this title (relating to Introduction of Fish, Shellfish, and Aquatic Plants).
(4) It is unlawful:
(A) to take or attempt to take, or possess fish within a protected length limit, in greater numbers, by other means, or at any time or place, other than as permitted under this subchapter;
(B) while fishing on or in public waters to have in possession fish in excess of the daily bag limit or fish within a protected length limit as established for those waters;
(C) to land by boat or person any fish within a protected length limit, or in excess of the daily bag limit or possession limit established for those fish;
(D) to use game fish or any part thereof as bait, except for processed catfish heads used as crab-trap bait by a licensed crab fisherman, provided the catfish is obtained from an aquaculture facility permitted to operate in the United States. A person who uses catfish as bait under this subparagraph shall, upon the request of a department employee acting within the scope of official duties, furnish appropriate authenticating documentation, such as a bill of sale or receipt, to prove that the catfish was obtained from a legal source.
(E) to possess a finfish of any species, except broadbill swordfish, shark or king mackerel, taken from public water that has the head or tail removed until such person finally lands the catch on the mainland, a peninsula, or barrier island not including jetties or piers and does not transport the catch by boat;
(F) to use any vessel to harass fish; or
(G) to release into the public waters of this state a fish with a device or substance implanted or attached that is designed, constructed or adapted to produce an audible, visual, or electronic signal used to monitor, track, follow, or in any manner aid in the location of the released fish.
(5) Finfish tags: Prohibited Acts.
(A) No person may purchase or use more finfish (red drum) tags during a license year than the number and type authorized by the commission, excluding duplicate tags issued under Parks and Wildlife Code, §46.006.
(B) It is unlawful to:
(i) use the same finfish tag for the purpose of tagging more than one finfish;
(ii) use a finfish tag in the name of another person;
(iii) use a tag on a finfish for which another tag is specifically required;
(iv) catch and retain a finfish required to be tagged and fail to immediately attach and secure a tag, with the day and month of catch cut out, to the finfish at the narrowest part of the finfish tail, just ahead of the tail fin;
(v) have in possession both a Red Drum Tag and a Duplicate Red Drum Tag issued to the same license or salt water stamp holder;
(vi) have in possession both a Red Drum Tag or a Duplicate Red Drum Tag and a Bonus Red Drum Tag issued to the same license or salt water stamp holder;
(vii) have in possession both an Exempt Red Drum Tag and a Duplicate Exempt Red Drum Tag issued to the same license holder; or
(viii) have in possession both an Exempt Red Drum Tag or a Duplicate Exempt Red Drum Tag and a Bonus Red Drum Tag issued to the same holder.
(6) Commercial fishing seasons.
(A) The commercial seasons for finfish species listed in this paragraph and caught in Texas waters shall run concurrently with commercial seasons established for the same species caught in federal waters of the Exclusive Economic Zone (EEZ).
(B) The commercial fishing season in the EEZ will be set by the National Marine Fisheries Service for:
(i) red snapper under guidelines established by the Fishery Management Plan for Reef Fish Resources for the Gulf of Mexico. No person may land red snapper in Texas for commercial purposes unless that person is in compliance with the provisions of this clause.
(I) Requirement for Individual Fishing Quota (IFQ) vessel endorsement and allocation. No person aboard any vessel shall sell, barter, trade, or exchange red snapper; land or attempt to land red snapper for the purpose of sale, barter, trade, or exchange; or possess red snapper for the purpose of sale, barter, trade, or exchange unless the person possesses a valid federal permit for the harvest of Gulf of Mexico Reef Fish and a valid federal red snapper Individual Fishing Quota (IFQ) vessel endorsement.
(-a-) No person shall harvest or land red snapper for the purpose of sale, barter, trade, or exchange, without holding or being assigned federal IFQ allocation at least equal to the pounds of red snapper landed/docked at a shore side location.
(-b-) At-sea or dockside transfer of red snapper from one vessel to another vessel for the purpose of sale, barter, trade, or exchange, is prohibited.
(-c-) Except as provided in this subparagraph, no person shall purchase, sell, exchange, barter, or attempt to purchase, sell, exchange, or barter any red snapper in excess of any possession limit for which federal commercial license, permit, and appropriate allocation were issued.
(-d-) On the last fishing trip of the year, a vessel may exceed by 10% the remaining IFQ allocation.
