Work Session

Wednesday, January 26, 2022
9:00 a.m.

Texas Parks and Wildlife Department
Commission Hearing Room
4200 Smith School Road
Austin, TX 78744

Arch “Beaver” Aplin, III, Commission Chair
Carter Smith, Executive Director

Approval of the Previous Minutes from the Commission Work Session held November 3, 2021

    Land and Water Plan

  1. Update on the Texas Parks and Wildlife Department’s Progress in Implementing the Texas Parks and Wildlife Department Land and Water Resources Conservation and Recreation Plan – Carter Smith
    • Internal Affairs Update
    • Staff Recognition
    • Habitat and Angler Access Program
    • Search and Rescue
  2. Financial

  3. Financial Update – Reggie Pegues
  4. Internal Audit Update – Brandy Meeks
  5. Natural Resources

  6. Implementation of Legislation during the 87th Texas Legislative Session – House Bill 1927 – Relating to Provisions Governing the Carrying of a Firearm – Recommended Adoption of Proposed Changes – Luis Sosa (Action Item No. 1)
  7. Parklands Passport Rules – Recommended Adoption of Proposed Changes – David Kurtenbach (Action Item No. 2)
  8. Aquatic Vegetation Management Rules – Request Permission to Publish Proposed Changes in the Texas Register – Monica McGarrity
  9. Correction to Largemouth Bass Harvest Rules – Recommended Adoption of Proposed Changes – Michael Tennant (Action Item No. 3)
  10. 2022-2023 Statewide Recreational and Commercial Fishing Proclamation – Request Permission to Publish Proposed Changes in the Texas Register – Michael Tennant, Les Casterline
  11. Spotted Seatrout Harvest Rules – Recommended Adoption of Proposed Changes – Tiffany Hopper (Action Item No. 4)
  12. BRIEFING – Oyster Management Strategies Update – Robin Riechers
  13. Statewide Oyster Fishery Proclamation – Closure of Oyster Reef Areas – Request Permission to Publish Proposed Changes in the Texas Register – Robin Riechers
  14. 2022-2023 Statewide Hunting and Migratory Game Bird Proclamation – Request Permission to Publish Proposed Changes in the Texas Register – Alan Cain, Shawn Gray, Shaun Oldenburger
  15. Comprehensive Chronic Wasting Disease (CWD) Management Rules – Triple T Provisions – Request Permission to Publish Proposed Changes in the Texas Register – Alan Cain
  16. Land Conservation

  17. Exchange of Land – Parker County – Approximately 12 Acres at Lake Mineral Wells State Park and Trailway – Trey Vick (Work Session and Executive Session) (Action Item No. 5)
  18. Exchange of Land – Somervell County – Approximately 0.2 Acres at Dinosaur Valley State Park – Trey Vick (Work Session and Executive Session) (Action Item No. 6)
  19. Request for Drainage Easement – Orange County – Approximately 20 Acres at the Lower Neches Wildlife Management Area – Ted Hollingsworth (Work Session and Executive Session) (Action Item No. 7)
  20. Executive Session

  21. Litigation Update – James Murphy (Executive Session Only)

Work Session Item No. 1
Presenter: Carter Smith

Work Session
Update on the Texas Parks and Wildlife Department’s Progress in Implementing the Texas Parks and Wildlife Department Land and Water Resources Conservation and Recreation Plan
January 26, 2022

I.      Executive Summary: Executive Director Carter Smith will briefly update the Texas Parks and Wildlife Commission (Commission) on the status of Texas Parks and Wildlife Department’s (TPWD) efforts to implement the Land and Water Resources Conservation and Recreation Plan (plan). 

II.     Discussion: In 2001, the 77th Texas Legislature directed that TPWD develop a Land and Water Resources Conservation and Recreation Plan (Texas Parks and Wildlife Code section 11.104). In 2002, the Commission adopted the first plan. A revised plan was adopted by the Commission in January 2005. In November 2009, the Commission approved a new plan, effective January 1, 2010, that included broad input from stakeholders and the general public.  Minor revisions continue to be made to the plan. The 2015 version of the plan is available on the TPWD website. Executive Director Carter Smith will update the Commission on TPWD’s recent progress in achieving the plan’s goals, objectives, and deliverables.

The plan consists of the following four goals:

  1. Practice, Encourage, and Enable Science-Based Stewardship of Natural and Cultural Resources
  2. Increase Access to and Participation in the Outdoors
  3. Educate, Inform, and Engage Texas Citizens in Support of Conservation and Recreation
  4. Employ Efficient, Sustainable, and Sound Business Practices

Work Session Item No. 2
Presenter: Reggie Pegues

Work Session
Financial Update
January 26, 2022

I.      Executive Summary:  The staff will present a financial overview of the Texas Parks and Wildlife Department (TPWD). 

II.     Discussion: The staff will update the Texas Parks and Wildlife Commission on state park, boat registration/titling, and license fee revenues collected by TPWD for Fiscal Year (FY) 2021 and for year-to-date FY 2022.  Staff will also summarize recent budget adjustments for FY 2022.


Work Session Item No. 3
Presenter: Brandy Meeks

Work Session
Internal Audit Update
January 26, 2022

I.      Executive Summary: The staff will present an update on the Texas Parks and Wildlife Department (TPWD) Fiscal Year (FY) 2021 and 2022 Internal Audit Plans and ongoing or completed external audits.

II.     Discussion: The staff will provide an update on the TPWD FY 2021 and 2022 Internal Audit Plans, as well as a briefing of any external audits that have been recently completed or are ongoing.


Work Session Item No. 6
Presenter: Monica McGarrity

Work Session
Aquatic Vegetation Management Rules
Request Permission to Publish Proposed Changes in the Texas Register
January 26, 2022

I.           Executive Summary: The Texas Parks and Wildlife Department (TPWD) staff is seeking permission to publish proposed amendments to rules governing management of nuisance aquatic vegetation in public waters in the Texas Register.

II.        Discussion: Texas Parks and Wildlife Code Chapter 11 directs TPWD to adopt a state aquatic vegetation management plan following the generally accepted principles of integrated pest management. The proposed amendments to rules concerning aquatic vegetation management would provide a qualified exception for waterfront landowners from the treatment proposal preparation and submission requirement for physical removal of floating aquatic vegetation from around their docks and shorelines.

Attachment – 1

  1. Exhibit A – State Aquatic Vegetation Plan Rules

Work Session Item No. 6
Exhibit A

STATE AQUATIC VEGETATION PLAN

PROPOSAL PREAMBLE

1. Introduction.

         The Texas Parks and Wildlife Department (the department) proposes amendments to 31 TAC §57.930 and §57.932, concerning Aquatic Vegetation Management. The proposed amendments would provide a qualified exception for waterfront landowners from the current requirement for preparation and submission of a treatment proposal for physical removal of floating aquatic vegetation in public water adjacent to private property.

        The proposed amendment to §57.930, concerning Definitions, would create a definition for floating aquatic vegetation that considers both floating species of plants not rooted in the substrate and floating mats of fragments of vegetation dislodged through natural processes such as flooding.

        The proposed amendment to §57.932, concerning State Aquatic Vegetation Plan, would add new subsection (b)(5) to exempt property owners or managers or agents thereof from being required to submit a treatment proposal for physical removal of floating aquatic vegetation from public water adjacent to the property, shorelines, docks, or other waterfront infrastructure associated with the property, provided controlled exotic invasive species are possessed, transported, and disposed in compliance with §57.113 of this title, concerning Harmful or Potentially Harmful Fish, Shellfish, and Aquatic Plants), as applicable. The department has determined that removal of aquatic invasive plants is beneficial to the aquatic ecosystem and removal of small quantities of native floating aquatic plants is not detrimental. Furthermore, this activity does not present a risk of spreading aquatic invasive plant species provided compliance with regulations regarding possession, transport, and disposal of harmful or potentially harmful exotic aquatic plants.

2. Fiscal Note.

        Monica McGarrity, Senior Scientist for Aquatic Invasive Species in the Inland Fisheries Division, has determined that for each of the first five years that the rules as proposed are in effect, there will be fiscal implications to the department as a result of administering or enforcing the rules. Those implications are expected to be negligible, as they consist of a reduction in staff time required to review treatment proposals. There will be no implications to other units of state or local government.

3. Public Benefit/Cost Note.

        Ms. McGarrity also has determined that that for each of the first five years that the rules as proposed are in effect:

                 (A) The public benefit anticipated as a result of enforcing or administering the proposed rules will be a reduction in administrative complexity with respect to the removal of nuisance aquatic vegetation.

                 (B) Under provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses and micro-businesses. Those guidelines state that an agency need only consider a proposed rule’s "direct adverse economic impacts" to small businesses and micro-businesses to determine if any further analysis is required. For that purpose, the department considers "direct economic impact" to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services. The department has determined that the proposed rules will not result in any direct economic costs to any small businesses, micro-businesses, or rural communities; therefore, the department has a determined that neither the economic impact statement nor the regulatory flexibility analysis described in Government Code, Chapter 2006, is required.

                 (C) The department has not drafted a local employment impact statement under the Administrative Procedures Act, §2001.022, as the agency has determined that the rules as proposed will not impact local economies.

                 (D) The department has determined that Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rules.

                 (E) The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rules.

                 (F) In compliance with the requirements of Government Code, §2001.0221, the department has prepared the following Government Growth Impact Statement (GGIS).  The rules as proposed, if adopted, will:

                         (1) neither create nor eliminate a government program;

                         (2) not result in an increase or decrease in the number of full-time equivalent employee needs;

                         (3) not result in a need for additional General Revenue funding;

                         (4) not affect the amount of any fee;

                         (5) not create or expand a new regulation;

                         (6) limit an existing regulation (by removing applicability in certain instances);

                         (7) neither increase nor decrease the number of individuals subject to regulation; and

                         (8) not positively or adversely affect the state’s economy.

4. Request for Public Comment.

        Comments on the proposed rule may be submitted to Monica McGarrity, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 552-3465; email: monica.mcgarrity@tpwd.texas.gov or via the department website at www.tpwd.texas.gov.

5. Statutory Authority.

        The amendments are proposed under the authority of Parks and Wildlife Code, §11.082, which authorizes the department to develop and by rule adopt a state aquatic vegetation management plan following the generally accepted principles of integrated pest management.

        The proposed amendments affect Parks and Wildlife Code, Chapter 11.

6. Rule Text.

        §57.930. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. All other words and terms in this subchapter shall have the meanings assigned in the Texas Parks and Wildlife Code.

                 (1) – (3) (No change.)

                 (4) Floating aquatic vegetation — A plant species that occurs on the surface of a lake or pond without attachment by roots to the soil at the bottom of the waterbody or free-floating mats of fragments of ordinarily rooted species of vegetation that have become dislodged through natural processes such as flooding.

                 (5)[(4)] Integrated pest management — the coordinated use of pest and environmental information and pest control methods to prevent unacceptable levels of pest damage by the most economical means and in a manner that will cause the least possible hazard to persons, property, and the environment. Integrated pest management includes consideration of ecological, biological, chemical, and mechanical strategies for control of nuisance aquatic vegetation.

                 (6)[(5)] Licensed Applicator — a person who holds a valid license for aquatic herbicide application from the Texas Department of Agriculture.

                 (7)[(6)] Local plan — a local aquatic vegetation management plan authorized by Parks and Wildlife Code, §11.083 and meeting the requirements in §57.933 of this title (relating to Adoption and Applicability of Local Aquatic Vegetation Plans) and §57.934 of this title (relating to Local Aquatic Vegetation Plan).

                 (8)[(7)] MCL — maximum contaminant level.

                 (9)[(8)] NPDES — National Pollutant Discharge Elimination System. The NPDES Permit Program is administered by EPA under the Clean Water Act.

                 (10)[(9)] Nuisance aquatic vegetation — any non-native or native vascular plant species that is determined, in consideration of TPWD guidance, to have the potential to substantially interfere with the uses of a public body of surface water.

                 (11)[(10)] Public body of surface water — any body of surface water that is not used exclusively for an agricultural purpose. The term does not include impounded water on private property or water being transported in a canal.

                 (12)[(11)] Public drinking water provider — any person who owns or operates a system for the provision to the public of water for human consumption through pipes or other constructed conveyances, if such system has at least fifteen service connections or regularly serves at least twenty-five individuals at least 60 days out of the year.

                 (13)[(12)] State plan — the state aquatic vegetation management plan authorized by Parks and Wildlife Code, §11.082, and described in §57.931 of this title (relating to State Aquatic Vegetation Plan Applicability) and §57.932 of this title (relating to State Aquatic Vegetation Plan).

                 (14)[(13)] TCEQ — Texas Commission on Environmental Quality.

                 (15)[(14)]  TDA — the Texas Department of Agriculture.

                 (16)[(15)] TPWD — the Texas Parks and Wildlife Department.

                 (17)[(16)] Treatment proposal — a submission to TPWD on a TPWD-approved form that describes intended measures to control nuisance aquatic vegetation.

                 (18)[(17)] Water district — a conservation and reclamation district or an authority created under authority of Section 52(b)(1) or (2), Article III, or Section 59, Article XVI, Texas Constitution, that has jurisdiction over a public body of surface water. The term does not include a navigation district or a port authority.

        §57.932. State Aquatic Vegetation Plan

                 (a) Requirements Applicable to All Measures to Control Nuisance Aquatic Vegetation.

                         (1) – (3) (No change.)

                         (4) Review by TPWD. Except as provided in paragraph (5) of this subsection, prior [Prior] to undertaking any measures to control nuisance aquatic vegetation in a public body of surface water, a person operating under the state plan (exclusive of TPWD personnel or its contractors) shall provide to TPWD a treatment proposal, on a form included in the guidance document, no later than the 14th day before the measures are to begin. TPWD will review and may disapprove or amend any treatment proposal and will respond no later than the day before the proposed control measures are to begin. Where appropriate, TPWD will provide technical advice and recommendations regarding prevention of nuisance aquatic vegetation problems. The person submitting the treatment proposal shall have the burden of demonstrating compliance with the state plan. Where a local plan governs, treatment proposals are not subject to TPWD review, approval, and amendment, but are to be submitted to TPWD (pursuant to §57.934(b) of this title, relating to Local Aquatic Vegetation Plan) for informational purposes.

                         (5) The owner or manager of a property or their agent, other than persons hired solely for the purposes of removing aquatic vegetation or persons using mechanical harvesters, is not required to submit a treatment proposal for physical removal of floating aquatic plants from public water adjacent to the property, shorelines, docks, or other waterfront infrastructure associated with the property provided these species are possessed, transported, and disposed in compliance with §57.113 of this title (relating to Harmful or Potentially Harmful Fish, Shellfish, and Aquatic Plants.

                 (b) (No change.)

        This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.

        Issued in Austin, Texas, on


Work Session Item No. 8
Presenters: Michael Tennant
Les Casterline

Work Session
2022-2023 Statewide Recreational and Commercial Fishing Proclamation – Request Permission to Publish Proposed Changes in the Texas Register
January 26, 2022

I.      Executive Summary: The Texas Parks and Wildlife Department (TPWD) staff is seeking permission to publish proposed changes to the Statewide Recreational and Commercial Fishing Proclamation in the Texas Register for public comment. The proposed amendments consist of the following: 

Inland Fisheries

Coastal Fisheries

II.     Discussion: Responsibility for establishing seasons, bag limits, and means and methods for taking fisheries resources for recreational purposes is delegated to the Texas Parks and Wildlife Commission (Commission) under Texas Parks and Wildlife Code (PWC) chapters 61 and 67. Statutory authority to regulate commercial fisheries is delegated to the Commission under PWC chapters 47 and 66.  The proposed rules are based upon suggestions from the public, statutory requirements, and Commission policy, including scientific investigation and required findings of fact where applicable. The proposed changes are intended to increase recreational opportunity, decrease regulatory complexity where possible, promote enforcement, and provide for the sound biological management of the wildlife resources of the state.

Attachment – 1

  1. Exhibit A – Proposed Rules

Work Session Item No. 8
Exhibit A

STATEWIDE RECREATIONAL AND COMMERCIAL FISHING PROCLAMATION

PROPOSAL PREAMBLE

1. Introduction.

        The Texas Parks and Wildlife Department proposes amendments to 31 TAC §§57.973, 57.974. 57.981, 57.992, and 57.1000, concerning the Statewide Recreational and Commercial Fishing Proclamation.