(II) Offloading and transfer. During the hours from 6:00 p.m. until 6:00 a.m. (local time), no person shall offload from a vessel or receive from a vessel red snapper harvested for the purpose of sale, barter, trade, or exchange. No person who is in charge of a commercial red snapper fishing vessel shall offload red snapper from the vessel prior to three hours after proper notification is made to National Oceanographic and Atmospheric Administration (NOAA) Fisheries.
(III) Recreational limits. Persons aboard a vessel for which permits indicate both charter vessel/headboat for Gulf reef fish and commercial Gulf reef fish may retain reef fish under the recreational take and possession limits specified in subsection (b) of this section, provided the vessel is operating as a validly licensed charter vessel or headboat with prepaid recreational charter fishermen aboard the vessel.
(IV) VMS requirement. No person shall harvest red snapper for the purpose of sale, barter, trade or exchange, from a vessel unless that vessel is equipped with a fully operational and federally approved Vessel Monitoring System (VMS) device. Approved devices are those devices approved by NOAA Fisheries and operating under the requirements mandated by NOAA Fisheries.
(V) Requirement for IFQ dealer endorsement. In addition to the requirement for a federal dealer permit for Gulf reef fish, a dealer must have a federal Gulf red snapper IFQ dealer endorsement in order to receive Gulf red snapper from a commercial fishing vessel. A person aboard a vessel with a federal Gulf red snapper IFQ vessel endorsement must also have a federal Gulf red snapper IFQ dealer endorsement to sell to anyone other than a permitted dealer.
(VI) Requirement for transaction approval code. The owner or operator of a vessel landing red snapper for the purpose of sale, barter, trade, or exchange is responsible for calling National Marine Fisheries Service (NMFS) Office of Law Enforcement at least 3 hours, but no more than 12 hours, in advance of landing to report the time and location of landing and the name of the IFQ dealer where the red snapper are to be received. Failure to comply with this advance notice of landing requirement will preclude authorization to complete the required NMFS landing transaction report and, thus, will preclude issuance of the required NMFS-issued transaction approval code. Possession of red snapper for the purpose of sale, barter, trade, or exchange, from the time of transfer from a vessel through possession by a dealer is prohibited unless the red snapper are accompanied by a transaction approval code verifying a legal transaction of the amount of red snapper in possession.
(VII) Wholesale dealers. Wholesale dealers are required to comply with the provisions of Parks and Wildlife Code, §66.019, when acquiring, purchasing, possessing, and selling red snapper. Wholesale dealers shall maintain approval codes issued by NOAA Fisheries associated with all transactions of red snapper on purchases and sales on records.
(VIII) Recreational limit. All persons aboard a vessel for which no commercial vessel permit for Gulf reef fish has been issued by the National Marine Fisheries Service under the Federal Fishery Management Plan for the Gulf of Mexico Reef Fish resources are limited to the recreational bag limit specified in subsection (b) of this section for red snapper, and such fish may not be bartered or sold.
(ii) king mackerel under guidelines established by the Fishery Management Plan for Coastal Migratory Pelagic Resources of the Gulf of Mexico and South Atlantic; and
(iii) sharks (all species, their hybrids and subspecies) under guidelines established by the Fishery Management Plan for Highly Migratory Species.
(C) When federal and/or state waters are closed, it will be unlawful to:
(i) purchase, barter, trade or sell finfish species listed in this paragraph landed in this state;
(ii) transfer at sea finfish species listed in this paragraph caught or possessed in the waters of this state; and
(iii) possess finfish species listed in this paragraph in excess of the current recreational bag or possession limit in or on the waters of this state.
(7) In Brewster, Crane, Crockett, Culberson, Ector, El Paso, Jeff Davis, Hudspeth, Kinney, Loving, Pecos, Presidio, Reeves, Terrell, Upton, Val Verde, Ward, and Winkler counties, the only fishes that may be used or possessed for bait while fishing are common carp, fathead minnows, gizzard and threadfin shad, sunfish (Lepomis), goldfish, golden shiners, Mexican tetra, Rio Grande cichlid, and silversides (Atherinidae family).
(b) Bag, possession, and length limits.
(1) The possession limit does not apply to fish in the possession of or stored by a person who has an invoice or sales ticket showing the name and address of the seller, number of fish by species, date of the sale, and other information required on a sales ticket or invoice.