        The proposed amendment to §57.973, concerning Devices, Means and Methods, would rephrase a provision concerning sail lines in subsection (g)(15)(I). The provision as currently worded could be construed as to prohibit the use of a sail line at any time by a person who holds a commercial fishing license. The department has determined that the intent of the rule is to prohibit the use of sail lines for commercial purposes, not to prevent a commercial license holder from employing a sail line while fishing under a recreational license for personal non-commercial use.

        The proposed amendment to §57.974, concerning Reservoir Boundaries, would add boundary descriptions for two reservoirs (Lake Texoma and Sam Rayburn Reservoir), which is necessary to provide exact descriptions of the geographical areas to which harvest restrictions on those water bodies apply.

        The proposed amendment to §57.981, concerning Bag, Possession, and Length Limits, would consist of several actions.

        The proposed amendment would alter the species information with respect to striped bass in subsections (c)(5)(B)(iv) and (d)(1)(D) to remove references to white bass and subspecies. The department has determined that the change more accurately represents the intent of the rules.

        The proposed amendment to §57.981 also would expand the boundaries of the area on the Oklahoma/Texas border in which the take of alligator gar is prohibited during spawning season (the month of May). Oklahoma now prohibits the take of alligator gar during the month of May on a statewide basis. The intent of the amendment is to harmonize Texas regulations for gar harvest with those in Oklahoma to mitigate to the extent possible any conflicts that could result in angler confusion and issues related to compliance and enforcement on boundary waters. The proposed amendment would prohibit the take of alligator gar from, and the possession of alligator gar while on, the Red River (including Lake Texoma) and all tributaries that drain directly or indirectly to the Red River on the Texas/Oklahoma border, in Cooke, Grayson, Fannin, Lamar, Red River, and Bowie counties during the month of May.

         The proposed amendment to §57.981 also would eliminate the exception to statewide harvest standards for walleye on Lake Texoma. Walleye have not been stocked in the lake since 1977, a self-sustaining population does not exist, and the department has determined that a viable sport fishery for walleye is not possible; therefore, the management exception is no longer needed.

        Additionally, the proposed amendment to §57.981 would alter subsection (d)(1)(C)(iii) to implement harvest rules for largemouth bass on Bois d’Arc Lake in Fannin County. Bois d’Arc Lake is a new impoundment and the department has determined that preservation of the largest, fastest growing largemouth bass in the new reservoir is an appropriate management strategy that will eventually maximize the quality of fishing over the lifespan of the reservoir. The proposed amendment would impose a 16-inch maximum length limit and create exceptions for temporary possession of 24-inch largemouth bass for submission to the department’s ShareLunker program. The proposed amendment also would simultaneously correct an error affecting largemouth bass harvest regulations on the 9 water bodies also subject to the provisions of clause (iii). An external administrative error during the rulemaking process in 2020 inadvertently resulted in incorrect largemouth bass harvest regulations being indicated in the Texas Administrative Code for the affected waterbodies. The error has since been rectified on a temporary basis by the adoption of new §57.985, which will be repealed at a later date. The proposed amendment re-establishes a maximum length limit of 16 inches with a special provision for the temporary possession of largemouth bass 24 inches and larger for possible donation to the ShareLunker program.

        The proposed amendment to §57.981 also makes a clarification in subsection (d)(1)(G) to identify all the counties encompassed by Sam Rayburn Reservoir.

        Finally, the proposed amendment to §57.981 would eliminate exceptions to the statewide harvest regulations for red drum on Coleto Creek Reservoir in Goliad and Victoria counties and on Lake Fairfield in Freestone County. Red drum have not been stocked by the department in either reservoir since 2011 and surveys indicate red drum are no longer present in either lake, from which the department has concluded that red drum as a sport fishery is unsustainable.

        The proposed amendment to §57.992, concerning Bag, Possession, and Length Limits, would alter regulations for the commercial take of alligator gar on Lake Texoma, for the reasons set forth earlier in the discussion of the proposed amendment to §57.981 concerning recreational harvest of alligator gar on Lake Texoma. Additionally, the proposed amendment would clarify subsection (b)(4)(B) to identify all the counties encompassed by Sam Rayburn Reservoir.

        The proposed amendment to §57.1000, concerning Prohibited Transport of Live Nongame Fish, would add tributaries of the Red River in Grayson, Fannin, Lamar, Red River, and Bowie counties to the list of designated waters from which the transport of live nongame fish is prohibited. The proposed amendment is intended to prevent the spread of invasive carp species to additional Texas waters as a result of being transported live for use as bait. Invasive carp pose an existential threat to native fish populations and can be a potential hazard for boaters. Silver and bighead carp have been documented in the affected waters; therefore, the department believes it is prudent to act now to mitigate against future spread to additional water bodies.

2. Fiscal Note.

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

3. Public Benefit/Cost Note.

        Mr. Macdonald also has determined that for each of the first five years that the rules as proposed are in effect:

        (A) The public benefit anticipated as a result of enforcing or administering the proposed rules will be the dispensation of the agency’s statutory duty to protect and conserve the resources of this state, the duty to equitably distribute opportunity for the enjoyment of those resources among the citizens, and the execution of the commission’s policy to maximize recreational opportunity within the precepts of sound biological management practices.

        There will be no adverse economic effect on persons required to comply with the rules as proposed.

        (B) Under the provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses, micro-businesses, or rural communities. As required by Government Code, §2006.002(g), the Office of the Attorney General has prepared guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small and microbusinesses and rural communities. Those guidelines state that an agency need only consider a proposed rule’s direct adverse economic impacts” to determine if any further analysis is required. The department considers “direct economic impact” to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services.

        The department has determined that the proposed rules, with the exception of the amendment to §57.992, regulate various aspects of recreational license privileges that allow individual persons to pursue and harvest public wildlife resources in this state and therefore do not directly affect small businesses, micro-businesses, or rural communities. Therefore, neither the economic impact statement nor the regulatory flexibility analysis described in Government Code, Chapter 2006, is required. With respect to the proposed amendment to §57.992, department data indicate that there is no commercial effort on Lake Texoma or the Red River involving alligator gar; therefore, there is no adverse impact to small businesses,  microbusinesses, or rural communities and therefore neither the economic impact statement nor the regulatory flexibility analysis described in Government Code, Chapter 2006, is required.

        (C) The department has not drafted a local employment impact statement under the Administrative Procedures Act, §2001.022, as the agency has determined that the rules as proposed will not impact local economies.

        (D) The department has determined that Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rules.

        (E) The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rules.

        (F) In compliance with the requirements of Government Code, §2001.0221, the department has prepared the following Government Growth Impact Statement (GGIS).  The rules as proposed, if adopted, will:

        (1) neither create nor eliminate a government program;

        (2) not result in an increase or decrease in the number of full-time equivalent employee needs;

        (3) not result in a need for additional General Revenue funding;

        (4) not affect the amount of any fee;

        (5) not create a new regulation;

        (6) not limit or repeal an existing regulation, but will expand a regulation (by enlarging the area where alligator gar harvest is prohibited in May);

        (7) neither increase nor decrease the number of individuals subject to regulation; and

        (8) not positively or adversely affect the state’s economy.

4. Request for Public Comment.

      Comments on the proposal may be submitted to Michael Tennant (Inland Fisheries) at (512) 389-8754, e-mail: michael.tennant@tpwd.texas.gov. Comments also may be submitted via the department’s website at http://www.tpwd.texas.gov/business/feedback/public_comment/.

5. Statutory Authority.

        The amendments are proposed 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.

        The proposed amendments affect Parks and Wildlife Code, Chapter 61.

6. Rule Text.

        §57.973. Devices, Means and Methods.

                 (a) – (f) (No change.)

                 (g) Device restrictions. Devices legally used for taking fresh or saltwater fish or shrimp may be used to take crab as authorized by this subchapter.

                         (1) – (14) (No change.)

                         (15) Sail line. For use in salt water only.

                                  (A) – (H) (No change.)

                                  (I) No person may use a sail line for commercial purposes[Sail lines may not be used by the holder of a commercial fishing license.]

                                  (J) – (K) (No change.)

                         (16) – (23) (No change.)

        §57.974. Reservoir Boundaries. Reservoir boundaries for daily bag, possession, and length limits.

                 (1) – (18) (No change.)

                 (19) Lake Texoma in Cooke and Grayson counties comprises all impounded waters of the Red River from the Denison Dam upstream to Sycamore Creek.

                (20)[(19)] Lake Travis in Burnet and Travis Counties comprises all impounded waters of the Colorado River from the Mansfield dam (Lake Travis dam) upstream to the Max Starcke dam (Lake Marble Falls dam) including the Pedernales River upstream to the Hammetts Crossing-Hamilton Pool Road bridge.

                 (21)[(20)] Purtis Creek State Park Lake in Henderson and Van Zandt Counties comprises all waters within the Purtis Creek State Park boundaries.

                 (22) Sam Rayburn Reservoir in Jasper County comprises all impounded waters of the Angelina River from the Sam Rayburn Dam upstream to the Union Pacific railroad bridge.

                 (23)[(21)] Toledo Bend Reservoir in Newton, Sabine, and Shelby counties comprises all impounded waters of the Sabine River from the Toledo Bend Reservoir Dam upstream to the Texas/Louisiana state line.

        §57.981. Bag, Possession, and Length Limits.

                 (a) – (b) (No change.)

                 (c) There are no bag, possession, or length limits on game or non-game fish, except as provided in this subchapter.

                         (1) – (4) (No change.)

                         (5) Except as provided in subsection (d) of this section, the statewide daily bag and length limits shall be as follows.

                                  (A) (No change.)

                                  (B) Bass:

                                          (i) – (iii) (No change.)

                                          (iv) Striped (and their [including] hybrids [and subspecies]).

                                                  (I) – (III) (No change.)

                                          (v) (No change.)

                                  (C) – (H) (No change.)

                                  (I) Gar, alligator.

                                          (i) – (iii) (No change.)

                                          (iv) During May, no person shall [fish for,] take[,] alligator gar from, or [seek to take] possess alligator gar while on, the Red River (including Lake Texoma) and all tributaries that drain directly or indirectly to the Red River on the Texas/Oklahoma border in Cooke, Grayson, Fannin, Lamar, Red River, and Bowie counties [in that portion of Lake Texoma encompassed within the boundaries of the Hagerman National Wildlife Refuge or that portion of Lake Texoma from the U.S. 377 bridge (Willis Bridge) upstream to the I.H. 35 bridge].        

                                  (v) – (vii) (No change.)

                                  (J) – (X) (No change.)

                 (d) Exceptions to statewide daily bag, possession, and length limits shall be as follows:

                         (1) Freshwater species.

                                  (A) – (B) (No change.)

                                  (C) Bass: largemouth

                                          (i) – (ii) (No change.)

                                          (iii) Lakes Bellwood (Smith County), Bois d’Arc (Fannin County), Davy Crockett (Fannin County), Kurth (Angelina County), Mill Creek (Van Zandt County), Moss (Cooke), Nacogdoches (Nacogdoches County), Naconiche (Nacogdoches County), Purtis Creek State Park (Henderson and Van Zandt counties), and Raven (Walker).

                                                  (I) (No change.)

                                                  (II) Maximum length limit: 16 inches. [Minimum length limit: 12 inches.] 

                                                  (III) It is unlawful to retain largemouth bass greater than 16 inches in length. Largemouth bass 24 inches or greater in length may be retained in a live well or other aerated holding device for purposes of weighing but may not be removed from the immediate vicinity of the lake. After weighing the bass must be released immediately back into the lake unless the department has instructed that the bass be kept for donation to the ShareLunker Program.

                                          (iv) – (x) (No change.)

                                  (D) Bass: striped and[ white bass,] their hybrids[, and subspecies].

                                          (i) – (iv) (No change.)

                                                  (E) – (F) (No change.)

                                  (G) Catfish: channel and blue catfish, their hybrids and subspecies.

                                          (i) – (ii) (No change.)

                                          (iii) Lakes Caddo (Harrison and Marion counties), Livingston (Polk, San Jacinto, Trinity, and Walker counties), Sam Rayburn (Angelina, Jasper, Nacogdoches, Sabine, and San Augustine counties [County]), and Toledo Bend (Newton, Sabine and Shelby counties) and the Sabine River (Newton and Orange counties) from Toledo Bend dam to the I.H. 10 bridge.

                                                  (I) – (IV) (No change.)

                                          (iv) – (ix) (No change.)

                                  (H) – (I) (No change.)

                                  (J) Drum, red. Lakes Braunig and Calaveras (Bexar County) [, Coleto Creek Reservoir (Goliad and Victoria counties), and Fairfield (Freestone County)].

                                                        (i) – (iii) (No change.)

                                  (K) Gar, alligator.

                                          (i) – (ii) (No change.)

                                          (iv) During May, no person shall [fish for,] take[,] alligator gar from, or [seek to take] possess alligator gar while on, the Red River (including Lake Texoma) and all tributaries that drain directly or indirectly to the Red River on the Texas/Oklahoma border in Cooke, Grayson, Fannin, Lamar, Red River, and Bowie counties [in that portion of Lake Texoma encompassed within the boundaries of the Hagerman National Wildlife Refuge or that portion of Lake Texoma from the U.S. 377 bridge (Willis Bridge) upstream to the I.H. 35 bridge].

                                  (L) – (N) (No change.)

                                  [(O) Walleye. Lake Texoma (Cooke and Grayson counties).]

                                          [(i) Daily bag limit: 5.]

                                          [(ii) Minimum length limit: 18.]

        This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.

        Issued in Austin, Texas, on

        The amendment is proposed 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.

        The proposed amendment affects Parks and Wildlife Code, Chapter 61.

§57.992. Bag, Possession, and Length Limits.

                 (a) (No change.)

                 (b) There are no bag, possession, or length limits on game fish, non-game fish, or shellfish, except as otherwise provided in this subchapter.

                         (1) – (3) (No change.)

                         (4) The statewide daily bag and length limits for commercial fishing shall be as follows.

                                  (A) (No change.)

                                  (B) Catfish.

                                          (i) channel and blue (including hybrids and subspecies). The provisions of subclauses (I) — (III) of this clause apply on all waters for which an exception is not provided under subclause (IV) of this clause.

                                                  (I) – (III) (No change.)

                                                  (IV) Exceptions.

                                                           (-a-) Lakes Caddo (Harrison and Marion counties), Livingston (Polk, San Jacinto, Trinity, and Walker counties), Sam Rayburn (Angelina, Jasper, Nacogdoches, Sabine, and San Augustine counties [County]), and Toledo Bend (Newton Sabine, and Shelby counties), and the Sabine River (Newton and Orange counties) from Toledo Bend dam to the I.H. 10 bridge.

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

                                                           (-b-) – (-c-) (No change.)

                                          (ii) (No change.)

                                  (C) – (E) (No change.)

                                  (F) Gar, alligator.

                                          (i) – (iii) (No change.)

                                          (iv) During May, no person shall [fish for,] take[,] alligator gar from, or [seek to take] possess alligator gar while on, the Red River (including Lake Texoma) and all tributaries that drain directly or indirectly to the Red River on the Texas/Oklahoma boundary in Cooke, Grayson, Fannin, Lamar, Red River, and Bowie counties [in that portion of Lake Texoma encompassed within the boundaries of the Hagerman National Wildlife Refuge or that portion of Lake Texoma from the U.S. 377 bridge (Willis Bridge) upstream to the I.H. 35 bridge].

                                          (v) – (vi) (No change.)

                                  (G) – (N) (No change.)

        This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.

        Issued in Austin, Texas, on

        The amendment is proposed 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.

        The proposed amendment affects Parks and Wildlife Code, Chapter 61.

        §57.1000. Prohibited Transport of Live Nongame Fish. No person may leave a body of water listed in this section while in possession of a live nongame fish:

                 (1) the Red River and all tributary waters in Grayson, Fannin, Lamar, Red River, and Bowie counties below Lake Texoma downstream to the Texas/Arkansas border;

                 (2) – (3) (No change.)

        This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.

        Issued in Austin, Texas, on


Work Session Item No. 10
Presenter: Robin Riechers

Briefing
Oyster Management Strategies Update
January 26, 2022

I.      Executive Summary:  Texas Parks and Wildlife Department (TPWD) staff will brief the Texas Parks and Wildlife Commission (Commission) on the current status of the oyster fishery. The briefing will include a summary of recent public concerns and potential management strategies that are currently being evaluated. 

II.     Discussion:  Texas oyster reefs have experienced many stressors over the last few decades including hurricane impacts, commercial harvest pressure, flooding and altered freshwater inflows and salinity regimes,  disease, and predators. Landings have ranged between approximately 1.5 to almost 7 million pounds (meat weight) in the last 20 years, but the annual value has trended upward over that time period. More recently, concerns have emerged regarding the degradation and loss of oyster habitat as a result of multiple factors.

Over the past decade, several administrative and legislative conservation measures have been taken to manage the oyster fishery. Measures include creating a license moratorium and buyback program, reducing harvest limits and times, enacting in-season closures when reefs are overworked, requiring the return of 30 percent of cultch material by volume to reefs, permanently closing several sub-bays to harvest, temporarily closing oyster restoration sites to harvest, and creating an oyster mariculture program. TPWD staff has also restored over 500 acres of oyster habitat in the past decade.

TPWD staff will provide a discussion regarding potential additional management options for oyster resources and will present these strategies during the briefing.


Work Session Item No. 11
Presenter: Robin Riechers

Work Session
Statewide Oyster Fishery Proclamation
Closure of Oyster Reef Areas
Request Permission to Publish Proposed Changes in the Texas Register
January 26, 2022

I.      Executive Summary:  With this item, the staff seeks permission to publish proposed changes to the Statewide Oyster Fishery Proclamation in the Texas Register for public comment. The proposed amendment would permanently close reefs in Ayres, Mesquite, and Carlos Bays to harvest. 

II.     Discussion:  Under Texas Parks and Wildlife Code section 76.301, the Texas Parks and Wildlife Commission (Commission) is authorized to regulate the taking, possession, purchase and sale of oysters, including prescribing the times, places, conditions, and means and manner of taking oysters. Under section 76.301b, the Commission shall consider measures to prevent the depletion of oyster beds while achieving, on a continuing basis, the optimum yield for the oystering industry based on the best available scientific information.

The Mesquite Bay complex, including Mesquite, Carlos, and Ayres bays, contains ecologically important and sensitive oyster reefs that provide ecosystem services such as nursery habitat for fish and shoreline protection.  Oyster harvest pressure in this minor bay complex has increased steadily over the past decade, while monitoring data from the Texas Parks and Wildlife Department (TPWD) has shown highly variable trends and an overall lower relative abundance of oysters compared to neighboring bays. The ecological importance and sensitivity of these oyster reefs coupled with the historically high harvest pressure and highly variable oyster relative abundance makes this minor bay complex a candidate for permanent closure from harvest.

Attachment – 1

  1. Exhibit A – Statewide Oyster Fishery Proclamation Proposed Preamble

Work Session Item No. 11
Exhibit A

STATEWIDE OYSTER FISHERY PROCLAMATION

PROPOSAL PREAMBLE

1. Introduction

        The Texas Parks and Wildlife Department (TPWD) proposes an amendment to 31 TAC §58.21, concerning Taking or Attempting to Take Oysters from Public Oyster Beds: General Rules.

        The proposed amendment would prohibit the harvest of oysters in Carlos Bay, Mesquite Bay, and Ayres Bay (hereafter referred to as the Carlos-Mesquite-Ayres complex). The closure to oyster harvest would protect ecologically sensitive and unique oyster habitat from the negative biological impacts of increased harvest pressure.

        Oyster reefs in Texas have been impacted by drought, flooding, and hurricanes (e.g. Hurricane Ike, September 2008 and Hurricane Harvey, August 2017; major flooding in the coastal bend during summer/fall 2021) as well as high harvest pressure.

        In 2017, the department closed six minor bays to oyster harvest (42 TexReg 6018). Those minor bays are unique in that they are relatively shallow systems containing intertidal and shallow-water oyster habitat adjacent to expansive seagrass beds and intertidal vegetation. Historically, oyster resources located in these minor bays and shoreline areas were rarely exploited, as commercial fishing was typically directed towards the more profitable and efficiently harvested reef complexes in larger and deeper waters; thus, the minor bays have functioned as de facto spawning reserves because harvest pressure was minimal and oyster larvae produced from these areas were available to populate oyster habitat on adjacent reefs and bays. However, as oyster resources became depleted on deep-water reefs, commercial harvest effort was redirected to shallow-water reefs. The resultant increase in harvest pressure and the consequent negative impacts to sensitive habitat complexes necessitated regulatory action to prohibit harvest in those systems.

            In 2021, the department became aware of increasing harvest effort for oysters in the Carlos-Mesquite-Ayres complex, which generated concerns with respect to the long-term impacts to habitat within the complex.  To date, the total number of reported commercial vessels reporting harvest from Mesquite Bay (shellfish harvest is reported to the department by harvest area rather than bay system or individual reef system; Mesquite Bay is area TX-28) during the 2021-2022 commercial oyster season is the highest on record (126 unique vessels compared to an average of 51 unique vessels from license year 2015-2021). The department has determined that in terms of ecological importance and risk of habitat loss, the harvest impacts on Carlos-Mesquite-Ayres complex are consistent with similar conditions necessitating the closure in 2017 of the six minor bay systems mentioned previously in this preamble. The Carlos-Mesquite-Ayres complex area is characterized by both intertidal and deeper oyster reefs, expansive seagrass beds, and fringing salt marsh habitats. The orientation of the shallow reefs in the system provide protection against erosion of the shoreline and associated wetlands as well as sensitive seagrass habitats. The proximity of shallow water and intertidal oyster habitat to other estuarine habitat types (e.g., seagrasses and marshes) is a major factor affecting macrofauna (invertebrates that live on or in sediment or attached to hard substrates) density and community composition (Grabowski et al. 2005; Gain et al. 2017). Until recently, sedimentation in Cedar Bayou had made it inaccessible; however, it has been re-opened, allowing activities that affect seagrasses, wetlands, and oyster reefs that serve as critical nursery habitats for young fish and invertebrates recruiting to the estuary (including both red frum and blue crab) to occur via Cedar Bayou pass (Hall et al. 2016). The protection and continued availability of this habitat may increase their growth, survival, and subsequent recruitment to the fishery for these organisms (Byer et al. 2017; Longmire et al. 2021).

        The Carlos-Mesquite-Ayers complex was the site of similar increased harvest pressure in 2016-2017 following the closure of the six minor bays to oyster harvest 2017 mentioned earlier in this preamble, in terms of both the number of commercial oyster boats fishing in this area and oyster landings (e.g., 1,227 vessel trips in Mesquite Bay compared to an average of 1,037 vessel trips in Christmas Bay in 2017). While harvest pressure in the Carlos-Mesquite-Ayres complex declined after the record high during the 2016-17 season, it has increased in recent years. Through November 2021 of the 2021-2022 commercial oyster season, the number of reported commercial vessel trips in Mesquite Bay (784 vessel trips) and the total commercial harvest (21,163 sacks) are the second highest on record, with several months remaining in the season. While landings on many of the reefs in Carlos Bay and Ayres Bay cannot be independently assessed because those data are collected within large harvest areas (in this case, TX- 29 and TX-25, respectively), anecdotal observations reported by the public and department staff indicate increases in harvest in these systems. Further, the department has been contacted by members of the public concerned that the structural integrity of the habitat in this complex has been degraded by oyster harvest effort in terms of physical structure and vertical relief. While the department does not currently have long-term monitoring data on physical habitat structure, live oyster abundance can often be used as a proxy for habitat health, as oyster habitats are biogenic (the organisms create the habitat). Several of the reefs within this complex have live oyster abundance that is below the 25th percentile of average oyster abundance for the entire bay system, indicating that they may have become structurally degraded and thus a priority for restoration.

        Over the past year, oyster reefs in the coastal bend have been negatively impacted by decreased recruitment and oyster mortality and the resultant impacts of commercial oyster fishing pressure that has been redirected to remaining viable reef complexes. The preferred salinity range for oysters is 14-30‰ (mille, or tenth of a percent) for adults and 18-23‰ for egg and larval development. Spat (juvenile oysters) settling is optimized at 16-22‰ with diminishing settlement below 16‰ (Pattillo et. al., 1997). Additionally, when salinities drop below 10‰ "limited or no recruitment" occurs (La Peyre et al., 2013). While spawning in Texas is likely to occur in every month except July and August, peak spawnings are May to early June and again in September and October. During the summer and fall of 2021, many Texas estuaries experienced heavy rainfall and flooding, which brought salinities well below the preferred range for oyster recruitment and survival. Most notably, salinity in Copano Bay dropped below the 10‰ threshold beginning in June 2021, and its monthly average has ranged from 2.7‰ to 7.5‰ from June 2021 to December 2021. Sustained low salinity has resulted in very low recruitment and total oyster mortality in excess of 50% in Copano Bay. Given that Copano Bay typically supported the commercial fishing effort in this area of the coast, much of the commercial fleet has redistributed its effort to higher-salinity portions of the bay during the 2021-2022 commercial oyster season — -primarily the Carlos-Mesquite-Ayers complex. While observed salinities in this area were not as low as those observed in Copano Bay, they were still sub-optimal (i.e., <16‰ from July 2021-November 2021), which will likely impact the ability of the complex to recover from the effects of increased harvest pressure. The significant ecological value and sensitivity of the Carlos-Mesquite-Ayers complex, coupled with the increasing harvest pressure, have produced conditions consistent with those that necessitated the closure of the six minor bay systems in 2017.

        Therefore, the proposed amendment would prohibit oyster harvest in all waters of Carlos Bay and Ayres Bay from a line drawn between two points at the southern end of Carlos Bay (28.11450, -96.92570; 28.11061, -96.88817) to a line drawn between two points at the northern end of Ayers Bay (28.21394, -96.81237; 28.18807, -96.79233), and includes all waters in Mesquite Bay. The proposed amendment would affect 2,129 acres of oyster habitat (approximately 2.8% of coastwide oyster habitat) and prohibit harvest on 54.9% of the oyster reefs in lower Aransas Bay (TX-29), 100% of the reefs in Mesquite Bay (TX-28), and 41.3% of the oyster reefs in lower San Antonio Bay (TX -25).

3. Fiscal Note.

        Dakus Geeslin, Science and Policy Branch Chief, Coastal Fisheries Division, has determined that for each of the first five years that the rule as proposed is in effect, there will be no fiscal implications to state or local governments as a result of administering or enforcing the rule.

4. Public Benefit/Cost Note.

        Mr. Geeslin also has determined that for each of the first five years that the rule as proposed is in effect:

                 (A) The public benefit anticipated as a result of enforcing or administering the proposed rule will be the dispensation of the agency’s statutory duty to protect and conserve the fisheries resources of this state; the duty to equitably distribute opportunity for the enjoyment of those resources among the citizens; the execution of the commission’s policy to maximize recreational opportunity within the precepts of sound biological management practices; and the protection of a reef complex to preserve a continuing supply of oyster larvae to colonize oyster habitat within the bay system.

                 (B) Under provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses and micro-businesses. Those guidelines state that an agency need only consider a proposed rule’s "direct adverse economic impacts" to small businesses and micro-businesses to determine if any further analysis is required. For that purpose, the department considers "direct economic impact" to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services.

        To ensure that this analysis captures every small or micro-business affected by the proposed rules, the department assumes that most, if not all businesses affected by the proposed rules qualify as small or micro-businesses.

        The department has determined that there will be adverse economic effects on small businesses, micro-businesses, and persons required to comply. The proposed rule would affect persons licensed by the department to harvest and sell oysters taken from public water. To evaluate the potential reduction in harvest resulting from the proposed closure of the Carlos-Mesquite-Ayers Bay complex, historical trends in commercial oyster harvest, ex-vessel (dockside, or first sale) value of harvest, and number of commercial oyster vessels reporting were examined for each of these areas. While the Mesquite Bay portion of this complex is its own shellfish harvest area (TX-28), the oyster reefs within the Carlos Bay and Ayers Bay portion of this complex make up 54.9% and 41.3% (respectively) of the oyster reefs within the larger shellfish harvest areas in which they are located (TX-29 and TX-25, respectively). The three-year average (license years 2019-2021) of commercial oyster harvest in Mesquite Bay (TX-28) constitutes 1.0% of the coastwide public season harvest (7,252 sacks). This harvest equates to a three-year average ex-vessel value of $254,021 (1.0% of coastwide value) for a three-year average of 71 commercial oyster boats reporting landings in Mesquite Bay, which equates to an ex-vessel value loss of approximately $3,557 per reporting vessel (Mesquite Bay portion only); however, the department notes that production can be highly variable, as shown in data from the 2016-2017 commercial oyster season, in which harvest from Mesquite Bay produced a record 34,588 sacks, which equates to $1,238,309 ex-vessel value for 113 commercial oyster boats.

        Over the same period (i.e., license years 2019-2021), TX-29 (which contains the Carlos Bay portion of the proposed closure area) experienced a three-year average commercial oyster harvest of 31,758 (4.5% of coastwide landings), which equates to a $1,200,911 average ex-vessel value (4.5% of coastwide value) for an average of 129 commercial oyster boats. Similar to Mesquite Bay, the 2016-2017 commercial oyster season produced the highest landings on record for TX-29 (82,437 sacks), which equates to $2,884,905 ex-vessel value for 179 oyster vessels. The department assumes that landings, ex-vessel value, and number of oyster boat are distributed proportionally to the amount of oyster reef throughout TX-29. Given that 54.9% of the oyster reef in TX-29 is contained in the proposed Carlos Bay closure area, the three-year (license years 2019-2021) average landings, ex-vessel value, and number of oyster boats associated with the Carlos Bay portion of the proposed closure area would be 17,435 sacks (2.5% of coastwide landings) with an ex-vessel value of $659,300 (2.5% of coastwide ex-vessel value) for 71 vessels.

        Lastly, over the same period (i.e., license year 2019-2021), TX-25 (which contains the Ayers Bay portion of the proposed closure area) experienced a three-year average commercial oyster harvest of 110,839 sacks (14.9% of coastwide landings), which equates to a three-year average of $3,963,547 ex-vessel value (14.7% of coastwide ex-vessel value) for an average of 271 commercial oyster boats. The 2019-2020 commercial oyster season produced a record-high harvest of 139,847 sacks, which equates to $5,450,131 ex-vessel value for 336 oyster vessels. The department assumes that landings, ex-vessel value, and number of oyster boats are distributed proportionally to the amount of oyster reef throughout TX-25. Given that 41.3% of the oyster reef in TX-25 is contained in the proposed Ayers Bay closure area, the three-year (license years 2019-2021) average landings, ex-vessel value, and number of oyster boats associated with the Ayers Bay portion of the proposed closure area would be 45,777 sacks (6.1% of coastwide landings) with an ex-vessel value of $1,636,945 (6.1% of coastwide ex-vessel value) for 112 vessels.

        The department estimates that in total the proposed closure of the Carlos-Mesquite-Ayers complex (adjusted proportionally to account for oyster reef) would result in total landings, ex-vessel value, and oyster boats reporting landings of 70,463 sacks (9.6% of coastwide landings) with an ex-vessel value of $2,550,266 for 213 vessels. On that basis, the department estimates that the adverse economic impact to small and micro businesses as a result of the rules would be $11,973 per vessel ($2,550,266 ex-vessel value / 213 reporting vessels).

        There will be no adverse economic impacts to rural communities.

        The department considered several alternatives to achieve the goals of the proposed rule while reducing adverse economic impacts to small and micro-businesses.

        One alternative considered was to maintain the status quo. This alternative was rejected because the department has determined that the current level of harvest in the Carlos-Mesquite-Ayers complex is unsustainable and to allow harvest to continue at the current rate would be to fail to fulfill the departments statutory and regulatory responsibility to protect oyster resources, and by extension, other biologically interconnected systems and fisheries resources in this area.

        A second alternative was to prohibit the take of oysters in smaller areas or restrict the prohibition to a single bay system. The department rejected this alternative because the majority of sensitive and at-risk oyster reefs in this area occur where these bays converge; a closure in a smaller area or a single bay would not be sufficient to arrest or reverse the current negative impacts to oyster resources in the reef complex.

        Another alternative considered was to calculate a maximum sustainable harvest value for the reef complex and allocate that value to licensees on a per-vessel quota basis. This alternative was rejected because it would likely result in each licensee being allocated a harvest quota that would not justify the effort, and in any case, would be difficult for the department to develop and monitor without additional resources.

        (C) The department has not drafted a local employment impact statement under the Administrative Procedures Act, §2001.022, as the agency has determined that the rule as proposed will not impact local economies.

        (D) The department has determined that Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rule.

        (E) The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rule.

                 (F) The department has determined that the proposed rules are in compliance with Government Code §505.11 (Actions and Rule Amendments Subject to the Coastal Management Program).