(2) There are no bag, possession, or length limits on game or non-game fish, except as provided in these rules.
(A) Possession limits are twice the daily bag limit on game and non-game fish except as provided in these rules.
(B) For flounder, the possession limit is the daily bag limit.
(C) Except as provided in subparagraph (D) of this paragraph, the statewide daily bag and length limits shall be as follows.
Figure: 31 TAC §65.72(b)(2)(C)
(D) Exceptions to statewide daily bag, possession, and length limits shall be as follows:
(i) Freshwater species.
Figure: 31 TAC §65.72(b)(2)(D)(i)
(ii) Saltwater species.
Figure: 31 TAC §65.72(b)(2)(D)(ii)
(iii) Bag and possession limits for black drum and sheepshead do not apply to the holder of a valid Commercial Finfish Fisherman's License.
(iv) Fish caught in federal waters in compliance with a federal fishery management plan may be landed in Texas.
(v) The bag limit for a guided fishing party is equal to the total number of persons in the boat licensed to fish or otherwise exempt from holding a license minus each fishing guide and fishing guide deckhand multiplied by the bag limit for each species harvested.
(c) Devices, means and methods.
(1) In fresh water only, it is unlawful to fish with more than 100 hooks on all devices combined.
(2) Game and non-game fish may be taken by pole and line only in:
(A) community fishing lakes;
(B) sections of rivers lying totally within the boundaries of state parks;
(C) Lake Pflugerville (Travis County);
(D) the North Concho River (Tom Green County) from O.C. Fisher Dam to Bell Street Dam; and
(E) the South Concho River (Tom Green County) from Lone Wolf Dam to Bell Street Dam.
(3) It is unlawful to take, attempt to take, or possess fish caught in public waters of this state by any device, means, or method other than as authorized in this subsection.
(4) In salt water only, it is unlawful to fish with any device that is marked with a buoy made of a plastic bottle(s) of any color or size.
(5) Device restrictions.
(A) Cast net. It is unlawful to use a cast net exceeding 14 feet in diameter.
(i) Only non-game fish may be taken with a cast net.
(ii) In salt water, non-game fish may be taken for bait purposes only.
(B) Dip net.
(i) It is unlawful to use a dip net except:
(I) to aid in the landing of fish caught on other legal devices; and
(II) to take non-game fish.
(ii) In salt water, non-game fish may be taken for bait purposes only.
(C) Gaff.
(i) It is unlawful to use a gaff except to aid in landing fish caught by other legal devices, means or methods.
(ii) Fish landed with a gaff may not be below the minimum, above the maximum, or within a protected length limit.
(D) Gig. Only non-game fish may be taken with a gig.
(E) Jugline. For use in fresh water only. Non-game fish, channel catfish, blue catfish and flathead catfish may be taken with a jugline. It is unlawful to use a jugline:
(i) with invalid gear tags. Gear tags must be attached within six inches of the free-floating device, are valid for 30 days after the date set out, and must include the number of the permit to sell non-game fish taken from freshwater, if applicable;
(ii) for commercial purposes that is not marked with an orange free-floating device;
(iii) for non-commercial purposes that is not marked with a white free-floating device;
(iv) in Lake Bastrop in Bastrop County, Bellwood Lake in Smith County, Lake Bryan in Brazos County, Boerne City Park Lake in Kendall County, Lakes Coffee Mill and Davy Crockett in Fannin County, Dixieland Reservoir in Cameron County, Gibbons Creek Reservoir in Grimes County, and Tankersley Reservoir in Titus County.
(F) Lawful archery equipment. Only non-game fish, channel catfish, blue catfish, and flathead catfish may be taken with lawful archery equipment or crossbow. After August 31, 2008, only nongame fish may be taken by means of lawful archery or crossbow.
(G) Minnow trap (fresh water and salt water).
(i) Only non-game fish may be taken with a minnow trap.
(ii) It is unlawful to use a minnow trap that exceeds 24 inches in length or with a throat larger than one by three inches.
(H) Perch traps. For use in salt water only.
(i) Perch traps may be used only for taking non-game fish.