                 (G) In compliance with the requirements of Government Code, §2001.0221, the department has prepared the following Government Growth Impact Statement (GGIS).  The rule as proposed, if adopted, will:

                         (1) neither create nor eliminate a government program;

                         (2) not result in an increase or decrease in the number of full-time equivalent employee needs;

                         (3) not result in a need for additional General Revenue funding;

                         (4) not affect the amount of any fee;

                         (5) not create a new regulation;

                         (6) will expand an existing regulation (by creating new area closures);

                         (7) neither increase nor decrease the number of individuals subject to regulation; and

                         (8) not positively or adversely affect the state’s economy.

4. Request for Public Comment.

        Comments on the proposed rule may be submitted to Dr. Tiffany Hopper, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-8575; email: cfish @tpwd.texas.gov, or via the department website at www.tpwd.texas.gov.

5. Statutory Authority.

        The amendment is proposed under Parks and Wildlife Code, §76.301, which authorizes the commission to regulate the taking, possession, purchase and sale of oysters, including prescribing the times, places, conditions, and means and manner of taking oysters, and §76.115, which authorizes the commission to close an area to the taking of oysters when the area is to be reseeded or restocked.

        The proposed amendment affects Parks and Wildlife Code, Chapter 76.

6. Rule Text.

        §58.21. Taking or Attempting to Take Oysters from Public Oyster Beds: General Rules.

                 (a) — (b) (No change.)

                 (c) Area Closures.

                         (1) (No change.)

                         (2) No person may take or attempt to take oysters within an area described in this paragraph. The provisions of subparagraphs (A)(i) — (v) and (C) of this paragraph cease effect on November 1, 2022. The provisions of subparagraphs (A)(vi) — (viii) and (B) cease effect on November 1, 2023.

                                  (A) – (I) (No change.) 

                                  (J) Mesquite Bay, Aransas and Calhoun County.

                                  (K) Carlos Bay, Aransas County. The area within the boundaries of Carlos Bay not to extend beyond the boundaries of a line beginning at (28.11450, -96.92570) and ending at (28.11061, -96.88817).  

                                  (L) Ayres Bay, Calhoun County. The area within the boundaries of Carlos Bay not to extend beyond the boundaries of a line beginning at (28.21394, -96.81237) and ending at (28.18807, -96.79233).  

                                  (M) (J) Areas along all shorelines extending 300 feet from the water’s edge, including all oysters (whether submerged or not) landward of this 300-foot line.

        This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.

        Issued in Austin, Texas, on


Work Session Item No. 12
Presenters: Alan Cain
Shawn Gray
Shaun Oldenburger

Work Session
2022-2023 Statewide Hunting and Migratory Game Bird Proclamation
Request Permission to Publish Proposed Changes in the Texas Register
January 26, 2022

I.      Executive Summary:  With this item, the staff seeks permission to publish proposed amendments to the Statewide Hunting Proclamation and the Migratory Game Bird Proclamation in the Texas Register for public comment. The proposed amendments would: 

Deer

Game Bird Regulations

II.     Discussion:  Responsibility for establishing seasons, bag limits, and means and methods for taking wildlife resources is delegated to the Texas Parks and Wildlife Commission under Texas Parks and Wildlife Code chapter 61.  The potential changes are based upon statutory requirements and Commission policy, including scientific investigation and required findings of fact where applicable. The potential changes are intended to increase recreational opportunity, decrease regulatory complexity where possible, promote enforcement, and provide for the sound biological management of the wildlife resources of the state.

Attachments – 2

  1. Exhibit A – Statewide Hunting Proclamation Text
  2. Exhibit B – Migratory Game Bird Proclamation Text

Work Session Item No. 12
Exhibit A

2022-2023 STATEWIDE HUNTING PROCLAMATION

PROPOSAL PREAMBLE

1. Introduction.

        The Texas Parks and Wildlife Department proposes the repeal of §65.4 and amendments to §§65.3, 65.10, 65.11, 65.42, and 65.64, concerning the Statewide Hunting Proclamation.

        The repeal of §65.4, concerning Proof of Sex for Deer is necessary to transfer the contents of that section to §65.10, concerning Possession of Wildlife Resources. Section 65.4 was promulgated earlier this year because of pending rule action in §65.10 to implement rules regarding digital hunting and fishing licenses which made that section unavailable for additional rule action. The proposed repeal will allow the department to comport the provisions of the two sections.

        The proposed amendment to §65.3, concerning Definitions, would modify the definitions of “antlerless” and “buck” deer to further clarify the types of deer to which those terms apply. As a matter of reproductive biology, there are only two types of deer, male (buck) and female (doe). Harvest regulations historically have been centered on directing or deflecting harvest pressure to or away from those segments as necessary to manage population size. As an enforcement matter, however, these distinctions can be problematic because it is not always an easy matter to positively identify a deer as male or female while hunting, especially at a distance or in low visibility conditions. Most male white-tailed deer and mule deer typically develop their first set of distinctive hardened antlers at one and one-half years of age. Antlers are shed annually; thus, for some portion of the year, male deer cannot be readily or easily distinguished from female deer. The same is true of male fawns that have not developed antlers and the small percentage of male fawns with extremely limited antler growth that cannot be readily discerned except upon close inspection (the so-called “nubbin” or “button” bucks). In such situations, a hunter may, upon seeing a deer with no discernible antler characteristics, conclude that the deer is a female deer and legal to harvest as a female deer, only to discover upon harvest that the deer is in fact a male deer, which can be problematic if the harvest of male deer is prohibited at that time. For these reasons, the department many years ago replaced the term “doe” with the term “antlerless deer,” which was intended to accommodate the unintentional but completely understandable circumstance of harvesting of deer that appeared to be female, only to discover otherwise on closer inspection. Another longstanding conundrum has been bucks in velvet. Technically, antlers in velvet are not actually completely hardened antlers yet; thus, the current and historic definition of a buck being “a deer with a hardened antler protruding through the skin” has been occasionally problematic, because to a hunter in the field it is difficult to tell whether an antler is fully in velvet (i.e. an antlerless deer) or not (a legal buck).  In order to be as clear and specific as possible as to the specific types of animals that bag limits, tagging requirements, and proof-of-sex rules for “buck” and “antlerless” apply to, the proposed amendment would clarify that the term “antlerless deer” means a deer having no antler point (a projection extending at least one inch from the edge of a main beam or another tine, which includes the tip of a main beam) protruding through the skin or a buck deer that has completely shed its antlers. The proposed amendment would alter the definition of “buck deer” to apply the same standard; a buck deer is a deer having an antler point protruding through the skin or a deer having antler growth in velvet of greater than one inch.

        The proposed amendment to §65.3 also would create a new definition for “commercial cold storage or processing facility.” Under Parks and Wildlife Code, §42.018, no person except as provided by commission rule may possess the carcass of a deer before the carcass has been finally processed unless the deer has been tagged. In order to be finally processed, a carcass must be at a final destination, which can be either the possessor’s permanent residence or a cold storage or processing facility. The proposed amendment to §65.10 would alter tagging and documentation requirements, which necessitates the creation of new distinctions regarding final destinations. The proposed definition of “commercial cold storage or processing facility” would be “a cold storage or processing facility as defined in Parks and Wildlife Code, §42.001, that is made available for use by individuals other than the owner, the owner’s nonpaying family members, or the owner’s nonpaying guests in exchange for a fee or other consideration.” Parks and Wildlife Code, §62.029, specifically exempts private, noncommercial, family-owned cold storage or processing facilities from the requirement to maintain a cold storage record book for deer that are taken beyond quarters, unless the facility is located on a hunting lease and is made available to individuals other than the landowner, the landowner’s nonpaying family members, or the landowner’s nonpaying guests. In effect, this bifurcates cold storage or processing facilities into two categories, commercial (those available to paying customers) and non-commercial (those available only to non-paying family and guests).  The department has determined that there is a further differentiation with respect to commercial cold storage or processing facilities because some facilities are located on ranches and hunting leases that, while being made available to paying customers (i.e., persons who have paid to hunt on the property), are not open to the general public. Therefore, the proposed amendment would define a “Type 1 commercial cold storage or processing facility” as “a facility that is a place of business open to the public for the purpose of storing or processing game animals or game birds upon demand on a for-profit basis or in exchange for anything of value,” and a “Type 2 commercial cold storage processing facility” as a facility that is not open to the public on an on-demand basis and is utilized to store or process game taken by persons on properties where hunting by individuals in return for pay or other consideration occurs. 

        The proposed amendment to §65.3 also would create a new definition of “final destination.” Under Parks and Wildlife Code, §42.001, a final destination for deer is the permanent residence of the hunter, the permanent residence of another person receiving the carcass, or a cold storage or processing facility. Under current rule, proof of sex (evidence of gender identity) for deer must remain with the carcass until the carcass reaches a final destination and is processed beyond quartering. As noted previously, the department is engaged in a concerted battle to control the spread of CWD. One mitigation strategy is to minimize where possible the extent to which certain body parts of harvested deer are transported from place to place. The department elsewhere in this rulemaking proposes to eliminate proof-of-sex requirements for deer that have been entered into a cold storage record book at a Type 2 commercial cold storage or processing facility (which allows the head, spinal column, etc. to remain at the harvest location), provided the tag for the deer accompanies the meat or remains in the possession of the person possessing the meat until a final destination is reached. Thus, the Type 2 cold storage processing facility would no longer be a final destination.

        As previously noted in this preamble, the proposed amendment to §65.10, concerning Possession of Wildlife Resources, would make alterations to current rules regarding the nature and applicability of tagging and proof-of-sex requirements for deer. Parks and Wildlife Code, §42.018, provides that except as provided by commission rule, no person may possess the carcass of a deer before the carcass has been finally processed unless the deer has been lawfully tagged. Current rule stipulates that in order to be finally processed, a carcass must be at a final destination, which can be either the possessor’s permanent residence or a cold storage or processing facility, and that proof of sex accompany a harvested deer until it reaches a final destination. The proposed amendment would alter those requirements for the reasons noted in the discussion of the proposed amendment to §65.3. It has come to the attention of the department that the requirement that a head remain with a carcass until the carcass is taken beyond quarters at a final destination is problematic at larger commercial cold storage/processing facilities, where immediate removal and disposal of the head is desirable for purposes of allowing hunters to retain the heads of trophy deer and for reasons of sanitation and food safety. Therefore, proposed new subsection (b)(2) would establish the conditions under which tagging requirements for deer cease at Type 1 commercial cold storage or processing facilities. Tagging requirements for a deer at a Type 1 commercial cold storage or processing facility would cease when the required information has been entered into the cold storage record book and the harvest location has been recorded (which may be maintained on a single document or separate documents); however, the cold storage or processing facility would be required to maintain the tag or WRD, as applicable, on premises for so long as the carcass or any part of the carcass remains in possession, which is necessary in case the department needs the tag for evidentiary or investigational purposes. Subsection (b)(3) would require a tag to accompany the meat until the meat reaches a final destination, which is necessary to aid enforcement personnel by furnishing easily verifiable evidence of lawful take. The proposed amendment would create paragraph (4) to make clear that although by statute there is no cold storage or record book requirement at a private, noncommercial cold storage facility, a cold storage record book nonetheless may be maintained if desired and accordingly, tagging and proof-of-sex requirements cease and a carcass may be processed beyond quarters when the required information has been recorded, although the tag from the carcass would be required to be maintained until the meat reaches a final destination. The proposed amendment also would eliminate current subsection (b)(5) to eliminate conflicts of interpretation caused by commission action to alter statutory provision regarding tagging, proof of sex, and final destinations.

        The proposed amendment to §65.10 would also alter provisions governing proof of sex. The movement, and ultimately, the improper disposal of carcasses and carcass parts, particularly skulls, brains, and spinal cords, increases the risk of spreading CWD. Under current rule, proof-of-sex for deer is the head of the deer, which must accompany the carcass until a final destination is reached. The proposed new rule would provide an alternative to the current rules regarding proof of sex for female deer by allowing certain gender-related anatomical parts to accompany the carcass in lieu of the head. This would provide hunters an option to leave the head of a female deer at the site of harvest to reduce risk for the potential spread of CWD from that site.

        The proposed amendment to §65.11, concerning Lawful Means, would make changes necessary to comport the section with the proposed amendment to §65.42, concerning Deer. Under Parks and Wildlife Code, Chapter 43, Subchapter I, in a county that does not permit hunting with a firearm, a hunter may use a crossbow only if the hunter is a person with upper limb disabilities and has an archery hunting stamp. The proposed amendment to §65.42 would allow the use of firearms in four counties where lawful means are currently restricted to archery equipment only; therefore, any person would be able to hunt lawfully with a crossbow during the archery-only season and during the general season.

        The proposed amendment to §65.42, concerning Deer, would allow harvest by firearm in in four counties where lawful means are currently restricted to archery equipment (along with four “doe days” at Thanksgiving), extend the mule deer season in 15 Panhandle counties from nine days to 16 days, and implement antler restriction rules for the harvest of mule deer in 21 additional Panhandle counties.

        The department received a petition for rulemaking requesting that firearms be made lawful for use during the general season in Collin, Dallas, Grayson, and Rockwall counties. Under current rule, harvest in the affected counties is restricted to archery equipment only. The season in Grayson County was closed in 1961 for reasons that the department is not able to determine. With the establishment of the Hagerman National Wildlife Refuge in 1983, the commission in 1984 authorized an archery-only season restricted to the refuge. In 1999 the department expanded the archery-only season countywide at the request of landowners and hunters, and harvest has remained restricted to archery equipment since that time. In 2010 the harvest regulations in effect in Grayson County were implemented in Collin, Dallas, and Rockwall counties (which had been closed for many years) at the request of State Representative Jodie Laubenberg and a finding that allowing take by archery only would not result in depletion or waste.

        The department has determined that there is no biological reason for restricting the means of take for white-tailed deer in Collin, Dallas, Grayson, and Rockwall counties, which is supported by department harvest, population, and habitat data. The majority of the four counties are encompassed within a single Deer Management Unit (DMU 21) and have habitat and deer population characteristics similar to the DMUs surrounding DMU 21. Take of white-tailed deer with a firearm is allowed in the surrounding DMUs. Therefore, the proposed amendment would implement similar harvest regulations in Collin, Dallas, Grayson, and Rockwall counties, consisting of an archery-only season, early and late youth seasons, a general season in which all lawful means may be used, and four “does days” at Thanksgiving (during which antlerless deer may be harvested without a permit, which is in effect in surrounding counties with similar population dynamics, habitat, and harvest pressure). The bag limit would be four deer, no more than two bucks and no more than two antlerless and the “antler restriction rule” would be implemented (to be lawful for take, a buck must have at least one unbranched antler or an inside spread of 13 inches or greater and no person is allowed to take more than one buck with an inside spread of 13 inches or greater). Additionally, the proposed amendment would require all harvested deer in all seasons to be reported to the department via the department’s internet or mobile application within 24 hours of take, which is necessary at least in the short term for the department to monitor and evaluate the effects of the new harvest rule on local populations.

        Finally, the proposed amendment would replace the term “antelope” with the term “pronghorn” where it occurs in the sections affected by this rulemaking. Parks and Wildlife Code, Chapter 63, designates the “pronghorn antelope” as a game species; however, the animal is not a true antelope. In 2020, the department amended §65.3 to stipulate that “pronghorn” means “pronghorn antelope” and has been engaged in a gradual process in the course of various rulemakings of replacing the term where it occurs in agency rules. The department believes it is less cumbersome and more accurate to simply refer to the animal as a pronghorn.

        In 2018, the department implemented an experimental antler restriction regulation for mule deer (prohibiting harvest of bucks with an outside spread of the main beams of less than 20 inches) in six Panhandle counties in response to data indicating an injuriously excessive harvest of young mule deer bucks. The intent of the antler restriction rule was to protect bucks in the younger age cohorts from harvest, allowing them to grow into mature bucks, which in turn results in sex ratios consistent with those found in normal populations. Within three years, population data indicate an improving sex ratio (which is an index of reduced harvest pressure) and harvest data have indicated a steep declining trend in the harvest of young bucks and a steady increasing trend in the harvest of mature (older) bucks. The department therefore believes that the antler restriction regulation is achieving the desired effect and will exert a similar beneficial effect in additional counties that either are experiencing overharvest of young bucks or in which harvest trends indicate overharvest is likely to occur in the future. The department also believes that extending the season from nine days to 16 days in the selected counties can safely provide additional hunting opportunity without the threat of depletion or waste, because the antler restriction will protect approximately 80 percent of the buck population younger than four years of age and the hunting of antlerless mule deer is already strictly controlled by means of permits. The proposed amendment is expected to result in improved sex ratios, a healthier age structure in the buck segment of the herd, and older, more desirable buck deer for hunters. The antler restriction would not be implemented in any part of a county within a CWD management zone (an area where CWD has been detected and certain special provisions regarding harvest reporting and carcass movement are in effect), which is necessary because current science indicates that increased buck harvest in those areas will reduce CWD prevalence rates and may inhibit the spread of CWD into new areas.