(ii) It is unlawful to fish a perch trap that:
(I) exceeds 18 cubic feet in volume;
(II) is not equipped with a degradable panel. A trap shall be considered to have a degradable panel if one of the following methods is used in construction of the trap:
(-a-) the trap lid tie-down strap is secured to the trap by a loop of untreated jute twine (comparable to Lehigh brand # 530) or sisal twine (comparable to Lehigh brand # 390). The trap lid must be secured so that when the twine degrades, the lid will no longer be securely closed; or
(-b-) the trap lid tie-down strap is secured to the trap by a loop of untreated steel wire with a diameter of no larger than 20 gauge. The trap lid must be secured so that when the wire degrades, the lid will no longer be securely closed; or
(-c-) the trap contains at least one sidewall, not including the bottom panel, with a rectangular opening no smaller than 3 inches by 6 inches. Any obstruction placed in this opening may not be secured in any manner except:
(-1-) it may be laced, sewn, or otherwise obstructed by a single length of untreated jute twine (comparable to Lehigh brand # 530) or sisal twine (comparable to Lehigh brand # 390) knotted only at each end and not tied or looped more than once around a single mesh bar. When the twine degrades, the opening in the sidewall of the trap will no longer be obstructed; or
(-2-) it may be laced, sewn, or otherwise obstructed by a single length of untreated steel wire with a diameter of no larger than 20 gauge. When the wire degrades, the opening in the sidewall of the trap will no longer be obstructed; or
(-3-) the obstruction may be loosely hinged at the bottom of the opening by no more than two untreated steel hog rings and secured at the top of the obstruction in no more than one place by a single length of untreated jute twine (comparable to Lehigh brand # 530), sisal twine (comparable to Lehigh brand # 390), or by a single length of untreated steel wire with a diameter of no larger than 20 gauge. When the twine or wire degrades, the obstruction will hinge downward and the opening in the sidewall of the trap will no longer be obstructed.
(III) that is not marked with a floating visible orange buoy not less than six inches in height and six inches in width. The buoy must have a gear tag attached. Gear tags are valid for 30 days after date set out.
(I) Pole and line.
(i) Game and non-game fish may be taken by pole and line. It is unlawful to take or attempt to take fish with one or more hooks attached to a line or artificial lure used in a manner to foul-hook a fish (snagging or jerking). A fish is foul-hooked when caught by a hook in an area other than the fish's mouth.
(ii) Game and nongame fish may be taken by pole and line. It is unlawful to take fish with a hand-operated device held underwater except that a spear gun and spear may be used to take nongame fish.
(iii) Game and non-game fish may be taken by pole and line, except that in the Guadalupe River in Comal County from the second bridge crossing on River Road upstream to the easternmost bridge crossing on F.M. Road 306, rainbow and brown trout may not be retained when taken by any method except artificial lures. Artificial lures cannot contain or have attached either whole or portions, living or dead, of organisms such as fish, crayfish, insects (grubs, larvae, or adults), or worms, or any other animal or vegetable material, or synthetic scented materials. This does not prohibit the use of artificial lures that contain components of hair or feathers. It is an offense to possess rainbow and brown trout while fishing with any other device in that part of the Guadalupe River defined in this paragraph.
(J) Purse seine (net).
(i) Purse seines may be used only for taking menhaden, only from that portion of the Gulf of Mexico within the jurisdiction of this state extending from one-half mile offshore to nine nautical miles offshore, and only during the period of time beginning the third Monday in April through the first day in November each year.
(ii) Purse seines used for taking menhaden may not be used within one mile of any jetty or pass.
(iii) The purse seine, not including the bag, shall not be less than three-fourths inch square mesh.
(K) Sail line. For use in salt water only.
(i) Non-game fish, red drum, spotted seatrout, and sharks may be taken with a sail line.
(ii) Line length shall not exceed 1,800 feet from the reel to the sail.
(iii) The sail and most shoreward float must be a highly visible orange or red color. All other floats must be yellow.
(iv) No float on the line may be more than 200 feet from the sail.
(v) A weight of not less than one ounce shall be attached to the line not less than four feet or more than six feet shoreward of the last shoreward float.
(vi) Reflectors of not less than two square inches shall be affixed to the sail and floats and shall be visible from all directions for sail lines operated from 30 minutes after sunset to 30 minutes before sunrise.
(vii) There is no hook spacing requirement for sail lines.
(viii) No more than one sail line may be used per fisherman.