        Finally, the proposed amendment would implement the antler restriction rule in Terrell County. Harvest and population data indicate that intense buck harvest has skewed sex ratios and severely reduced buck structure.

        The proposed amendment also would eliminate subsection (a)(5) in order to locate reporting requirements in the specific suites of counties to which they apply.

        The proposed amendment to §65.64, concerning Turkey, would close the spring turkey season east of Interstate Highway 35 in Ellis County. The department has not observed turkeys in the portion of Ellis County east of I-35 in nearly a decade and is conducting stocking operations. Closing that part of the county to harvest will offer additional support in the reestablishment of huntable populations in the future.

2. Fiscal Note.

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

3. Public Benefit/Cost Note.

        Mr. Macdonald also has determined that for each of the first five years that the rules as proposed are in effect:

        (A) The public benefit anticipated as a result of enforcing or administering the proposed rules will be the dispensation of the agency’s statutory duty to protect and conserve the resources of this state, the duty to equitably distribute opportunity for the enjoyment of those resources among the citizens, and the execution of the commission’s policy to maximize recreational opportunity within the precepts of sound biological management practices.

        There will be no adverse economic effect on persons required to comply with the rules as proposed.

        (B) Under the provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses, micro-businesses, or rural communities. As required by Government Code, §2006.002(g), the Office of the Attorney General has prepared guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small and microbusinesses and rural communities. Those guidelines state that an agency need only consider a proposed rule’s “direct adverse economic impacts” to determine if any further analysis is required. The department considers “direct economic impact“ to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services.

        The department has determined that the proposed rules regulate various aspects of recreational license privileges that allow individual persons to pursue and harvest wildlife resources in this state and therefore do not directly affect small businesses, micro-businesses, or rural communities. Therefore, neither the economic impact statement nor the regulatory flexibility analysis described in Government Code, Chapter 2006, is required.

        (C) The department has not drafted a local employment impact statement under the Administrative Procedures Act, §2001.022, as the agency has determined that the rules as proposed will not impact local economies.

        (D) The department has determined that Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rules.

        (E) The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rules.

        (F) In compliance with the requirements of Government Code, §2001.0221, the department has prepared the following Government Growth Impact Statement (GGIS).  The rules as proposed, if adopted, will:

                 (1) neither create nor eliminate a government program;

                 (2) not result in an increase or decrease in the number of full-time equivalent employee needs;

                 (3) not result in a need for additional General Revenue funding;

                 (4) not affect the amount of any fee;

                 (5) not create a new regulation;

                 (6) not repeal, expand, or limit an existing regulation;

                 (7) neither increase nor decrease the number of individuals subject to regulation; and

                 (8) not positively or adversely affect the state’s economy.

4. Request for Public Comment.

        Comments on the proposal may be submitted to Robert Macdonald at (512) 389-4775, e-mail: robert.macdonald@tpwd.texas.gov. Comments also may be submitted via the department’s website at http://www.tpwd.texas.gov/business/feedback/public_comment/.

5. Statutory Authority.

        The amendments are proposed 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.  The amendments are also proposed under the authority of Parks and Wildlife Code, Chapter 42, which authorizes the commission to modify or eliminate the tagging, carcass, final destination, or final processing requirements or provisions provided by Parks and Wildlife Code, Chapter 42.

        The proposed amendments affect Parks and Wildlife Code, Chapter 61 and Chapter 42.

6. Rule Text

        §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) – (5) (No change.)

                 (6) Antlerless deer —

                         (A) A deer having no [hardened] antler point protruding through the skin.  

                         (B) A buck deer that has completely shed its antlers.

                 (7) – (10) No change.)

                 (11) Buck deer —

                         (A) A deer having an [hardened]antler point protruding through the skin; or

                         (B) a deer having antler growth in velvet of greater than one inch.

                         (12) (No change.)

                 (13) Commercial cold storage or processing facility — A cold storage or processing facility as defined in Parks and Wildlife Code, §42.001, that is made available for use by individuals other than the owner, the owner’s nonpaying family members, or the owner’s nonpaying guests in exchange for a fee or other consideration.

                         (A) A Type 1 commercial cold storage or processing facility is a facility that is a place of business open to the public for the purpose of storing or processing game animals or game birds upon demand on a for-profit basis or in exchange for anything of value.

                         (B) A Type 2 commercial cold storage processing facility is a facility:

                                  (i) that is not open to the public on an on-demand basis; and

                                  (ii) is utilized to store or process game taken by persons on properties where hunting by individuals in return for pay or other consideration occurs.

                 (14)[(13)] Daily bag limit — The quantity of a species of a wildlife resource that may be lawfully taken in one day.

                 (15)[(14)] Day — A 24-hour period of time that begins at midnight and ends at midnight.

                 (16)[(15)] 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.

                 (17) Final destination for deer — for a deer carcass or any part of a deer carcass, a final destination is any of the following:

                         (A) the permanent residence of the hunter;

                         (B) the permanent residence of any other person receiving the carcass or part of a carcass; or

                         (C) a Type 1 commercial cold storage or processing facility.

                 (18)[(16)] Final processing — The cleaning of a dead wildlife resource for cooking or storage purposes. For a deer or pronghorn[antelope] carcass, the term includes the processing of the animal more than by quartering.

                 (19)[(17)] Fully automatic firearm — Any firearm that is capable of firing more than one cartridge in succession by a single function of the trigger.

                 (20)[(18)] Gig — Any hand-held shaft with single or multiple points.

                 (21)[(19)] Herd unit — A discrete geographical area designated by the department for the purpose of population monitoring and permit issuance with respect to pronghorn.

                 (22)[(20)] Landowner — Any person who has an ownership interest in a tract of land, and includes a person authorized by the landowner to act on behalf of the landowner as the landowner’s agent.

                 (23)[(21)] Lawful archery equipment — Longbow, recurved bow, compound bow, and crossbow.

                 (24)[(22)] License year — The period of time for which an annual hunting license is valid.

                 (25)[(23)] Muzzleloader — Any firearm designed such that the propellant and bullet or projectile can be loaded only through the muzzle.

                 (26)[(24)] Permanent residence — One’s domicile. 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.

                 (27)[(25)] Possession limit — The maximum number of a wildlife resource that may be lawfully possessed at one time.

                 (28)[(26)] Pre-charged pneumatic — An air gun or arrow gun for which the propellant is supplied or introduced by means of a source that is physically separate from the air gun or arrow gun.

                 (29)[(27)] Pronghorn — A pronghorn antelope (Antilocapra americana).

                 (30)[(28)] Silencer or sound-suppressing device — Any device that reduces the normal noise level created when the firearm is discharged or fired.

                 (31)[(29)] Spike-buck deer — A buck deer with no antler having more than one point.

                 (32)[(30)] Unbranched antler — An antler having no more than one antler point.

                 (33)[(31)] Unbranched antlered deer — A buck deer having at least one unbranched antler.

                 (34)[(32)] 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.

                 (35)[(33)] (33) Wildlife resources — Alligators, all game animals, and all game birds.

                 (36)[(34)] (34) Wounded deer — A deer leaving a blood trail.

         §65.10. Possession of Wildlife Resources.

                 (a) For all wildlife resources taken [for personal consumption and] for which there is a possession limit, the possession limit shall not apply after the wildlife resource has reached the possessor’s permanent residence and is finally processed.

                 (b) Under authority of Parks and Wildlife Code, §42.0177, the tagging requirements of Parks and Wildlife Code, §42.018, are modified as follows.

                         (1) At a final destination other than a cold storage or processing facility required to maintain a cold storage record book under the provisions of this subchapter[Parks and Wildlife Code, §62.029,] tagging requirements for a carcass cease when the forequarters, hindquarters, and back straps have been completely severed from the carcass.

                         (2) At a Type 1 commercial cold storage or processing facility, tagging requirements for a carcass cease when:

                                  (A) the information required by Parks and Wildlife Code, §62.029, has been entered into the cold storage record book; and

                                  (B) for each carcass entered into the cold storage record book, the harvest location required to be indicated on a tag or WRD (the county where the deer was harvested and the name of the ranch or property where the deer was harvested) has been recorded by the proprietor or agent of the facility.

                                  (C) The information required by subparagraph (B) of this paragraph may be combined with or appended to the information required to be entered into the cold storage record book or may be maintained separately.

                                 (D) After being detached from a carcass, a tag or WRD, as applicable, shall be retained at the premises of the cold storage or processing facility for as long as the carcass or any part of the carcass remains in the possession of the cold storage or processing facility. 

                         (3)[(2)] At a Type 2 commercial cold storage or processing facility [required to maintain a cold storage record book under the provisions of Parks and Wildlife Code, §62.029,] tagging requirements for a carcass cease when:

                                  (A) the forequarters, hindquarters, and back straps have been completely severed from the carcass; and

                                  (B) the information required under Parks and Wildlife Code, §62.029, has been entered into the cold storage record book that the cold storage or processing facility is required to maintain.

                                  (C) After the information required under Parks and Wildlife Code, §62.029, has been entered into the cold storage record book, a carcass may be taken beyond quarters; however, the tag detached from the carcass shall be retained and must accompany the meat if a person possesses the meat at any place other than a final destination.

                         (4) At a private noncommercial cold storage processing facility as defined in Parks and Wildlife Code, §62.029, where a cold storage record book is maintained, carcass tagging and proof-of-sex requirements cease and the carcass may be taken beyond quarters when the required information has been entered in the cold storage record book; however, a tag that is detached from a carcass shall accompany or be in the physical possession of the person in possession of the meat until the meat reaches a final destination

                         (5)[(3)] Except as provided in paragraph (3)[(4)] of this subsection, the tagging requirements for deer and turkey taken under a digital license issued under the provisions of §53.3(a)(12) of this title (relating to Super Combination Hunting and Fishing License Packages) or under the digital tagging option of §53.4(a)(1) of this title (relating to Lifetime Licenses) are prescribed in subsection (e) of this section.

                         (6)[(4)] A person who has purchased a digital license identified in §53.4(a)(1) of this title and selected the fulfilment of physical tags must comply with the tagging requirements of Parks and Wildlife Code, Chapter 42, and this chapter that are applicable to the tagging of deer and turkey under a license that is not a digital license.

                         [(5) The provisions of this subsection do not modify or eliminate any requirement of this subchapter or the Parks and Wildlife Code applicable to a carcass before it is at a final destination.]

                 (c) – (e) (No change.)

                 (f) Proof of sex for deer and pronghorn[antelope] must remain with the carcass until tagging requirements cease.

                          (1) Proof of sex for deer consists of:
                                  (1) buck: the head, with antlers still attached; and
                                  (2) antlerless:
                                          (A) the head; or
                                          (B) if the deer is female: the mammary organ (udder) or vulva, and tail.
       
                                  [(A) buck: the head, with antlers still attached; and]

                                          [(B) antlerless: the head.]

                                  (2) Proof of sex for pronghorn[antelope] consists of the unskinned head.

                 (g) – (m) (No change.)

        §65.11. Lawful Means. It is unlawful to hunt alligators, game animals or game birds except by the means authorized by this section, and as provided in §65.19 of this title (relating to Hunting Deer with Dogs).

                 (1) (No change.)

                 (2) Archery.

                         (A) A[Except as provided in paragraph (3) of this section, a] person may hunt by means of lawful archery equipment during any open season; however, no person shall hunt deer by lawful archery equipment during a special muzzleloader-only deer season.

                         (B) – (C) (No change.)

                         (D) Lawful archery equipment is the only lawful means that may be used during archery-only seasons[, except as provided in paragraph (3) of this section].

                 (3) Crossbow — Special Provisions.

                         [(A) In Collin, Dallas, Grayson, and Rockwall counties:]

                                  [(i) no person may use a crossbow to hunt deer during the archery-only season unless the person has an upper-limb disability and has in immediate possession a physician’s statement that certifies the extent of the disability; and]

                                  [(ii) any person may hunt deer by means of crossbow during the general open season and the requirements of clause (i) of this subparagraph do not apply.]

                         [(B)] When hunting turkey and all game animals other than squirrels by means of crossbow:

                         (A) [(i)] the crossbow must have a mechanical safety; and

                         (B) [(ii)] the bolt must conform with paragraph (2)(B) and (C) of this section.

                 (4) – (9) (No change.)

        This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.

        Issued in Austin, Texas, on

        The amendments are proposed 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.

        The proposed amendments affect Parks and Wildlife Code, Chapter 61.

        §65.42. Deer.

                 (a) General.

                         (1) – (4) (No change.)

                         [(5) In the counties or portions of counties listed in subsection (b)(2)(H) of this section, antlerless deer harvested on properties not subject to the provisions of §65.29 of this title (relating to Managed Lands Deer (MLD) Programs) must be reported via the department’s internet or mobile application within 24 hours of the time of kill, including antlerless deer harvested during the special seasons established by subsection (b)(5) — (7) of this section.]

                         (b) White-tailed deer. The open seasons and bag limits for white-tailed deer shall be as follows.

                         (1) (No change.)

                         (2) The general open season for the counties listed in this subparagraph is from the first Saturday in November through the first Sunday in January.

                                  (A) – (G) (No change.)

                                  (H) In Austin, Bastrop, Caldwell, Colorado, Collin, Comal (east of IH 35), Dallas, DeWitt, Fayette, Goliad (north of U.S. Highway 59), Gonzales, Grayson, Guadalupe, Hays (east of IH 35), Jackson (north of U.S. Highway 59), Karnes, Lavaca, Lee, Rockwall, Travis (east of IH 35), Victoria (north of U.S. Highway 59), Waller, Washington, Wharton (north of U.S. Highway 59), and Wilson counties:

                                          (i) the bag limit is four deer, no more than two bucks and no more than two antlerless;

                                          (ii) the antler restrictions described in paragraph (3) of this subsection apply; and

                                          (iii) antlerless deer may be taken from Thanksgiving Day through the Sunday immediately following Thanksgiving Day.

                                          (iv) Special provisions.

                                                  (I) In Collin, Dallas, Grayson, and Rockwall counties, all deer harvested on properties not subject to the provisions of §65.29 of this title (relating to Managed Lands Deer (MLD) Programs) must be reported via the department’s internet or mobile application within 24 hours of the time of kill, including deer harvested during any special season established by subsection (b)(5) — (7) of this section.

General.

                                                  (II) In the counties or portions of counties not listed in subclause (I) of this clause, antlerless deer harvested on properties not subject to the provisions of §65.29 of this title (relating to Managed Lands Deer (MLD) Programs) must be reported via the department’s internet or mobile application within 24 hours of the time of kill, including antlerless deer harvested during any special seasons established by subsection (b)(5) — (7) of this section.

                                  [(I) In Collin, Dallas, Grayson, and Rockwall counties there is a general open season:]

                                          [(i) the bag limit is four deer, no more than two bucks and no more than two antlerless;]

                                          [(ii) the antler restrictions described in paragraph (3) of this subsection apply; and]

                                          [(iii) lawful means are restricted to lawful archery equipment, including properties for which MLDP tags have been issued.]

                                  (I)[(J)] In Andrews, Bailey Castro, Cochran, Dallam, Dawson, Deaf Smith, Gaines, Hale, Hansford, Hartley, Hockley, Lamb, Lubbock, Lynn, Martin, Moore, Oldham, Parmer, Potter, Randall, Sherman, Swisher, Terry, and Yoakum counties, the bag limit is three deer, no more than one buck and no more than two antlerless.

                                  (J)[(K)] In Crane, Ector, Loving, Midland, Ward, and Winkler counties:

                                          (i) – (ii) (No change.)

                                  (K)[(L)] In all other counties, there is no general open season.

                         (3) – (7) (No change.)

                 (c) Mule deer. The open seasons and bag limits for mule deer shall be as follows:

                         (1) In Andrews, Armstrong, Bailey, Borden, Briscoe, Carson, Castro,  Childress, Cochran, Coke, Collingsworth, Cottle, Crosby, Dallam, Dawson, Deaf Smith, Dickens, Donley, Fisher, Floyd, Foard, Gaines, Garza, Gray, Hale, Hall, Hansford, Hardeman, Hartley, Hemphill, Hockley, Hutchinson, Kent, King, Knox, Lamb,  Lipscomb, Lubbock, Lynn, Martin, Moore, Motley, Ochiltree, Oldham, Parmer, Potter, Randall, Roberts, Scurry, Sherman, Stonewall, Swisher, Terry, [and] Wheeler and Yoakum counties:

                                  (A) the Saturday before Thanksgiving for 16 consecutive days;

                                  (B) bag limit: one buck; and

                                  (C) antlerless deer may be taken only by Antlerless Mule Deer permit or MLDP tag.