(ix) Sail lines may not be used by the holder of a commercial fishing license.
(x) Sail lines must be attended at all times the line is fishing.
(xi) Sail lines may not have more than 30 hooks and no hook may be placed more than 200 feet from the sail.
(L) Seine.
(i) Only non-game fish may be taken with a seine.
(ii) It is unlawful to use a seine:
(I) which is not manually operated.
(II) with mesh exceeding 1/2-inch square.
(III) that exceeds 20 feet in length.
(iii) In salt water, non-game fish may be taken by seine for bait purposes only.
(M) Shad trawl. For use in fresh water only.
(i) Only non-game fish may be taken with a shad trawl.
(ii) It is unlawful to use a shad trawl longer than six feet or with a mouth larger than 36 inches in diameter.
(iii) A shad trawl may be equipped with a funnel or throat and must be towed by boat or by hand.
(N) Spear. Only non-game fish may be taken with a spear.
(O) Spear gun. Only non-game fish may be taken with spear gun.
(P) Throwline. For use in fresh water only.
(i) Non-game fish, channel catfish, blue catfish and flathead catfish may be taken with a throwline.
(ii) It is unlawful to use a throwline in Lake Bastrop in Bastrop County, Bellwood Lake in Smith County, Lake Bryan in Brazos County, Boerne City Park Lake in Kendall County, Lakes Coffee Mill and Davy Crockett in Fannin County, Dixieland Reservoir in Cameron County, Gibbons Creek Reservoir in Grimes County, and Tankersley Reservoir in Titus County.
(Q) Trotline.
(i) Non-game fish, channel catfish, blue catfish, and flathead catfish may be taken by trotline.
(ii) It is unlawful to use a trotline:
(I) with a mainline length exceeding 600 feet;
(II) with invalid gear tags. Gear tags must be attached within three feet of the first hook at each end of the trotline and are valid for 30 days after date set out, except on saltwater trotlines, a gear tag is not required to be dated;
(III) with hook interval less than three horizontal feet;
(IV) with metallic stakes; or
(V) with the main fishing line and attached hooks and stagings above the water's surface.
(iii) In fresh water, it is unlawful to use a trotline:
(I) with more than 50 hooks;
(II) in Gibbons Creek Reservoir in Grimes County, Lake Bastrop in Bastrop County, Lakes Coffee Mill and Davy Crockett in Fannin County, Fayette County Reservoir in Fayette County, Pinkston Reservoir in Shelby County, Lake Bryan in Brazos County, Bellwood Lake in Smith County, Dixieland Reservoir in Cameron County, Boerne City Park Lake in Kendall County, and Tankersley Reservoir in Titus County.
(iv) In salt water:
(I) it is unlawful to use a trotline:
(-a-) in or on the waters of the Gulf of Mexico within the jurisdiction of this state;
(-b-) from which red drum, sharks or spotted seatrout caught on the trotline are retained or possessed;
(-c-) placed closer than 50 feet from any other trotline, or set within 200 feet of the edge of the Intracoastal Waterway or its tributary channels. No trotline may be fished with the main fishing line and attached hooks and stagings above the water's surface;
(-d-) baited with other than natural bait, except sail lines;
(-e-) with hooks other than circle-type hook with point curved in and having a gap (distance from point to shank) of no more than one-half inch, and with the diameter of the circle not less than five-eighths inch. Sail lines are excluded from the restrictions imposed by this clause; or
(-f-) in Aransas County in Little Bay and the water area of Aransas Bay within one-half mile of a line from Hail Point on the Lamar Peninsula, then direct to the eastern end of Goose Island, then along the southern shore of Goose Island, then along the causeway between Lamar Peninsula and Live Oak Peninsula, then along the eastern shoreline of the Live Oak Peninsula past the town of Fulton, past Nine-Mile Point, past the town of Rockport to a point at the east end of Talley Island, including that part of Copano Bay within 1,000 feet of the causeway between Lamar Peninsula and Live Oak Peninsula.