                                 (D) In Andrews, Armstrong, Bailey, Briscoe, Castro, Childress, Cochran, Collingsworth, Cottle, Dawson, Donley, Floyd, Foard,  Gaines, Hale, Hall, Hardeman, Hockley, Lamb, Lynn. Lubbock, Martin, [and] Motley, Parmer, Randall, Swisher, Terry, and Yoakum counties, no person may harvest a buck deer with an outside spread of the main beams of less than 20 inches.

                         (2) In Crane, Crockett, Culberson, Ector, El Paso, Hudspeth, Jeff Davis, Loving, Midland, Presidio, Reagan, Reeves, Upton, Val Verde, Ward, and Winkler counties:

                                  (A) the Friday immediately following Thanksgiving for 17 consecutive days;

                                  (B) bag limit: one buck; and

                                  (C) antlerless deer may be taken only by antlerless mule deer permit or MLDP tag.

                         (3) In Brewster, Pecos, and Terrell counties:

                                  (A) the Friday immediately following Thanksgiving for 17 consecutive days;

                                  (B) bag limit: one buck; and

                                  (C) antlerless deer may be taken by antlerless mule deer permit or MLDP tag only.

                                  (D) In Terrell County, no person may harvest a buck deer with an outside spread of the main beams of less than 20 inches.

                         [(4) In Andrews, Bailey, Castro, Cochran, Dawson, Gaines, Hale, Hockley, Lamb, Lubbock, Lynn, Martin, Parmer, Terry, and Yoakum counties:]

                                  [(A) the Saturday before Thanksgiving for nine consecutive days;]

                                  [(B) bag limit: one buck; and]

                                  [(C) antlerless deer may be taken by antlerless mule deer permit or MLDP tag only.]

                                  [(D) In Lynn County, no person may harvest a buck deer with an outside spread of the main beams of less than 20 inches.]

                         (4)[(5)]  In all other counties, there is no general open season for mule deer.

                         (5)[(6)] Archery-only open seasons and bag and possession limits shall be as follows.

                                  (A) In Andrews, Armstrong, Bailey, Borden, Briscoe, Carson, Castro, Childress, Cochran, Coke, Collingsworth, Cottle, Crane, Crockett, Crosby, Culberson, Dallam, Dawson, Deaf Smith, Dickens, Donley, Ector, El Paso, Fisher, Floyd, Foard, Gaines, Garza, Gray, Hale, Hall, Hansford, Hardeman, Hartley, Hemphill, Hockley, Hudspeth, Hutchinson, Jeff Davis, Kent, King, Knox, Lamb, Lipscomb, Loving, Lubbock, Lynn, Martin, Midland, Moore, Motley, Ochiltree, Oldham, Parmer, Potter, Presidio, Randall, Reagan, Reeves, Roberts, Scurry, Sherman, Stonewall, Swisher, Terry, Upton, Val Verde, Ward, Wheeler, [and] Winkler, and Yoakum counties:

                                          (i) – (ii) (No change.)

                                  (B) (No change.)

                         (6) There are no antler restrictions within a Containment Zone or Surveillance established under the provisions of Subchapter B, Division 1 of this chapter.

        §65.64. Turkey.

                 (a) (No change.)

                 (b) Rio Grande Turkey. The open seasons and bag limits for Rio Grande turkey shall be as follows.

                         (1) – (2) (No change.)

                         (3) Spring season and bag limits.

                                  (A) The counties listed in this subparagraph are in the Spring North Zone. In Archer, Armstrong, Bandera, Baylor, Bell, Bexar, Blanco, Borden, Bosque, Brewster, 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, Ellis (west of Interstate Hwy. 35), Erath, Fisher, Floyd, Foard, Garza, Gillespie, Glasscock, Gray, Guadalupe, Hall, Hamilton, Hardeman, Hartley, Haskell, Hays, Hemphill, Hill, Hood, Howard, Hutchinson, Irion, Jack, Jeff Davis, Johnson, Jones, Kendall, Kent, Kerr, Kimble, King, Kinney (north of U.S. Hwy. 90), Knox, Lampasas, Lipscomb, Llano, Lynn, Martin, Mason, McCulloch, McLennan, Medina (north of U.S. Hwy. 90), Menard, Midland, Mills, Mitchell, Montague, Moore, Motley, Nolan, Ochiltree, Oldham, Palo Pinto, Parker, Pecos, Potter, Randall, Reagan, Real, Roberts, Runnels, San Saba, Schleicher, Scurry, Shackelford, Somervell, Stephens, Sterling, Stonewall, Sutton, Swisher, Tarrant, Taylor, Terrell, Throckmorton, Tom Green, Travis, Upton, Uvalde (north of U.S. Hwy. 90), Val Verde (north of a line beginning at the International Bridge and proceeding along Spur 239 to U.S. Hwy. 90 and thence to the Kinney County line), Ward, Wheeler, Wichita, Wilbarger, Williamson, Wise, and Young counties, there is a spring general open season.

                                          (i) – (ii) (No change.)

                                  (B) – (C) (No change.)

                         (4) (No change.)

                 (c) – (d) (No change.)

        This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.

        Issued in Austin, Texas, on

        The repeal is proposed 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.

        The proposed repeal affects Parks and Wildlife Code, Chapter 61.

        §65.4. Proof of Sex for Deer.

        This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.

        Issued in Austin, Texas, on


Work Session Item No. 12
Exhibit B

2022 — 2023 MIGRATORY GAME BIRD PROCLAMATION

PROPOSAL PREAMBLE

1. Introduction.

        The Texas Parks and Wildlife Department (the department) proposes amendments to §§65.314-65.320, concerning the Migratory Game Bird Proclamation.

        The United States Fish and Wildlife Service (Service) issues annual frameworks for the hunting of migratory game birds in the United States. Regulations adopted by individual states may be more restrictive than the federal frameworks but may not be less restrictive. Responsibility for establishing seasons, bag limits, means, methods, and devices for harvesting migratory game birds within Service frameworks is delegated to the Texas Parks and Wildlife Commission (Commission) under Parks and Wildlife Code, Chapter 64, Subchapter C.

        The proposed amendments specify the season dates for hunting the various species of migratory game birds for 2022-2023. With two exceptions, the proposed rules retain the season structure and bag limits for all species of migratory game birds from last year while adjusting the season dates to allow for calendar shift (i.e., to ensure that seasons open on the desired day of the week), since dates from a previous year do not fall on the same days in following years.

        The proposed amendment to §65.315, concerning Ducks, Coots, Mergansers, and Teal, would remove the explicit restrictions governing daily bag limits for mergansers. At one time, merganser populations were in decline, but populations are now robust and mergansers are plentiful. Since the federal frameworks no longer stipulate a special limit for mergansers, the amendment would allow the take of up to six mergansers per day as part of the aggregate daily bag limit.

        The proposed amendment to §65.316, concerning Geese, would begin and end the season for both dark and light geese in the Western Zone one week earlier than last year. The department’s intent is to adjust for timing in migration and provide greater hunting across the extent of the Western Zone.

        The proposed amendment to §65.317, concerning Special Youth-Only Waterfowl Season, would include special provisions applicable to veterans, as defined by 38 U.S.C. Section 101, and members of the armed forces of the United States on active duty, including members of the national guard and reserves on active duty other than for training. The amendment also would change the title of the section accordingly. The 87th Texas Legislature (RS) enacted Senate Bill 675, which authorizes the commission to provide for special open seasons during which the taking and possession of ducks, geese, mergansers, coots, moorhens, and gallinules are restricted to veterans, as defined by 38 U.S.C. Section 101, and members of the armed forces of the United States on active duty, including members of the national guard and reserves on active duty other than for training, and to combine those seasons with other special seasons. The proposed amendment would combine the current youth-only special season with a special season for active-duty military personnel and military veterans and would prescribe eligibility requirements for participation which is necessary to provide a method of identifying persons legally authorized to participate in the special season. The eligibility requirements are those forms of official governmental documentation and identification that explicitly identify the person to whom they are issued as a member of the active-duty military or a military veteran. Additionally, Senate Bill 675 provides that if rules adopted by the commission require a person participating in the special open season to have in proof of veteran or active-duty status in possession, the rule must also provide that it is a defense to prosecution under that rule that the person produces in court proof of the person’s veteran or active-duty status in accordance with commission rule. Accordingly, the rule as proposed would do so.

2. Fiscal Note.

        Shaun Oldenburger, Wildlife Division Small Game Program Director, has determined that for the first five years that the amendments as proposed are in effect, there will be no additional fiscal implications to state or local governments of enforcing or administering the rules as proposed.

3. Public Benefit/Cost Note.

        Mr. Oldenburger also has determined that for each of the first five years the proposed rules are in effect:

        (A) The public benefit anticipated as a result of enforcing the rules as proposed will be the department’s discharge of its statutory obligation to manage and conserve the state’s populations of migratory game birds for the use and enjoyment of the public, consistent with the principles of sound biological management.

        (B) Under the provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses, micro-businesses, or rural communities. As required by Government Code, §2006.002(g), the Office of the Attorney General has prepared guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small and microbusinesses and rural communities. Those guidelines state that an agency need only consider a proposed rule’s “direct adverse economic impacts” to determine if any further analysis is required. The department considers “direct economic impact” to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services.

        The department has determined that the proposed rules regulate various aspects of recreational license privileges that allow individual persons to pursue and harvest migratory game bird resources in this state and therefore do not directly affect small businesses, micro-businesses, or rural communities. Therefore, neither the economic impact statement nor the regulatory flexibility analysis described in Government Code, Chapter 2006, is required.

        There also will be no adverse economic effect on persons required to comply with the rules as proposed.

        (C) The department has not drafted a local employment impact statement under the Administrative Procedures Act, §2001.022, as the agency has determined that the rules as proposed will not impact local economies.

        (D) The department has determined that Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rules.

        (E) The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rules.

        (F) In compliance with the requirements of Government Code, §2001.0221, the department has prepared the following Government Growth Impact Statement (GGIS).  The rules as proposed, if adopted, will:

                 (1) neither create nor eliminate a government program;

                 (2) not result in an increase or decrease in the number of full-time equivalent employee needs;

                 (3) not result in a need for additional General Revenue funding;

                 (4) not affect the amount of any fee;

                 (5) not create a new regulation, expand or limit an existing regulation;

                 (6) neither increase nor decrease the number of individuals subject to regulation; and

                 (7) not positively or adversely affect the state’s economy.

4. Request for Public Comment.

        Comments on the proposed rules may be submitted via the department website at www.tpwd.texas.gov to Shaun Oldenburger (Small Game Program Director) at 512-389-4778, e-mail: shaun.oldenburger@tpwd.texas.gov.

5. Statutory Authority.

        The amendments are proposed under Parks and Wildlife Code, Chapter 64, which authorizes the Commission and the Executive Director to provide the open season and means, methods, and devices for the hunting and possessing of migratory game birds.

        The proposed amendments affect Parks and Wildlife Code, Chapter 64.

        §65.314. Doves. (Mourning, White-Winged, White-Tipped, White-Fronted Doves)

                 (a) (No change.)

                 (b) Seasons; Daily Bag Limits.

                         (1) North Zone.

                                  (A) Dates: September 1 — November 13, 2022 and December 17, 2022 — January 1, 2023 [September 1 — November 12, 2021 and December 17, 2021 — January 2, 2022].

                                  (B) (No change.)

                         (2) Central Zone.

                                  (A) Dates: September 1 – October 30, 2022[October 31, 2021] and December 17, 2022 — January 15, 2023 [December 18, 2020 — January 14, 2021].

                                  (B) (No change.)

                         (3) South Zone and Special White-winged Dove Area.

                                  (A) Dates: September 2-4 and 9-11, 2022[September 3-5 and 10-12, 2021]; September 14 – October 30, 2022[October 31, 2021]; and December 17, 2022 — January 22, 2023 [December 17, 2021 — January 21, 2022].

                                  (B) Daily bag limit:

                                          (i) from September 2-4 and 9-11, 2022 [on September 3-5 and 10-12, 2021]; 15 white-winged doves, mourning doves, and white-tipped (white-fronted) doves, in the aggregate to include no more than two mourning doves and two white-tipped (white-fronted) doves per day.

                                          (ii) from September 14 – October 30, 2022 and December 17, 2022 — January 22, 2023 [September 14 – October 30, 2021 and December 17, 2021 — January 21, 2022]; 15 mourning doves, white-winged doves, and white-tipped (white-fronted) doves in the aggregate, including no more than two white-tipped (white-fronted) doves per day.

        §65.315. Ducks, Coots, Mergansers, and Teal.

                 (a) (No change.)

                 (b) Season dates and bag limits.

                         (1) HPMMU.

                                  (A) For all species other than "dusky ducks": October 29-30, 2022 and November 4, 2022 — January 29, 2023 [October 29-30, 2021 and November 5, 2021 — January 30, 2022]; and

                                  (B) "dusky ducks": November 7, 2022 — January 29, 2023 [November 8, 2021 — January 31, 2022].

                         (2) North Zone.

                                  (A) For all species other than "dusky ducks": November 12-27, 2022 and December 3, 2022 — January 29, 2023 [November 13 — 28, 2021 and December 4, 2021 — January 30, 2022]; and

                                  (B) "dusky ducks": November 17–27, 2022 and December 3, 2022 – January 29, 2023 [November 18 — 28, 2021 and December 4, 2021 — January 30, 2022].

                         (3) South Zone.

                                  (A) For all species other than "dusky ducks": November 5-27, 2022 and December 10, 2022 — January 29, 2023 [November 6 — 28, 2021 and December 11, 2021 — January 30, 2022]; and

                                  (B) "dusky ducks": November 10-27, 2022 and December 10, 2022 — January 29, 2023 [November 11 — 28, 2021 and December 11, 2021 — January 30, 20221].

                         (4) September teal-only season.

                                  (A) (No change.)

                                  (B) Dates: September 10-25, 2022[11 — 26, 2021].

                 (c) Bag limits.

                         (1) The daily bag limit for ducks and mergansers is six in the aggregate, which may include no more than five mallards (only two of which may be hens); three wood ducks; one scaup (lesser scaup or greater scaup);  two redheads; two canvasbacks; one pintail; and one "dusky" duck (mottled duck, Mexican like duck, black duck and their hybrids) during the seasons established for those species in this section. For all species not listed, the daily bag limit shall be six. The daily bag limit for coots is 15. [The daily bag limit for mergansers is five, which may include no more than two hooded mergansers].

                         (2) The daily bag limit during the September teal-only season is six in the aggregate.

        §65.316. Geese.

                 (a) (No change.)

                 (b) Season dates and bag limits.

                         (1) Western Zone.

                                  (A) Light geese: November 5, 2022 — February 5, 2023 [November 13, 2021 — February 13, 2022]. The daily bag limit for light geese is 10, and there is no possession limit.

                                  (B) Dark geese: November 5, 2022 — February 5, 2023 [November 13, 2021 — February 13, 2022]. The daily bag limit for dark geese is five, to include no more than two white-fronted geese.

                         (2) Eastern Zone.

                                  (A) Light geese: November 5, 2022 — January 29, 2023 [November 6, 2021 — January 29, 2022]. The daily bag limit for light geese is 10, and there is no possession limit.

                                  (B) Dark geese:

                                          (i) Season: November 5, 2022 — January 29, 2023 [November 6, 2021 — January 30, 2022];

                                          (ii) (No change.)

                 (c) September Canada goose season. Canada geese may be hunted in the Eastern Zone during the season established by this subsection. The season is closed for all other species of geese during the season established by this subsection.

                         (1) Season dates: September 10-25, 2022 [September 11 — 26, 2021].

                         (2) (No change.)

                 (d) Light Goose Conservation Order. The provisions of paragraphs (1) — (3) of this subsection apply only to the hunting of light geese. All provisions of this subchapter continue in effect unless specifically provided otherwise in this section; however, where this section conflicts with the provisions of this subchapter, this section prevails.

                         (1) – (3) (No change.)

                         (4) Season dates.

                                  (A) From January 30 – March 12, 2023[January 31 — March 13, 2022], the take of light geese is lawful in the Eastern Zone.

                                  (B) From February 6 — March 12, 2023 [February 14 — March 13, 2022], the take of light geese is lawful in the Western Zone.