(II) No trotline or trotline components, including lines and hooks, but excluding poles, may be left in or on coastal waters between the hours of 1:00 p.m. on Friday through 1:00 p.m. on Sunday of each week, except that attended sail lines are excluded from the restrictions imposed by this clause. Under the authority of the Texas Parks and Wildlife Code, §66.206(b), in the event small craft advisories or higher marine weather advisories issued by the National Weather Service are in place at 8:00 a.m. on Friday, trotlines may remain in the water until 6:00 p.m. on Friday. If small craft advisories are in place at 1:00 p.m. on Friday, trotlines may remain in the water until Saturday. When small craft advisories are lifted by 8:00 a.m. on Saturday, trotlines must be removed by 1:00 p.m. on Saturday. When small craft advisories are lifted by 1:00 p.m. on Saturday, trotlines must be removed by 6:00 p.m. on Saturday. When small craft advisories or higher marine weather advisories are still in place at 1:00 p.m. on Saturday, trotlines may remain in the water through 1:00 p.m. on Sunday. It is a violation to tend, bait, or harvest fish or any other aquatic life from trotlines during the period that trotline removal requirements are suspended under this provision for adverse weather conditions. For purposes of enforcement, the geographic area customarily covered by marine weather advisories will be delineated by department policy.
(III) It is unlawful to fish for commercial purposes with:
(-a-) more than 20 trotlines at one time;
(-b-) any trotline that is not marked with yellow flagging attached to stakes or with a floating yellow buoy not less than six inches in height, six inches in length, and six inches in width attached to end fixtures;
(-c-) any trotline that is not marked with yellow flagging attached to stakes or with a yellow buoy bearing the commercial finfish fisherman's license plate number in letters of a contrasting color at least two inches high attached to end fixtures;
(-d-) any trotline that is marked with yellow flagging or with a buoy bearing a commercial finfish fisherman's license plate number other than the commercial finfish fisherman's license plate number displayed on the finfish fishing boat;
(IV) It is unlawful to fish for non-commercial purposes with:
(-a-) more than 1 trotline at any time; or
(-b-) any trotline that is not marked with a floating yellow buoy not less than six inches in height, six inches in length, and six inches in width, bearing a two-inch wide stripe of contrasting color, attached to end fixtures.
(R) Umbrella net.
(i) Only non-game fish may be taken with an umbrella net.
(ii) It is unlawful to use an umbrella net with the area within the frame exceeding 16 square feet.
§65.82.Other Aquatic Life.
(a) It is unlawful for a person to knowingly take, kill, or disturb sea turtles or sea turtle eggs in or from the waters of the State of Texas.
(b) It is unlawful for a person to knowingly take or possess a diamondback terrapin (Malaclemys terrapin) or their eggs unless the person is authorized to do so under a permit issued under Chapter 69, Subchapter J of this title (relating to Scientific, Educational, and Zoological Permits).
(c) There is no open season on porpoises, dolphins (mammals), whales, or sawfishes (Pristis perotteti).
(d) It is unlawful for any person to take or kill shell-bearing mollusks, hermit crabs, starfish, or sea urchins from November 1 through April 30 within the following boundary: the bay and pass sides of South Padre Island from the East end of the north jetty at Brazos Santiago Pass to the West end of West Marisol drive in the town of South Padre Island, out 1,000 yards from the mean high-tide line, and bounded to the south by the centerline of the Brazos Santiago Pass.
(e) It is unlawful for any person to take, kill, or possess more than 15 univalve snails (all species), to include no more than two of each of the following species: lightening whelk, horse conch, Florida fighting conch, pear whelk, banded tulip, and Florida rocksnail.
(f) Any other aquatic life (except threatened and endangered species) not addressed in this subchapter may be taken only by hand or with the devices defined as lawful for taking fish, crabs, oysters, or shrimp in places and at times as provided by proclamations of the Parks and Wildlife Commission and the Parks and Wildlife Code.
This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June 28, 2007.
TRD-200702729
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Effective date: July 18, 2007
Proposal publication date: March 2, 2007
For further information, please call: (512) 389-4775
Division 3. SEASONS AND BAG LIMITS--FISHING PROVISIONS
The Texas Parks and Wildlife Commission adopts new §65.83,
concerning Delegation of Authority, without changes to the proposed
text as published in the April 20, 2007, issue of the
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 new rule makes that delegation.
The new rule allows Texas regulations governing coastal fishing
to be brought into conformity with federal regulations more rapidly
than through the normal internal rulemaking process used by the department.
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 rulemaking authority to the executive director allows 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.
The new rule will function by providing the department with an
expedited method for conforming state regulations whenever federal
regulations change in the Exclusive Economic Zone.
The department received four comments opposing adoption of the
proposed rule. Three of the commenters expressed a rationale or justification
for opposition. Those comments, accompanied by the department's response,
are as follows.
One commenter opposed adoption and stated that Texas rulemaking
should be kept in the hands of Texans because the National Marine
Fisheries Service has destroyed the recreational fishery and the tourist
economy of South Texas and has handed the fishery to criminals. The
commenter further stated that bringing state rules into agreement
with federal rules would cause further damage. The department disagrees
with the comment and responds that no rulemaking authority is being
ceded to federal agencies and that rule changes in Texas waters will
always be based on science and sensible judgment of what is in the
best interests of the resource and those who enjoy the resource. No
changes were made as a result of the comment.
One commenter opposed adoption and stated that the commission should
have to go out for public comment unless an emergency exists and that
losing the ability to have hearings is not in the best interests of
sportsmen. The department disagrees with the comment and responds
that the rule as adopted does not create any exceptions to current
requirements of statute, rule, or policy with respect to rulemaking
or public notice. No changes were made as a result of the comment.
One commenter opposed adoption and stated that the difference between
the 60-day and 75-day standards would harm the shrimp industry. The
department disagrees with the comment and responds that the rule as
adopted has no effect on shrimp regulations or shrimping. No changes
were made as a result of the comment.
The department received nine comments supporting adoption of the
new rule.
The Recreational Fishing Alliance and the Texas Shrimp Association
commented against adoption of the proposed new rule.
The new section is adopted 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.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the
agency's legal authority.
Filed with the Office
of the Secretary of State on June 28, 2007.
TRD-200702723
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Effective date: July 18, 2007
Proposal publication date: April 20, 2007
For further information, please call: (512) 389-4775
The Texas Parks and Wildlife Commission adopts an
amendment to §65.107, concerning Permit Application and Processing,
without changes to the proposed text as published in the April 20,
2007, issue of the
Texas Register
(32
TexReg 2252).
Under current §65.107(a), an applicant may specify multiple
trap and release sites on a single application for a Permit to Trap,
Transport, and Transplant Game Animals and Game Birds (popularly referred
to as "Triple T" permits). 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 published a notice of adoption of
the actual fee increase elsewhere in this issue, although a discussion
of the fee is included in this preamble as a courtesy.
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.
It is the policy of the Texas Parks and Wildlife Commission that
the department recover the cost of administering permit programs that
authorize the possession of live game animals. Additionally, 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. The rule as adopted is necessary for the department
to recoup the expenses of administering the Triple T permit program.
The fee of $750 was derived by dividing the cost of program administration
and enforcement by the number of release sites.
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 amendment
adds the Deputy Director of Operations (or his or her designee) to
the review panel and removes "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 amendment will function by requiring applicants to pay a fee
for each release site named on a single Triple T permit and by establishing
the composition of the panel that reviews agency decisions to deny
or delay permit issuance.
The department received no comments concerning adoption of the
proposed rule, other than those comments related to the fee increase,
which are addressed in another rulemaking published elsewhere in this
issue.
The amendment is adopted under the authority of Parks
and Wildlife Code, §43.061, which requires the commission to
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.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the
agency's legal authority.
Filed with the Office
of the Secretary of State on June 28, 2007.
TRD-200702724
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Effective date: July 18, 2007
Proposal publication date: April 20, 2007
For further information, please call: (512) 389-4775
31 TAC §§65.131, 65.134 - 65.136
The Texas Parks and Wildlife Commission adopts amendments
to §65.131 and §§65.134 - 65.136, concerning Deer Management
Permits (DMP), without change to the proposed text as published in
the April 20, 2007, issue of the
Texas Register
(32
TexReg 2254).
The amendment to §65.131, concerning Deer Management Permit
(DMP), eliminates current subsection (d) and alters 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 provides for a
consistent application process and fee for new applications and renewals.
Therefore, subsection (d) is no longer necessary. The department has
published a notice of adoption of the actual fee increase elsewhere
in this issue, although a discussion of the fee is included in this
preamble as a courtesy.
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.
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 amendment
adds the Deputy Director of Operations (or his or her designee) to
the review panel and removes "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 amendment to §65.134, concerning Facility Standards, clarifies
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
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 amendment to §65.135, concerning Detention and Marking
of Deer, lengthens the period of time when it is unlawful to trap
deer from the wild under a DMP and eliminates 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 amendment extends 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 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 amendment is necessary
to simplify the rules.
The amendment to §65.136, concerning Release, reduces the
minimum footage of fencing that must be removed during release operations,
allows multiple openings of at least 10 feet, and shortens 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 amendment also eliminates 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 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 amendment also clarifies 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 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.
The amendment to §65.131 will function by eliminating a time-consuming
process in favor of consistent application process for new applications
and renewals; and by including senior management on review panels.
The amendment to §65.134 will function by specifying the maximum
number of deer that may be kept in a DMP pen; by lengthening the period
of time when it is unlawful to trap deer from the wild under a DMP;
and by eliminating the requirement that deer within a DMP be ear-tagged.
The amendment to §65.136 will function by reducing the minimum
footage of fencing that must be removed during release operations
and shortening the time that containment features must be removed
in order to effect release of DMP deer; by clarifying when supplemental
food and water within DMP pens must be removed; and by stipulating
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.
The department received one comment opposing adoption of the provision
that would shorten the minimum time that fencing components must remain
down during release operations. The commenter stated that 30 days
is insufficient for dispersal and does not allow for proper inspection
or confirmation of openings by enforcement officials. The department
disagrees with the comment and responds that dispersal must occur
within several days, because all supplemental feed and water is removed,
forcing the deer to begin natural feeding behaviors. The department
also responds that its Law Enforcement Division believes that the
rule as adopted can be enforced. No changes were made as a result
of the comment.
The department received one comment supporting adoption of the
portion of the rules that do not involve fee increases. Numerous comments
opposing fee increases were received; they are addressed in another
rulemaking published elsewhere in this issue.
The Texas Deer Association commented in favor of adoption of the
portions of the rules that do not involve fee increases.
The amendments are adopted 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.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the
agency's legal authority.
Filed with the Office
of the Secretary of State on June 28, 2007.
TRD-200702725
Ann Bright
General Counsel
Texas Parks and Wildlife
Effective date: July 18, 2007
Proposal publication date: April 20, 2007
For further information, please call: (512) 389-4775
31 TAC §§65.191, 65.193, 65.201
The Texas Parks and Wildlife Commission adopts amendments
to §§65.191, 65.193, and 65.201, concerning the Public Lands
Proclamation, without changes to the proposed text as published in
the April 20, 2007, issue of the
Texas Register
(32
TexReg 2256).
The amendment to §65.191, concerning Definitions, adds a definition
for "special access permit." The special access permit authorizes
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 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 amendment would explicitly 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 amendment to §65.193, concerning Access Permit Required
and Fees, conforms 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 amendment to §65.191 and will also be nonsubstantive
in nature.
The amendment to §65.201, concerning Motor Vehicles, exempts
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.
The amendment to §65.191 will function by adding a definition
for "special access permit" so that the meaning of the term will be
clear and unambiguous.
The amendment to §65.193 will function by conforming the language
of the section as necessary to reflect the applicability of the section's
provisions to the special access permit.
The amendment to §65.201, concerning Motor Vehicles, will
function by exempting 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 department received one comment opposing adoption of the proposed
amendments. The commenter stated that hunting should not be allowed
on state parks. The department disagrees with the comment and responds
that it is the policy of the Texas Parks and Wildlife Commission to
provide the maximum amount of public hunting opportunity possible
on state parks, consistent with prudent biological management and
minimization of interference with other types of park visitation.
No changes were made as a result of the comment.
The department received 14 comments supporting adoption of the
proposed amendment.
The amendments are adopted 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.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the
agency's legal authority.
Filed with the Office
of the Secretary of State on June 28, 2007.
TRD-200702726
Ann Bright
General Counsel
Texas Parks and Wildlife Department
Effective date: July 18, 2007
Proposal publication date: April 20, 2007
For further information, please call: (512) 389-4775
Subchapter C. PERMITS FOR TRAPPING, TRANSPORTING, AND TRANSPLANTING GAME ANIMALS AND GAME BIRDS
Subchapter D. DEER MANAGEMENT PERMIT (DMP)
Subchapter H. PUBLIC LANDS PROCLAMATION