        §65.317. Special Youth, Active Duty Military, and Military Veteran[Youth-Only] Seasons[Waterfowl Season].

                 (a) Special Youth Waterfowl Season. There shall be a Special Youth-Only Season for waterfowl, during which the hunting, taking, and possession of geese, ducks, mergansers, and coots is restricted to licensed hunters 16 years of age and younger accompanied by a person 18 years of age or older, except for persons hunting by means of falconry under the provisions of §65.320 of this title (relating to Extended Falconry Seasons).

                 (1) HPMMU:

                         (A) season dates: October 22 — 23, 2022 [October 23 — 24, 2021];

                         (B) No change.)

                 (2) North Duck Zone:

                         (A) season dates: November 5 — 6, 2022 [November 6 — 7, 2021];

                         (B) (No change.)

                 (3) South Duck Zone:

                         (A) season dates: Special youth-only season: October 29 — 30, 2022 [October 30 -31, 2021];

                         (B) (No change.)

                 (b) Special Active-Duty Military and Military Veteran Migratory Game Bird Season.

                         (1) There shall be a Special Active-Duty Military and Military Veteran Migratory Game Bird Season for waterfowl, during which the taking and possession of ducks, geese, mergansers, coots, moorhens, and gallinules are restricted to veterans, as defined by 38 U.S.C. Section 101, and members of the armed forces of the United States on active duty, including members of the national guard and reserves on active duty other than for training.

                         (2) While hunting during the special season established by this subsection, a person must have in possession at least one of the forms of documentation listed in this paragraph:

                                  (A) a driver’s license or other state-issued identification indicating that the person to whom it was issued is a veteran of the United States Armed Forces;

                                  (B) a copy of the DD214 or DD215 discharge documentation issued to the person by the United States Department of Defense; or

                                  (C) any other identification issued by the federal government indicating that the person to whom it was issued is a veteran or member of the armed forces on active duty.

                         (3) Season Dates and Bag Limits.

                                  (A) HPMMU:

                                          (i) season dates: October 22 -23, 2022;

                                          (ii) daily bag limits:

                                                  (I) ducks, coots, and mergansers — as specified by §65.315(b)(1) of this title (relating to Ducks, Coots, Mergansers, and Teal);

                                                  (II) geese — as specified by §65.316(b)(1) of this title (relating to Geese); and

                                                  (III) moorhens and gallinules – as specified by §65.319(a)(2) of this title (relating to Gallinules, Rails, Snipe, Woodcock).

                                  (B) North Duck Zone:

                                          (i) season dates: November 5 — 6, 2022;

                                          (ii) daily bag limits:

                                                  (I) ducks, coots, and mergansers — as specified by §65.315(b)(2) of this title;

                                                  (II) geese:

                                                           (-a-) west of IH 35 — as specified by §65.316(b)(1) of this title; and

                                                           (-b-) east of IH 35 — as specified by §65.316(b)(2) of this title.

                                                           (-c-) moorhens and gallinules – as specified by §65.319(a)(2) of this title.

                                  (C) South Duck Zone:

                                          (i) season dates: October 29 — 30, 2022;

                                          (ii) daily bag limits:

                                                  (I) ducks, coots, and mergansers — as specified by §65.315(b)(3) of this title; and

                                                  (II) geese:

                                                           (-a-) west of IH 35 — as specified by §65.316(b)(1) of this title; and

                                                           (-b-) east of IH 35 — as specified by §65.316(b)(2) of this title.

                                                           (-c-) moorhens and gallinules – as specified by §65.319(a)(2) of this title.

                                  (4) It is a defense to prosecution that a person cited for a violation of paragraph (2) produces in court proof of the person’s veteran or active-duty status in accordance with commission rule.

        §65.318. Sandhill Crane.

                 (a) (No change.)

                 (b) Season dates and bag limits.

                         (1) Zone A: October 29, 2022 — January 29, 2023 [October 30, 2021 — January 30, 2022]. The daily bag limit is three.

                         (2) Zone B: November 25, 2022 — January 29, 2023 [November 27, 2021 — January 31, 2022]. The daily bag limit is three.

                         (3) Zone C: December 17, 2022 — January 22, 2023 [December 18, 2021 — January 23, 2022]. The daily bag limit is two.

        §65.319. Gallinules, Rails, Snipe, Woodcock.

                 (a) Gallinules (moorhen or common gallinule and purple gallinule) may be taken in any county during the season established in this subsection.

                         (1) Season dates: September 10-25 and November 5 — December 28, 2022 [September 11 — 26 and November 6 — December 29, 2021].

                         (2) (No change.)

                 (b) Rails may be taken in any county in this state during the season established by this subsection.

                         (1) Season dates: September 10-25 and November 5 — December 28, 2022 [September 11 — 26 and November 6 — December 29, 2021].

                         (2) (No change.)

                 (c) Snipe may be taken in any county of the state during the season established by this subsection.

                         (1) Season dates: November 5, 2022 — February 19, 2023 [November 6, 2021 — February 20, 2022].

                         (2) (No change.)

                 (d) Woodcock may be taken in any county of the state during the season established by this subsection.

                         (1) Season dates: December 18, 2022[2021] — January 31, 2023[2022].

                         (2) (No change.)

        §65.320. Extended Falconry Seasons. It is lawful to take the species of migratory birds listed in this section by means of falconry during the seasons established by this section.

                 (1) Mourning doves, white-winged doves and white-tipped doves: November 18 — December 4, 2022 [November 19 — December 5, 2021].

                 (2) Duck, gallinule, moorhen, rail, and woodcock: January 30 — February 13, 2023 [January 31 — February 14, 2022].

                 (3) – (4) (No change.)

        This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.

        Issued in Austin, Texas, on


Work Session Item No. 13
Presenter: Alan Cain

Work Session
Comprehensive Chronic Wasting Disease (CWD) Management Rules – Triple T Provisions – Request Permission to Publish Proposed Changes in the Texas Register
January 26, 2022

I.      Executive Summary:  With this item, the staff seeks permission to publish a proposed amendment to the Comprehensive Chronic Wasting Disease (CWD) Management Rules regarding movement of deer via Trap, Transport, and Transplant (Triple T) permits. The proposed amendment would lift the current moratorium on the issuance of Triple T permits and establish testing requirements and other provisions regarding prospective trap sites for Triple T activities involving deer. The proposed amendment would: 

II.     Discussion:  Under Texas Parks and Wildlife Code chapter 43, subchapter E, Texas Parks and Wildlife Department may issue permits authorizing the trapping, transporting, and transplanting of game animals and game birds for better wildlife management (popularly referred to as “Triple T” permits). At the November 4, 2021 Texas Parks and Wildlife Commission (Commission) meeting, the Commission adopted extensive revisions to the Comprehensive CWD Management Rules at 31 Texas Administrative Code chapter 65, subchapter B, in response to additional detections of CWD at multiple deer breeding facilities. A component of that rulemaking was a temporary moratorium on the issuance of Triple T permits for deer; however, the Commission directed staff to develop proposed disease-management provisions for rules governing the movement of deer under Triple T permits so as to allow the resumption of Triple T permit activities as soon as possible. The proposed rule (located at Exhibit A) would establish testing requirements and other provisions necessary to allow the resumption of Triple T permit issuance for deer while providing minimum acceptable assurance that CWD is not spread to additional properties, facilities, or populations as a result of Triple T activities.

Attachment – 1

  1. Exhibit A – Proposed Amendment to Triple T Provisions in the Comprehensive CWD Management Rules

Work Session Item No. 13
Exhibit A

COMPREHENSIVE CWD RULES

TRIPLE T PERMIT PROVISIONS

PROPOSAL PREAMBLE

 

1. Introduction.

        The Texas Parks and Wildlife Department (the department) proposes amendments to §65.97, concerning Testing and Movement of Deer Pursuant to a Triple T or TTP Permit. The proposed rule would establish chronic wasting disease (CWD) testing requirements and other provisions for properties that are prospective trap sites for permits to trap, transport, and transplant game animals and game birds (colloquially known as “Triple T” permits). The department earlier this year promulgated rules that made extensive changes to the CWD management rules (46 TexReg 8724) contained in Chapter 65, Subchapter B (commonly referred to as the “comprehensive rules”). Among other things, that rulemaking imposed a temporary moratorium on the issuance of Triple T permits for deer; however, the Parks and Wildlife Commission has directed staff to develop a proposal as quickly as possible to allow resumption of program functionality. The intent of this proposed rulemaking is to restore the availability of the Triple T permit program for deer while minimizing the probability of CWD being spread as a result of deer translocation activities.

        CWD is a fatal neurodegenerative disorder that affects cervid species such as white-tailed deer, mule deer, elk, red deer, sika, and others (susceptible species). CWD is classified as a TSE (transmissible spongiform encephalopathy), a family of diseases that includes scrapie (found in sheep) and bovine spongiform encephalopathy (BSE, found in cattle and commonly known as “Mad Cow Disease”), and variant Creutzfeldt-Jakob Disease (vCJD) in humans. CWD is transmitted both directly (through deer-to-deer contact) and indirectly (through environmental contamination).

        White-tailed deer and mule deer are indigenous species authorized to be regulated by the department under the Parks and Wildlife Code. Under Parks and Wildlife Code, Chapter 43, Subchapter E, the department may issue permits authorizing the trapping, transporting, and transplanting of game animals and game birds for wildlife management (popularly referred to as “Triple T” permits).

        The department, along with the Texas Animal Health Commission (TAHC), has been engaged in an ongoing battle against CWD in Texas since 2002. The recent detections of CWD in multiple deer breeding facilities created an unprecedented situation because it greatly increased the probability that CWD could have been spread to many new locations, including breeder deer release sites that subsequently could become trap sites for deer relocations under Triple T permits, which introduces even greater concerns regarding disease propagation.

        Much remains unknown about CWD. The peculiarities of its transmission (how it is passed from animal to animal), infection rate (the frequency of occurrence through time or other comparative standard), incubation period (the time from exposure to clinical manifestation), and potential for transmission to other species are still being investigated. There is currently no scientific evidence to indicate that CWD is transmissible to humans; however, both the CDC and the World Health Organization strongly recommend testing animals from CWD Zones prior to consumption, and if positive, recommend not consuming the meat. What is known is that CWD is invariably fatal to cervids. Additionally, the apparent persistence of CWD in contaminated environments represents a significant obstacle to eradication of CWD from either captive or free-ranging cervid populations. The potential implications of CWD for Texas and its multi-billion-dollar ranching, hunting, real estate, tourism, and wildlife management-related economies could be significant, unless it is contained and controlled.

        The department has engaged in frequent rulemaking over the years to address both the general threat posed by CWD and the repeated detection of CWD in deer breeding facilities. In 2005, the department adopted rules (30 TexReg 3595) that closed the Texas border to the entry of out-of-state captive white-tailed and mule deer and increased regulatory requirements regarding disease monitoring and record keeping. In 2012, based on recommendations from the department’s CWD Task Force (an ad hoc group of deer management professionals, landowners, veterinarians, scientists, and deer breeders), the department adopted rules (37 TexReg 10231) to implement a CWD containment strategy in response to the detection of CWD in free-ranging mule deer located in the Hueco Mountains, the first detection of CWD in Texas. In 2015, the department discovered CWD in a deer breeding facility in Medina County and adopted emergency rules (40 TexReg 5566) to respond immediately to the threat, followed by rules (41 TexReg 815) intended to function through the 2015-2016 hunting season. Working closely with TAHC and with the assistance of the Center for Public Policy Dispute Resolution of the University of Texas School of Law, the department intensively utilized input from stakeholders and interested parties to develop and adopt comprehensive CWD management rules in 2016 (41 TexReg 5726), including provisions for live testing (“ante-mortem”) of deer for CWD. Since 2002, the department has made a continuous, concerted effort to involve the regulated community and stakeholders in the process of developing appropriate CWD response, management, and containment strategies, including input from the Breeder User Group (an ad hoc group of deer breeders), the CWD Task Force, the Private Lands Advisory Committee (an advisory group of private landowners from various ecological regions of the state), and the White-tailed Deer and Mule Deer Advisory Committees (advisory groups of landowners, hunters, wildlife managers, and other stakeholders).

        The Triple T permit is a deer management tool for land managers and landowners, allowing surplus deer to be moved to places where deer are needed. The department has issued 149 Triple T permits at an average rate of 29.8 permits per year during the past five years. Many of these transplantations involve trapping at sites where breeder deer have been released in the past, as well as at places that have received deer via Triple T permit from other trap sites where breeder deer were released. As mentioned earlier in this preamble, the department engaged in rulemaking earlier this year in response to the recent detections of CWD in multiple deer breeding facilities, from which the department was forced to conclude that the rules in effect were not, as previously believed, adequate for providing assurances that CWD could be detected in breeding facilities before it could be spread to additional breeding facilities and free-ranging populations. Because breeder deer have been released on many properties that could become potential trap sites for Triple T activities, the department became concerned that Triple T activities could be or become a contributor to the spread of CWD.

        Under current rule (which, as noted, is temporarily suspended, but would be restored under the proposed amendment), the department will not issue a Triple T permit unless "not detected" post-mortem test results have been submitted for 15 test-eligible deer from the trap site. The department has determined that this standard provides insufficient confidence that CWD is not present or being spread by Triple T activities, particularly at places where breeder deer have been released in the past. Therefore, the proposed amendment, while retaining the current five-year time window concerning ineligibility for permit issuance as a result of breeder deer releases, would provide for increased surveillance at properties where breeder deer have never been released and at properties where breeder deer were released at least five years prior to permit application, albeit at a higher intensity.

        Unlike deer breeding facilities (where the population is captive and every deer is theoretically available for testing), in free-range settings such as Triple T release sites, not all deer are readily available or in fact easy to locate. As a result, the department concluded that post-mortem testing of harvested deer was the most viable and appropriate vehicle for establishing a reasonable confidence that CWD does not exist at the trap site. The proposed amendment would impose a basic testing regime by requiring, prior to authorization of any trapping activities under a Triple T permit, the post-mortem testing of at least 60 deer (on sites that have never received breeder deer); post-mortem testing of at least 120 deer on sites where breeder deer have been released; the tagging of all deer released under a Triple T permit; and continuous post-mortem testing on all trap sites at the rate of 15 deer per year in order to maintain trap site eligibility for Triple T permit activities. The proposed amendment would require continuous testing to ensure trap sites are providing long-term surveillance following establishment of trap status (via submission of 60 or 120 “not detected” tests, as applicable) and would provide the department a reasonable degree of confidence that CWD is not present in that deer population, and thus, not likely to be transmitted to other locations and populations if the site is used as a trap site for Triple T activities. Therefore, the proposed amendment would impose a continuous testing regime and stipulate that any gap or lacunae in testing efforts would cause the testing requirements of the section to start over again in order to regain eligibility for trap site status. The 15-deer per year value provides continuous testing following the initial testing of 60 or 120 deer that provided 95% confidence that the disease would have been detected if it existed at a 5% or 2.5% prevalence, respectively, when surveillance began.

        In developing the proposed rule, the department identified three risk categories presented by Triple T trap sites with respect to disease transmission. Of greatest concern are trap sites that are under a hold order or quarantine. A hold order prohibits the movement of a herd, animal, or animal product pending the determination of CWD status. A hold order is issued when a test result of “suspect” at a deer breeding facility (“index facility”) is received and applies to all locations that are epidemiologically connected to that facility, directly or indirectly (i.e., where breeder have been released directly from the suspect breeding facility, or via an intermediate breeding facility). A quarantine restricts animal or animal product movement from or onto a property as a result of verification of the existence of or exposure to CWD. This category of release site is of the greatest concern because deer at such sites have been exposed to a positive breeding facility, are potentially infected and therefore potentially able to spread the disease to additional locations and animals. The current rules prohibit trap-site authorization only for sites that are under a hold order at the time. The proposed amendment would prohibit trapping for Triple T purposes at sites that are subject to a hold order or quarantine and would provide that a property that has been subject to a hold order or quarantine is eligible to be a trap site beginning five years from the date that the hold order or quarantine is lifted. The proposed provision is necessary because evaluation of disease status and mitigation of disease transmission after breeder deer are released are inherently more problematic than evaluation of disease status mitigation of disease transmission before breeder deer are moved from a breeding facility. The current rule was designed to temporarily halt deer movement from affected facilities and locations until testing efficacy could reach acceptable levels; however, given the recent detections of CWD at multiple facilities despite rules intended to prevent it, the department cannot be certain that CWD is not present at prospective trap sites where breeder deer from epidemiological linked facilities have been released in the past.

        Of less, but still very significant concern, are prospective trap sites that have received a breeder deer. This category is of concern because of the continuing detection of CWD in deer breeding facilities. As stated earlier in this preamble and based on epidemiological investigation, it has become quite apparent that the CWD testing requirements in effect for breeding facilities prior to 2021 were inadequate for detecting CWD in a timely fashion. Although the recently adopted comprehensive rules definitively improve disease surveillance at breeding facilities, they do not address the disease-risk scenarios presented by deer released from breeding facilities under the previous rules. Consequently, the proposed amendment would require the submission of a minimum of 120 post-mortem test results of “not detected” collected on prospective trap sites that have been the site of a breeder deer release. The proposed amendment would allow the required 120 post-mortem test samples to be collected and submitted in a single year or over the course of several years, provided a minimum of 15 test results per year are submitted and the samples are collected in consecutive years. The 120-sample standard is the minimum sample size needed to attain 95 percent confidence that CWD is not present at approximately 2.5 percent prevalence for an infinite, homogenous population with random disease distribution. The department notes that CWD (especially at low prevalence) is not randomly distributed and that populations are not completely homogenous (because of barriers such as high fences, habitat type and quality, the presence of humans, and so on); however, site-specific testing at this intensity is expected to provide reasonable assurance that movement from trap sites where breeder deer have been previously released will not result in the spread of CWD to additional areas and populations. Additionally, the amendment as proposed would prohibit the authorization of trapping for Triple T purposes for sites where breeder deer have been released until at least five years after the last release of a breeder deer to the site. In sum, the more stringent testing and trapping requirements for these trap sites should provide adequate assurance that CWD is not spread via Triple T activities involving trap sites where breeder deer have been released in the past.

        The remaining risk category is represented by trap sites that have never received a breeder deer. Compared to the other two categories, these sites are the least likely to present a risk of CWD transmission because there is a demonstrably minimal epidemiological connectivity with deer breeding facilities (which, in Texas and nationally, have been shown to have the greatest capacity to amplify and spread CWD) and they are not located in CWD Containment or Surveillance Zones. The post-mortem testing prescribed by the proposed rules (60 deer prior to permit authorization, 15 deer per year afterwards), in concert with the lower risk of CWD introduction associated with sites that have never received breeder deer, are believed by the department to be adequate to address disease risk. The proposed amendment would allow the required 60 post-mortem tests to be conducted in a single year or over the course of consecutive years, provided a minimum of 15 test results per year are submitted and the samples are collected in consecutive years. The 60-sample standard is the minimum sample size needed to attain 95 percent confidence that CWD is not present at a five percent prevalence for an infinite, homogenous population with random disease distribution.

        The proposed amendment also would reorganize existing provisions by moving the contents of current subsection (a)(3) into the list in subsection (a)(2) of situations in which the department will not authorize trapping for Triple T purposes.

        Additionally, the proposed amendment would remove the provisions of current subsection (b)(2), which provides an exception to testing requirements for the movement of deer from one property to an adjacent, contiguous property under the same ownership by a  Triple T permit, which is necessary to provide acceptable assurances that adequate CWD testing surveillance is in place and the risk of CWD transmission is reduced across the universe of scenarios regarding movement of deer under Triple T permits. The department has determined that although the current rule authorizes the movement of deer under Triple T permits to an adjoining property without testing, the deer population on the release site is for epidemiological purposes completely isolated from the trap site deer population, which represents a CWD transmission risk to additional tracts of land under the same ownership that otherwise may not have been exposed. Consequently, the CWD risk of the trap site must be assessed prior to the movement of any deer in order to gain confidence that CWD is not present.

        The proposed amendment also would prohibit the authorization of trapping activities at any site wholly or partially within a two-mile radius surrounding a property containing a breeding facility that the department has designated NMQ (non-movement qualified, or prohibited from transferring deer) under the provisions of §65.99, concerning Breeding Facilities Epidemiologically Connected to Deer Infected with CWD, but would allow such sites to become eligible to be a trap site once the department has restored MQ status to the facility in question and the provisions of this section as applicable, have been met. The two-mile radius was chosen because it represents the approximate distance used by the department to establish containment zones around properties containing CWD-positive breeding facilities. Additionally, these epidemiologically linked facilities are high-fenced, which further reduces deer movements and distribution and the potential spread of CWD beyond these facilities. Similarly, the proposed amendment would prohibit the authorization of trapping activities at any site wholly or partially within a five-mile radius surrounding a property containing a release site under a hold order or quarantine. The five-mile radius was chosen because it represents the approximate distance used by the department to establish containment zones around properties where CWD has been detected in free-ranging (i.e., not captive) populations.

        The proposed amendment would require all deer released via Triple T permits to be tagged, prior to release, with an external plastic tag, approved by the department, that is brightly colored and clearly visible so as to allow the information on the tag to be read via binoculars or spotting scope at a distance of 100 yards. In the event that CWD is detected at a site that epidemiological investigations reveal is connected to a Triple T release, the department needs to be able to quickly identify the specific deer that were released in order to conduct post-mortem testing. By requiring conspicuous marking of released deer, the department intends to facilitate that.

        Finally, the proposed amendment would specifically provide that changes in property ownership or size do not affect the applicability of the section. The department wishes to be explicitly clear that subdividing a property or transferring ownership following the release of breeder deer will not alter the property’s eligibility or ineligibility for consideration as a trap site for Triple T activities, which is a necessary measure intended to prevent the spread of CWD.

2. Fiscal Note.

        Mitch Lockwood, Big Game Program Director, has determined that for the first five years that the amendment as proposed is in effect, there will be no additional fiscal implications to state or local governments of enforcing or administering the rule as proposed.

3. Public Benefit/Cost Note.

        Mr. Lockwood also has determined that for each of the first five years the proposed rule is in effect:

        (A) The public benefit anticipated as a result of enforcing or administering the proposed rules will be a minimally acceptable probability that CWD will be detected at Triple T trap sites if it exists at a relatively low prevalence and an attendant reduction in the probability of CWD being spread from properties where it might exist to additional populations, thus ensuring the public of continued enjoyment of the resource and the continued beneficial economic impacts of hunting in Texas.

        (B) There will be an adverse economic impact on persons required to comply with the rules as proposed. The impact will be the costs associated with the testing requirements imposed by the proposed amendment, which would consist of the cost of 60 post-mortem CWD tests or the cost of 120 CWD post-mortem tests prior to trapping authorization, and the cost of 15 CWD post-mortem test every year thereafter if the landowner desires to maintain eligibility. The department notes that although the rule stipulates the testing requirements for issuance of Triple T permits, no person is required by any provision of law to obtain Triple T permits; that choice is purely voluntary.

        The cost of a post-mortem CWD test administered by the Texas A&M Veterinary Medicine Diagnostic Lab (TVMDL) is a minimum of $25, to which is added a $7 accession fee (which may cover multiple samples submitted at the same time). If a whole head is submitted to TVDML there is an additional $20 sample collection fee, plus a $20 disposal fee. Thus, the minimum fee for each post-mortem test would be $32, plus any veterinary cost (which the department cannot quantify, as the cost of veterinary services varies greatly from place to place), and the maximum fee for each post-mortem test would be $70. The department notes that it is possible for any person to be trained and certified at no cost to be a sample collector, which would reduce the cost of compliance accordingly. Therefore, the department estimates the maximum cost to persons seeking a Triple T permit for deer would be $8,400 (120 post-mortem tests at a cost of $70 per test).

        (C) Under the provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses and micro-businesses. Those guidelines state that an agency need only consider a proposed rule’s "direct adverse economic impacts" to small businesses and micro-businesses to determine if any further analysis is required. For that purpose, the department considers "direct economic impact" to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services.

        The department has determined that the proposed rule regulates various aspects of the issuance and use of permits that authorize the temporary possession of public wildlife resources and do not authorize the sale or purchase of live game animals and therefore do not directly affect small businesses, micro-businesses, or rural communities. Therefore, neither the economic impact statement nor the regulatory flexibility analysis described in Government Code, Chapter 2006, is required.

        (D) The department has not drafted a local employment impact statement under the Administrative Procedures Act, §2001.022, as the agency has determined that the rules as proposed will not impact local economies.

        (E) The department has determined that Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rules.

        (F) The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rules.

        (G) In compliance with the requirements of Government Code, §2001.0221, the department has prepared the following Government Growth Impact Statement (GGIS).  The rules as proposed, if adopted, will:

                 (1) neither create nor eliminate a government program;

                 (2) not result in an increase or decrease in the number of full-time equivalent employee needs;

                 (3) not result in a need for additional General Revenue funding;

                 (4) not affect the amount of any fee;

                 (5) not create a new regulation, or limit an existing regulation, but will expand an existing regulation (by imposing additional testing requirements on all prospective Triple T permittees);

                 (6) neither increase nor decrease the number of individuals subject to regulation; and

                 (7) not positively or adversely affect the state’s economy.

4. Request for Public Comment.

        Comments on the proposed rules may be submitted to Alan Cain at 830-480-4038, e-mail: alan.cain@tpwd.texas.gov. or via the department website at www.tpwd.texas.gov.

5. Statutory Authority.

        The amendment is proposed under Parks and Wildlife Code, Chapter 43, Subchapter E, which authorizes the commission to make regulations governing the trapping, transporting, and transplanting of game animals

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

6. Rule Text.
        §65.97. Testing and Movement of Deer Pursuant to a Triple T or TTP Permit.

                 (a) General.

                         (1) [On the effective date of this paragraph the department will cease the issuance of Triple T permits for deer until further notice.]

                         [(2)] The department will not issue a Triple T permit authorizing deer to be trapped at a:

                                  (A) site where [release site that has received] breeder deer have been released within five years of the application for a Triple T permit;

                                  (B) release site that is not in compliance with [has failed to fulfill] the applicable testing requirements of this division;

                                  (C) [any] site where a deer has been confirmed positive for CWD;

                                  (D) [any] site where a deer has tested "suspect" for CWD; [or]

                                  (E) [any] site subject to a [under] a hold order or quarantine

                         (F) site wholly or partially within a two-mile radius surrounding a property containing a deer breeding facility that the department has designated NMQ under the provisions of §65.99 of this title (relating to Breeding Facilities Epidemiologically Connected to Deer Infected with CWD); provided however, that such a site is eligible to be a trap site once the department has restored MQ status to the deer breeding facility in question and the provisions of this section, as applicable, have been met; 

                         (G) site wholly or partially within a five-mile radius surrounding a property containing a release site subject to a hold order or quarantine; or 

                         (H) site that the department determines, based on an epidemiological assessment, represents an unacceptable risk for the spread of CWD.

                          [(3) In addition to the reasons for denying a Triple T permit as provided in §65.107 of this title (relating to Permit Application and Processing) and §65.109 of this title (relating to Issuance of Permit), the department will not issue a Triple T permit if the department determines, based on epidemiological assessment and consultation with TAHC that to do so would create an unacceptable risk for the spread of CWD.]

                         (2)[(4)In addition to the marking required by §65.102 of this title (relating to Disease Detection Requirements), all [All] deer released under the provisions of this section must be tagged prior to release in one ear with:

                                  (A) a plastic tag approved by the department that is:

                                          (i) externally applied (affixed so as to be suspended from the ear and not placed within or so as to be obscured by the ear);

                                          (ii) a bright color that distinctly contrasts with the pelage of the deer to which it is attached, as well as any surrounding foliage or background color; and

                                          (iii) clearly visible in such a fashion as to allow the tag to be easily seen and the information on the tag to be read at a distance of at least 100 yards by binoculars, spotting scope, or other magnifying device. 

                                  (B) a button-type RFID tag approved by the department [, in addition to the marking required by §65.102 of this title (relating to Disease Detection Requirements)].

                                  (C) [RFIDthe department may specify the tag information that must be submitted to the department.

                         (3)[(5)] Nothing in this section authorizes the take of deer except as authorized by applicable laws and regulations, including but not limited to laws and regulations regarding seasons, bag limits, and means and methods as provided in Subchapter A of this chapter (relating to Statewide Hunting Proclamation).

                         (4)[(6)] Except for a permit issued for the removal of urban deer, a test result is not valid unless the sample was collected and tested after the Saturday closest to September 30 of the year for which activities of the permit are authorized.

                         (5)[(7)] For permits issued for the removal of urban deer, test samples may be collected between April 1 and the time of application.

                         (6) The provisions of this section apply irrespective of changes in property size or ownership.

                 (b) Testing Requirements for Triple T Permit.

                         (1) The provisions of this paragraph apply on any property identified as a prospective trap site in an application for a Triple T permit if department records indicate deer that were ever in a deer breeding facility have ever been released on that property for any reason. The department will not authorize trapping activities under this paragraph until:

                                  (A) at least five years have elapsed since the last release of breeder deer on the property; and

                                  (B) the applicant has submitted at least 120 post-mortem “Not Detected” test results obtained from deer killed at the prospective trap site. 

                                  (C) The test results required by this subparagraph may be from samples collected during the year in which the permit application is filed; however, if the samples are collected over multiple years prior to permit application:

                                          (i) a minimum of 15 post-mortem “Not Detected” test results from the prospective trap site must be submitted for each year; and

                                          (ii) the period of years for which test results are submitted must be continuous (i.e., if the samples are collected in each of five years, each of four years, each of three years, each of two years, in the year prior to, or in the year of permit application, those years must be consecutive years).

                                          (iii) Test results from samples collected earlier than two years from the last date breeder deer were transferred to the prospective trap site are not valid for the purposes of this section.

                                  (D) Following any trapping activities authorized under a Triple T permit, a minimum of 15 post-mortem “Not Detected” test results must be submitted annually for a property to remain eligible as a trap site for future Triple T permit activities.

                                  (E) The department will not authorize trapping activities at any property where the continuous testing history required by this subparagraph has not been achieved and maintained. 

                                  (F) Eligibility for consideration as a trap site may be re-established by providing a minimum of 120 post-mortem “Not Detected” test results from samples collected:

                                          (i) in the year of or immediately preceding permit application; or

                                          (ii) in multiple years immediately preceding permit application, 

provided a minimum of 15 post-mortem “Not Detected” test results are submitted per year.

                         (2) The provisions of this paragraph apply to a property identified as a prospective trap site in an application for a Triple T permit if department records indicate that breeder deer have never been released on that property for any reason.

                                  (A) The department will not authorize trapping activities until the applicant has submitted at least 60 post-mortem “Not Detected” test results obtained from deer killed at the prospective trap site in accordance with the provisions of this paragraph. 

                                          (i) The test results required by this subparagraph may be from samples collected in the year of the permit application, samples collected the year prior to permit application, or from samples collected in more than one year prior to permit application; however, if the samples are obtained over multiple years prior to the year of permit application:

                                                  (I) a minimum of 15 post-mortem “Not Detected” test results from the prospective trap site must be submitted for each year; and

                                                  (II) the period of years for which test results are submitted must be continuous (i.e., if the samples are collected in each of four years, each of three years, each of two years, the year prior, or the year of permit application, those years must be consecutive years).

                                          (ii) for a property to remain eligible as a trap site for future Triple T permit activities, a minimum of 15 post-mortem “Not Detected” test results from deer at the property must be submitted annually.

                                          (iii) The department will not authorize trapping activities at any property where the continuous annual testing history required by this paragraph has not been achieved and maintained following the issuance of a Triple T permit. 

                                          (iv) Eligibility for consideration as a trap site may be re-established by providing a minimum of 60 post-mortem “Not Detected” test results from samples collected:

                                                  (I) in the year of or the year immediately preceding permit application; or

                                                  (II) in multiple years immediately preceding permit application, provided a minimum of 15 post-mortem “Not Detected” test results are submitted per year.

                         (3) A property that has been subject to a hold order or quarantine is eligible to be a trap site for Triple T activities under the provisions of this section, as applicable, beginning five years from the date that the hold order or quarantine is lifted. 

                         [(1)The department will not issue a Triple T permit unless "not detected" post-mortem test results have been submitted for 15 test-eligible deer from the trap site.]

                         [(2) CWD testing is not required for deer trapped on any property if the deer are being moved to adjacent, contiguous tracts owned by the same person who owns the trap site property.]

                 (c) (No change.)


Work Session Item No. 17
Presenter: James Murphy

Executive Session Only
Litigation Update
January 26, 2022

I.      Executive Summary:  Attorneys for the Texas Parks and Wildlife Department (TPWD) will update and advise the Texas Parks and Wildlife Commission regarding pending or anticipated litigation, including but not limited to the following pending lawsuits: