Texas Parks and Wildlife Commission
Regulations Committee Meeting

Nov. 2, 2005

Commission Hearing Room
Texas Parks & Wildlife Department Headquarters Complex
4200 Smith School Road
Austin, TX 78744

BE IT REMEMBERED, that heretofore on the 2nd day of November, 2005, there came to be heard matters under the regulatory authority of the Texas Parks and Wildlife Commission in the Commission Hearing Room of the Texas Parks and Wildlife Department Headquarters Complex, to wit:





COMMISSIONER FITZSIMONS: Good morning. The Committee meeting will come to order. Before proceeding with any business, Mr. Cook has a statement to make.

MR. COOK: Thank you, sir. A public notice of this meeting containing all items on the proposed agenda has been filed in the office of Secretary of State as required by Chapter 551 of the Government Code, referred to as the Open Meetings Act. I would like for this fact to be noted in the official record of this meeting.

COMMISSIONER FITZSIMONS: Thank you, Mr. Cook. We begin the day with the Regulations Committee, which I now call to order. The first order of business is the approval of the previous Committee meeting minutes, which have already been distributed. Is there a motion for approval?



COMMISSIONER FITZSIMONS: Moved by Commissioner Friedkin, second by Commissioner Ramos. All in favor, please say aye.

(A chorus of ayes.)


(No response.)

COMMISSIONER FITZSIMONS: Hearing none, the motion carries. The next order of business is Chairman's Charges. Mr. Cook?

MR. COOK: Mr. Chairman, Thank you, sir.

Commissioners. In response to the Chairman's directions, we have prepared a list of proposed, suggested people to serve on 16 various advisory committees. We have finalized the appointments to the Coastal Resources Advisory Committee. The Chairman made those appointments, and they held their first meeting this last week.

In addition, as you can see from your agenda, we have developed administrative rules to establish a new advisory committee, the Big Bend Ranch State Park Task Force. From the Regulations Committee perspective, this November Commission meeting is one of the most important meetings of the year. Today, staff will introduce a number of proposals, and I reiterate proposals to the changes in statewide hunting and fishing proclamations.

This is our first opportunity of the year to review current regulations and consider proposed changes as a Commission and with staff. I appreciate your attendance and participation, and am looking forward to it. Thank you, sir.

COMMISSIONER FITZSIMONS: Thank you, Bob. Committee Item 1; Statewide Hunting and Fishing Proclamation preview. Larry McKinney and Robin.

MR. MCKINNEY: Thank you, Mr. Chairman and members. For the record, I am Dr. Larry McKinney, Director of Coastal Fisheries. And with me is Robin Riechers, head of Policy. I appreciate the opportunity to brief you on some proposals we are looking at for our Coastal Fisheries regulations. We will just get started.

The first one is very straightforward. There are two species of sawfish that can occur in the Gulf of Mexico. The large tooth and small tooth. And you can see the difference on the right there. The small tooth has been listed in the Endangered Species Act. And in an effort to try and — these are so rare. We don't really get them very often.

But just as a step to try to protect them when we do get them, we want to prohibit the take of any of these sawfish. Mostly as an educational activity so people who do get them, and you can obviously recognize them when you catch them, just to let them go. That type of thing. So that is really what that proposal is about. As I said, the distribution does occur in the Gulf of Mexico and Texas, but rare.

The next item is in regards to red drum. As I reported to you last year, our efforts to recover and manage red drum have been spectacularly successful. The landings, as you can see here from the coastwide, the coastwide and landings of over 31 percent in some areas, like Aransas and so forth, as high as 76 percent.

So the fish stock is doing really well. That gives us the opportunity to take a look at some options there. For example, we look at the catch per unit effort and our coastwide gill nets as well. You can see that they have been consistently going up, as well as our catch rates for red drum over the 28-inch slot. So that gives us an opportunity to take a look at some issues.

I know that we have been directed by the Commission and Mr. Cook to take a look at simplifying things where we can and removing tags. We want to scope the idea of removing the red drum tag from the license itself. We do get about 7,000 of those a year. But we have gotten all the information we need from that tag process. We no longer need to go through that process, we don't think.

So there are some ideas we could take a look at, at how folks could continue to catch these things. And here are two ideas to be scoped. One is to basically allow one of the three red drum in our allowable bag to be greater than 28 inches. Another one to look at is adding a fourth fish to the current three-bag limit. One of them being over 28. So those are some ideas that we wanted to go out and scope and get some opinion on as to what we can do.

We had the first meeting of our Coastal Resources Advisory Committee meeting last week. I presented these scoping items to them. They were supportive of scoping these ideas, but of the two ideas we put on the table, they liked the first idea, if we had to do one at all. And there was some discussion that we should just leave it as is.

They were content with that, and had some concerns raised over conservation and whether we should be looking for catch-and-release and that type of thing. But they were fine with that. If there is any question, I would be glad to answer them.

COMMISSIONER FITZSIMONS: Is there any administrative costs in the tag, and gathering that information, disseminating it, if you don't need the information any more.

MR. MCKINNEY: That we do? Well, there is some yes. We collect it. We would no longer have to do that, and would obviously have some impact on the license structure itself, give us some more flexibility in what they do with the actual license.

COMMISSIONER FITZSIMONS: You know Robin, that is not a resource issue anymore. You have got the data you need?

MR. RIECHERS: Correct, sir. It started out as a data collection kind of mechanism. But actually when we went to point in sale; we kind of lost that as we moved to point of sale. And given the abundance trends of the greater than 28-inch fish, we believe we can do this basically without any cost to the resource.

COMMISSIONER FITZSIMONS: So regardless of what you do, there is no need to continue to gather that tag information.

MR. MCKINNEY: No, sir.


COMMISSIONER PARKER: Will this in any way affect our revenues by dropping the tag?

MR. MCKINNEY: That tag, no. They don't cost anything for the fisherman, other than for the license. We exchange those costs.

MR. RIECHERS: Those bonus tags are issued free of charge, once they turn in their first tag. So it will have no effect on revenue. The only place it might have just a very minimal effect is some people purchase the special resident fishing license. If they are exempt from another license, they can purchase that to get a bonus red drum tag. But that would be very minor.


COMMISSIONER HOLMES: The only benefit from the tag was collection of information, or were there other ancillary benefits?

MR. RIECHERS: Well, it was twofold. One was the ideal of offering the opportunity to catch some of those larger fish, and actually allowing for the opportunity for a state record in those larger fish. So that is why, one of the rationales for putting that bonus red drum tag in place.

And then also, the data of collection that we could get from that tag. So the reason to keep a one over 28 allowable width within the bag or without the bag, is to still allow for those benefits. Still allow for that state record to be caught and brought in if it in fact occurs.

COMMISSIONER HOLMES: So you eliminate the tag, but you preserve the benefit.

MR. RIECHERS: Correct.

COMMISSIONER PARKER: What did the advisory group say about Option 2? Number two.

MR. MCKINNEY: Well, they felt fine going and scoping it. They just didn't have an opinion. They thought if they were going to — of the options, they just favored the first one.

COMMISSIONER PARKER: They favored the first one?

MR. MCKINNEY: They favored the first one, but they thought we ought to hear from folks as to what others thought about that. And there is going to be some concern about just the conservation issue of going after those big fish, because obviously there are [inaudible] and some concern; does this allow that to kind of a change of philosophy, if you will? But we thought it was at least worth hearing that from folks, and letting them talk about it, because we put a lot of effort, our fishermen have done a lot of work to support this fishery, and at this point, we want to try to get them a reward if we can. And increase that opportunity where there is possibilities.

COMMISSIONER PARKER: Do you have solid information? Do you have solid information as to how number one would affect — can you make a projection, and also, can you give us information likewise on number two, how that might affect the resource?

MR. MCKINNEY: Well, we can certainly show you the graphics here. This is our catch per unit effort on the red drum over 28 inches. You can see the numbers have been on a steady increase. They are high. And then you go back to this last graph of what is actually caught by people. And we could probably put a limit of ten overall and they are only going to catch one or two.

It is kind of like with deer and those types of things. You can give them lots of limits, but people just can't reach it. We are in such good biological shape with redfish right now. We have a wide margin of error.

COMMISSIONER FITZSIMONS: It doesn't make people any better fishermen, though.

MR. MCKINNEY: Yes. That is right. I am in that one category a lot of days, I think. All right. Is there any further questions?

COMMISSIONER FITZSIMONS: If you did option one, that would be more consistent wouldn't it with what we are doing with trout regs?

MR. MCKINNEY: Yes, sir. That would be more in line.

COMMISSIONER FITZSIMONS: So it would be more in line with the streamlining —

MR. MCKINNEY: Yes. Of a consistency issue. Yes, sir. That consistency issue, wherever you can to try to make your regs as consistent so they are easily understood. That is a strong argument for that.

COMMISSIONER PARKER: Will have any more meetings down on the coast with the saltwater folks?

MR. MCKINNEY: Yes. We will of course, scope these up and down the coast. Quite probably.



MR. MCKINNEY: That is what we are doing, is putting these on the table for those.

MR. COOK: Let's talk about that point just a minute, Mr. Parker, because I think that is a very good question. At this point, we are kind of bouncing some of these thoughts and ideas that staff has come up with or that we have heard from the public. And if we agree to go forward, just to hear and listen, then we will be back in January with maybe a modified proposal.

Maybe we will be maybe at that point in January, staff would be saying to you, we ran into lots of opposition to this, or we have got a tremendous amount of support for this, if we tweak it this way. And at that point in time, the official proposal that we would go out to consider statewide in a statewide regs process, regardless of whether it is fish or turkey or deer or whatever it is.

We would go out for public hearings, official public hearings. And the final decision on these would be made at the April Commission meeting. So this is that — you know, if you have got some thoughts on it, if you would rather we lean a little more this way or that way or something totally in addition to what we are talking about, why now is a good time to have that discussion.

MR. MCKINNEY: Yes. Give us some other options or some options that we might not want to even go forward with. But — thank you.

COMMISSIONER FITZSIMONS: Go ahead. Tarpon is next.

MR. MCKINNEY: Tarpon, yes. Another recommendation, looking at removing the requirements for the tarpon tag. In fact, when the tag was put into place, we had hoped to generate some funds and obviously information with it. Over the last several years, we have only sold about 15 a year, so it really hasn't been — haven't really gotten anything out of it.

So our idea would be to go ahead and remove that tag and save us the administrative cost of doing so, and replace it with an idea of having, allowing a one-fish bag limit with a minimum size set at the state record of 87 inches. Give someone the opportunity to bring that state record in. Now of course, we are always concerned with those big fish, and tarpon, of the conservation side of it. So we want to offer some other options as well.

For example, we can already allow the idea of certified scales as a way to weigh them. That is a possibility. And we are going to work to establish a new class of state records, which is length only class, catch-and-release. So if you have catch-and-release, you can measure it and qualify for a state record, based only on length measurements. So we are going to do some things like that to continue to promote catch-and-release for these big fish.

COMMISSIONER FITZSIMONS: I know there has been some rebound in the Galveston area on tarpon. Any good data on other parts of the coast?

MR. RIECHERS: Well, our data basically shows we have relatively been flat. I mean, there is not much of a difference. We may be seeing more in Galveston, and maybe less somewhere else on the coast, as we make those trade-offs. But coastwide, we are seeing about the same numbers as we have seen for many years at this point.

MR. MCKINNEY: But there is a niche industry out there that are targeting tarpon, both in Galveston, Matagorda and other places. There are several guides that this is what they do. And they are successful; they know where to go and can find them. So as long as we don't have some nasty winters, and it stays where we are, that kind of industry will probably still be there. So they are there.

COMMISSIONER FITZSIMONS: What is the limiting factor, bringing that tarpon number up from being flat. Robin? Larry?

MR. MCKINNEY: Well, I will give you it; we are working on that now. In fact, we are trying to put together a project with CCA and others to look at tarpon. There is a proposal that came out of some research out of Miami to use some of these very sophisticated tagging efforts. The basic feeling now is all our tarpon are Mexican based. And they probably spawn down in Mexico, off of Yucatan. And they pass by us on the way up. And whatever happens in Mexico, may have big dictation to how our —

COMMISSIONER FITZSIMONS: Commercial fishing in Mexico is obviously —

MR. MCKINNEY: They do have some impact there. Yes, sir. So we don't know a lot. We are trying to find one. Robin?

MR. RIECHERS: Well, and Larry is correct. A group called Tarpon Tomorrow has held a couple of conferences and probably put together more of a body of research on tarpon than anyone else has. And that has only really occurred in the past five to six years.

COMMISSIONER FITZSIMONS: Is commercial tarpon fishing still legal in Mexico?

MR. MCKINNEY: They do it. Yes, sir.

MR. RIECHER: Whether it is legal or not, it still occurs.

COMMISSIONER MONTGOMERY: If you have other thoughts, interstate, that might make, could we bring those up after this session? This is not our only chance.

MR. COOK: Absolutely, any time.

MR. MCKINNEY: Another area, for black drum, we would — some folks wanted to be able to take a state record of black drum, to be able to certify it. Why you would want to bring in one of those big black drum — but nonetheless, we want to give them the opportunity to do the same thing. So we would propose of course, leaving our bag limit as it is, but to also allow one fish over that minimum state size per day for a record, to go and get it too, if they wish to do so.

Flounder, that is another area which we have some concerns with, although it is a little more encouraging. With the implementation of the buyback program and the shrimping regs in 2000, we are seeing a much more positive trend on flounder, turning around. They are not where we want yet, but at least it is turning around, and that is a good thing.

And you can see by looking at this draft, why that occurred. The mortality for Southern Flounder comes as bycatch basically. And that is where you have to take action. What we are proposing, we are trying to look at what things can we do to help encourage that recovery. Not much at this point, other than taking some fairly drastic steps, naming it a game fish, or something like that.

I don't think we are ready to go that route yet. But there is a small thing that we could take care of, and that is to deal with the fact that there is for the possession and bag limit for flounder, you can actually have 20 flounder, if you go overnight. The giggers will sometimes do that. And there is certainly some anecdotal information that our game wardens gather, and others that we have talked to, that some of this will probably make it into the commercial market.

So it seems that one way to clean this up is just to make bag and possession limits the same; just ten fish, no matter when or where. That would be an incremental step to help us. So that is what we are proposing to scope for now.

Now a fish that we are scoping out and asking to add to the game fish list is the tripletail. It is not at this point. It is an interesting fish; mostly offshore, of course. If you fish offshore, you probably have seen them. But we do get them in all of our bays.

And there is a fairly well-established fishery for them, in Matagorda Bay and to some extent, Sabine. And to the point in Matagorda where the guides there, have actually talked with us and are supportive of naming it a game fish, putting some limits on it, just to protect that fishery to make sure it stays there. So that is what we are proposing here, is to establish a bag and length limits and call it a game fish.

A final issue is something that came up to you in the August meeting. You had two organizations; the Coastal Bend Guides Association and the Aransas Boatmen come up to talk to you about some modifications in our regulation that does not allow bag limits for captain and crews of charters. Basically, on the boat limits, only your clients could have them. They have been — basically they are very supportive of that for specs — for spotted sea trout. They understand that.

But they would — they are concerned. They would like to have some relief on redfish. They feel that would make them a better charter, a longer charter. Because they can go out. As we told you, redfish are doing really well right now. And they take their charters out, and they can get their limits in an hour or so. And so they would like to expand that. That is one of their concerns.

The other is with kingfish, king mackerel. It is legal out in federal waters for crew and captain to have a bag limit. But once they come into Texas waters, it is not. And so they can't land those fish there legally. So they would like to propose that, us to take a look at that in the scoping process.

This is the one item that the Committee — our Coastal Resources committee really had recommended that we shouldn't even go further in scoping this one. That they think that we have fought this battle before, as far as bag limits, and don't we really need to move forward on that. They didn't think we — they thought we had been there. And so that was their recommendation; go forward. I don't necessarily — I mean, I understand their concern there.

But the folks that brought this forward, they work with it very closely, and they would like to have their say. I don't see a problem with allowing folks to have that input on it. But that is the item.

COMMISSIONER FITZSIMONS: Well, certainly, you should have people's input on it, the scope of it. The members of the Coastal Resources Advisory Committee I spoke to I thought made a pretty compelling argument that it is inconsistent with what we have already done on trout. And if we need a larger bag limit to accommodate an improved resource, you do it on the angler side, you don't do it on the fiction of a boat limit, because that really is a fiction. And it is a limit for some —

MR. MCKINNEY: There are other ways to do it. Expanding redfish limit by one, or some of the things we talked about.

COMMISSIONER FITZSIMONS: At least that is how I understood the numbers on that.

MR. MCKINNEY: I think that is a good characterization of the argument. Yes, sir.

COMMISSIONER HOLMES: They recommended dropping both for red drum and king mackerel.

MR. MCKINNEY: Yes, sir. So we just need some guidance whether to carry this further on scoping or to take it off their scoping list.

COMMISSIONER FITZSIMONS: I'd like to hear from the other Commissioners. But it seems to me that there is no harm in scoping it.

COMMISSIONER HOLMES: Well, one should — considerations can be the bag limit. Which is following the previous scope.

COMMISSIONER PARKER: Could you have a different bag limit for crew and captain?

COMMISSIONER FITZSIMONS: Well, that would be problematic as far as — well, I don't know about you. You have got a better memory than I do, but when I go out there, I have to check my little card anyhow, what I'm doing.

COMMISSIONER PARKER: But total fish on the boat —

COMMISSIONER FITZSIMONS: Yes. But that is what we got away from, on speckled trout.

MR. MCKINNEY: The concern, I think, and I will speak for Pete in Law Enforcement that, if we had these differential bag limits, it makes their enforcement quite a bit more difficult.

COMMISSIONER FITZSIMONS: It makes compliance difficult for the angler.

MR. MCKINNEY: Yes. It is difficult. I would be cautious of that.

COMMISSIONER FITZSIMONS: Any other questions on this item? As usual, Regulations sucks all the oxygen out of the room.

MR. MCKINNEY: We just need some guidance from you, Mr. Chairman. Should we proceed with this item?

COMMISSIONER FITZSIMONS: In my opinion, we should scope it.

COMMISSIONER RAMOS: I would agree with that. I would say let's pursue it. Maybe we won't get anywhere, but let's pursue it.

COMMISSIONER FITZSIMONS: People should be entitled to have their say on it.

MR. MCKINNEY: That concludes the —

COMMISSIONER PARKER: Mr. Chairman, one more item.


COMMISSIONER PARKER: I am sure everybody got the notification from Dr. McKinney about the Coastal Fisheries symposium. And I sure would like to urge everybody here, everybody in the audience that has an interest there to attend that. Because there is going to be a lot of information passed out there.

And plus, we are going to have the great honor of having Dr. Sylvia Earl down there, who is a great friend of Dr. McKinney's. And she is — you know, doesn't come around very often, that you get to hear from somebody's mouth that has the expanded brain capacity that that lady has for our ocean.

COMMISSIONER FITZSIMONS: She is the preeminent oceanographer of our time.


COMMISSIONER FITZSIMONS: Did you know I served with Dr. Earl on the Hart Research Board, and that is not an opportunity to miss. We will also be talking there about the most recent Executive Order from the Governor on environmental flows. That you all will be serving on.

MR. MCKINNEY: And thank you for the little blurb there. I appreciate that very much, Commissioner.

COMMISSIONER FITZSIMONS: That is going to be a good opportunity to learn a lot about the coastal issues. Any other questions for Robin or Larry?

(No response.)

MR. MCKINNEY: Thank you, gentlemen.

MR. MCKINNEY: Thank you, Mr. Chairman.

COMMISSIONER FITZSIMONS: Who is next up? Freshwater or Wildlife? Freshwater? Ken?

MR. KURZAWSKI: Good morning, Commissioners. My name is Ken Kurzawski of the Inland Fisheries Division. And today, I would like to go over our potential regulation changes for the upcoming year.

As always, most of these proposals have been developed by our district staffs. They have been reviewed on a regional basis. And then we had a statewide meeting with all of our biologists, where we discussed them in August. And these are the ones that we sort of have made the cut to this point.

The first one is on Lake Colorado City. It is a reservoir in Mitchell County. We have had problems with golden algae in that population in that reservoir the last few years. And one of the species of concern there is the red drum. We had been one of the reservoirs where we had been stocking red drum. We have discontinued that stocking, primarily due to the golden algae, and also the power plant will no longer operate on a regular basis.

The red drum need the warm water, and there is a lot of potential for mortality of those fish if the temperatures drop below 48 degrees. This is similar to last year. We had a similar situation on Lake Nasworthy where we proposed a regulation change.

The regulation changes currently in freshwater, we have for these reservoirs where we are stocking red drum, we have a 20-inch minimum with a three-fish bag. And we are just going to remove the length and bag limit there. Basically, we want to allow anglers to harvest as many of those red drum as possible before they get eliminated from some sort of cold water mortality.

You know those are fish that were stocked in there as a put, grow and take basis. And hopefully anglers can get some use out of them before they succumb to the cold.

Next is Mountain Creek Lake Reservoir in Dallas County. We have — currently, that lake has been under a fish possession ban implemented by the TSDS-DHS in 1999, due to contamination. The fish tissues there have been retested on a regular basis, but the contamination levels are still a health concern. What we are proposing to do is change our regulation.

Right now, we just have the regular state regulations that would allow harvest, under our regulations, to catch and release for all species. This would mirror the regulations that are in place on the possession ban, and we are hoping to sort of do some work there to develop that fishery on a catch-and-release basis for the anglers in that area.

Next, another small reservoir in the Dallas/Fort Worth area, Marine Creek Lake. It is being used with five other lakes in the Operation World Record Program. That is where we are stocking progeny of the ShareLunker fish to try and increase the maximum size of bass. And the other lakes in this program, the other five lakes are managed under exceptions to the statewide length limit, either increase the minimum length, or a slot.

And we are proposing to change the limit on Marine Creek, which currently is a 14-inch minimum to an 18-inch minimum. And the five-fish bag will be retained. And our goal there is to protect those fingerling Operation World Record bass that are stocked in there from harvest for approximately four years. We want to be able to evaluate the growth in those reservoirs in a real world situation, we would like to keep those fish in there for a little length of time to see what they can do. So this will give us an opportunity to do that.

And the final proposal, potential proposal of change we have is currently in West Texas, 17 counties, we have some restrictions on the use of bait fishes to some of the species, native and non-native that are already in the Pecos River watershed. For example, you can still — you can use carp, goldfish and sunfish in those areas, but there are other species that you can't.

This was enacted to protect pupfish in West Texas. We had a problem there with hybridization with the sheepshead minnow, which was a coastal species that was being brought into the area. Those are prohibited from being used. And this has been part of a cooperative agreement we have had with the U.S. Fish and Wildlife Service and New Mexico to protect some of the pupfish.

There is four species out in that area that we have been trying to protect. We are proposing to add Kinney County to that list. This will also benefit the pupfish. And also there is a Devil's River minnow that is only found in Val Verde and Kinney County, and we would like to get some added protection there. Val Verde County is already included in that, and the blue counties are the 17 existing counties. The yellow county is Kinney County, that we are proposing to add to those restrictions. And those are all the proposals we are considering at this time, if anyone has any questions.

COMMISSIONER FITZSIMONS: Ken, that would also — the Kinney County proposal would make that consistent with the Devil's River management plan that we are working on?

MR. KURZAWSKI: Right. That is correct.

COMMISSIONER FITZSIMONS: Those of you that might have read about the Devil's River minnow controversy and listing of that, we have got a lot of land down there we have been working with for a long time to try and really prevent this designation from happening. But someone filed a lawsuit. So we are responding to that.

COMMISSIONER MONTGOMERY: Ken, last year we had a conversation about bowfishing for catfish when that came up. And I wonder if we could add that back. The conversation at the time was late, when we didn't have a chance to re-look at the regulations. But as I remember from the testimony you and Phil gave, that there was really no scientific basis to believe that there would be any damage to the resource.

It is largely a social issue. And there is some law enforcement concerns in wounding the fish, but I am not sure wounding is a criteria for prohibiting hunting or fishing. And it seems to me that if we are committed to enlarging sports and hunting and fishing opportunities, that is one we ought to put back on the agenda. You know, take the right stand on, which is to allow these folks to do that.

I did at Expo go talk to a number of the bowfishermen, who all said, my god, that would really enlarge our opportunities. I know there is a group that is trying to prevent that, but I think that we ought to take the high road and allow something that based on science is not going to affect the resource but will enlarge hunting and fishing opportunities. But, we should take that one back up. It is illegal to bowfish for catfish.

COMMISSIONER FITZSIMONS: But it is just carp and what?


MR. KURZAWSKI: Non-game fishes. That is really one of the major distinctions between a game fish and a non-game fish is the means and methods you can use to harvest them. And especially with the fishes where you have had minimum length limits like catfish and other fishes. We have always been reluctant to allow some sort of a lethal means —

COMMISSIONER FITZSIMONS: The bowfishermen are going to have to be careful. The minimum length they had better be right, because then they can release.

COMMISSIONER MONTGOMERY: I understand. But I think that then puts the monkey on their back, the same way it does red fish.

COMMISSIONER FITZSIMONS: You better guess big.

COMMISSIONER MONTGOMERY: It seems to me if we are going to base our decisions on science, we are talking about such small numbers, it is not going to affect the resource. So I don't know how to handle that particular problem.

But we have got a group of people, of hunter fishermen, hunters or whatever are you going to call them, who would like to enlarge their sport if they can. And we have a resource which is not going to be damaged if we allow the enlargement. It seems to me that we ought to be more flexible in how we define our regulations to allow them to do that.

COMMISSIONER FITZSIMONS: That is a good argument. And then the risk of enforcement, that is their problem.

COMMISSIONER MONTGOMERY: Well, maybe change the size limits for bow fishermen. You know, you don't have to be rigid about it. If we are not — if our issue is, we are going to base our decisions on science, we should base them on science.


COMMISSIONER MONTGOMERY: And opportunity. If we want to increase opportunities, we ought to increase opportunities for people who do things that are — we are trying to encourage conservation by allowing hunting and fishing. That is our basic thesis here.

If we are going to do that, let's have the science behind it, but let's let people have the opportunities who are not damaging the resource, but actually going out there and using the resource, therefore building the constituency for conservation. If we are creating artificial barriers to prevent them, it seems to me it is counterproductive. It is not what we stand for. So I know it is a small issue, it is a small group. But our job is to make sure our policies are consistent and our objectives are consistent. And I think that is one where we are missing what ought to be the fundamental objective here.

COMMISSIONER RAMOS: And I would echo, Phil, what you are saying. I think that it is very important. To the extent that there is little niches or little markets that are there, we need to serve them. And I may not be convinced that that is my support, but I know there is people that would support that. So let's be sensitive to them and create opportunity.

MR. KURZAWSKI: Certainly, we could gather public input on that. I think that after our discussions last year, we did discuss that with the catfish angler organization which was on our Freshwater Advisory Board. And they were somewhat reluctant about it, because they have been trying to increase the visibility that catfish has as a sport fish, rather than just a fish that is out there to harvest. So they were somewhat reluctant to go. That was somewhat counter to their feelings.

COMMISSIONER MONTGOMERY: We will certainly — I am going to stay open-minded on it, until I hear everything, or reconsider at least. But I think that we are not in the business of having individual groups dictate policy. We are here to set policy. And we have taken policy positions contrary to the interests of some groups. But that is why we are in the kitchen, and the heat gets turned up once in a while.

I do think our job is to enlarge hunting and fishing opportunities provided it is consistent with conservation goals. And unless there is some scientific basis, I don't see why we couldn't vary the size limits or other things for bow fishermen, who take a negligible number of the species. And how accurate — to enlarge — to thrive a little bit more than —

COMMISSIONER FITZSIMONS: My guess is their chart is not going to look much different than the redfish chart.

COMMISSIONER MONTGOMERY: You know, I mean, we can't be talking about a lot of fish here.

COMMISSIONER FITZSIMONS: Yes. We are not talking about a lot.

COMMISSIONER MONTGOMERY: I don't think we are going to wipe out —

COMMISSIONER FITZSIMONS: When you cut to the bottom line, you make a very good argument. The bottom line is, you can't make these decisions based on cultural issues which was pointed out as being the real problem. It is not a scientific issue. Now if it is a cultural issue, that is somebody's choice how they want to do it. And I don't think we should be in the business of saying that muzzle loaders are better than double guns are better than semi-automatics or bows or hooks —-

COMMISSIONER MONTGOMERY: But a bow fisherman shoots a fish two size out the size limit, they would be breaking the law today, but are we defining the laws correctly —

COMMISSIONER FITZSIMONS: When you haul a fish in, it doesn't make any difference to the fish.

COMMISSIONER MONTGOMERY: Well, is that really our objective? So I would like us to reconsider that one.

COMMISSIONER FITZSIMONS: Well, let's look at that. I think you have made your point. Let's look at it.

COMMISSIONER PARKER: Good idea. Thank you.

COMMISSIONER FITZSIMONS: What is next? Ken, you are off the hook.


COMMISSIONER FITZSIMONS: Except for the bowfishing.

Mike Berger, Big Game.

MR. BERGER: Good morning, Mr. Chairman, Commissioners. I am Mike Berger, the Wildlife Division Director. And I am here today to talk to you about some proposed changes, or possible changes to the statewide regulations for next year. These would include possible changes to whitetail deer, upland game birds and alligators.

And at the end, we might have a little discussion about the shooting hours for mourning doves. First is the regulation in Upton County for white-tailed deer. You can see the green and the brown areas, the county has a split regulation. The green regulation that is the majority of the county is three deer, one buck, antlerless by permit only. The brown portion, four deer, no more than two bucks. No antlerless permit required.

The population of Upton County has been increasing and expanding through the county. And we would propose to simplify the regulation and increase opportunity by making the county, in this case, all brown, where it would be four deer, no more than two bucks. And no antlerless permit would be required.

We move on to the antler restriction proposal. And as you know, we have had a lot of success with this proposal, starting with the three-year experimental area in six counties in the Oak Prairie. And last year, starting the season we are getting ready to start now, we expanded that to 15 additional counties. And those 21 counties are the ones you see hatched on the map there.

This year, we would propose to add in another 40 counties or portions of counties to that regulation. And those are the green unhatched counties there. And as you will recall, the regulation would call for a change from one deer, a one-buck bag to a two-buck bag. And one of the bucks must have at least one unbranched antler. The other deer would have to have, or could have an inside spread of 13 inches or greater.

To determine if the hunters and landowners in these counties were supportive of these new regulations, we held 31 scoping meetings throughout the area, and conducted a mail survey as well. About 1,100 people attended the scoping meetings, and 992 people responded to this question, that they are — I am satisfied with current buck hunting regulations. And 82 percent disagree. Only 18 percent were supportive of that.

The second statement was, I would support buck harvest regulations that include antler restrictions and a second buck which must be a spike; defined as a deer with one unbranched antler, as described during the meeting tonight. And you can see that had overwhelming support for that. There were 1,061 people at those meetings that responded to that statement.


MR. BERGER: Pardon me?


MR. BERGER: 1,061 of the 1,100 people who attended. So they responded to that. Then we conducted a mail-out public opinion survey to 16,500 people, half of which went to hunters who had bought — a sample of hunters who had bought their license in those counties, and the other half representing owners of ten acres or more, that we took randomly from the tax rolls. And the return was only 13 percent, but we did get some interesting answers to this statement, from the mail survey, it split about half and half, that they were satisfied.

However, the next statement and the same one you can see, that even though they said they were satisfied, 78 percent agreed that they would like the new regulations. So that combined with the —

COMMISSIONER FITZSIMONS: Obviously, they didn't know what the current regulation was.

MR. BERGER: They thought they would be happier with the new one.

COMMISSIONER PARKER: You are talking about my country?

COMMISSIONER FITZSIMONS: I wasn't going to point that out, John.

MR. BERGER: Anyway, we feel that there was very good overwhelming support for these antler restriction regulations in those 40 additional counties. Next we move to current regulations for upland game birds; the game birds or prairie chickens, pheasants, chachalaca, turkeys, bobwhite, and scaled quail.

Overall, the season lengths vary by species and counties, and some bag limits vary by species and county. Our Managed Lands program which has been so successful for deer has been designed to attract landowners to come to us to obtain a wildlife management plan and to begin to implement habitat management practices to improve their habitat for wildlife species that they are interested in. And in doing that, we would look for reasonable incentives that would encourage these landowners to come to us.

So what we would propose is a managed lands program that would encompass all the upland game bird species there. And this is just a depiction of the counties where those species occur and where they are hunted. In developing this proposal, the staff worked closely with the Game Bird Committee and the Texas Quail Council to come up with these proposals for the upland game bird.

So the proposal would be for these species to allow properties with a wildlife management plan to adjust the hunting seasons and/or the bag limits specifically for that property, based on the habitat management practices, and the populations. Managed properties would have to implement habitat management practices just parallel to the Managed Land Deer program. Managed properties would have a harvest quota.

So we would work with the landowners to develop a recommended number, a quota for each species of their interest that occurs on their land for that property. And the number of the habitat practices, the population survey data required, the harvest data required would vary by species.

We don't have these locked down, all of the rock hard proposals for this. But this is the direction that we would go, to basically, to have the habitat management practices that would have to be implemented, and the procedures to work with the landowner to get data to develop a harvest quota for that property. And then that harvest quota could be met within the established season, or perhaps an expanded season. And in this regard, of the daily bag limit that would be established, that would be in effect statewide is not controlled by the quota.

COMMISSIONER FITZSIMONS: Well, it would be controlled by the quota, not by the —

MR. BERGER: Yes, sir. There would be a quota for that property that would not be exceeded during the season.

COMMISSIONER FITZSIMONS: What intrigues me about this is that, well, I think I mentioned to you, a landowner has been very progressive in her management in West Texas. Has mule deer, white-tail, turkey, bobwhite, and scaled quail on her property, not to mention endangered fish. And she said to me, if the purpose of the wildlife management plan is you read it in our ten-year plan, is it really a holistic goal of habitat management, not species-specific, then why do I have — why are all your management plans species-specific?

And I wonder, is this still species-specific? Or is there an option where somebody could have a whole plan for their ranch, and just check off all the species that they are managing.

MR. BERGER: I think that is what we are talking about here. We are talking about a plan for upland game birds. Not everyone is fortunate enough as your friend to have all of those species on their property. So — and some people may wish to emphasize one species over another species. But yes, we overall, we would like to go to management on an ecosystem basis, so that we are managing for the health of the land overall, which would be beneficial to all the species.

So many of the habitat practices that you would be implementing for, again, depending on the area of the state, if the habitat practices that you would implement for deer would be the same ones that we would recommend you implement to benefit quail. Perhaps there is a little difference in intensity, depending on which species you are talking about.

But a person who is doing overall good management, regulation of grazing, use of fire, seeding back to natives, eliminating exotic plants, and those kinds of things, would be probably be eligible for this program under whatever species they wanted. But for regulatory purposes, we would have to have — there has got to be a direction, species by species, I believe.

COMMISSIONER FITZSIMONS: Right. But the plan is designed to be ecosystem based.

MR. BERGER: Yes. I mean —


MR. BERGER: I mean, we work with landowners. The plans are, we are given the direction and the goals for the wildlife management plans, by the landowner.


MR. BERGER: If the landowner wants an overall comprehensive plan, then that is what we provide them.


COMMISSIONER PARKER: I have several questions. Who is going to pay for the manpower, the hours that we send our staff out to look this country over, and say, you have got to do this and this, or that and that. What money, where does that money come from?

MR. BERGER: It comes from the license fees that the hunters pay.


COMMISSIONER PARKER: The license fees. So, it would not come from the upland bird stamp?

MR. BERGER: Well, that gets to be a rather complicated issue. The revenues from the upland bird stamp do go into Fund 9, so it is a portion of Fund 9.

COMMISSIONER PARKER: Okay. So that is all jumbled in.

MR. BERGER: So the answer to that is, yes. It would come from those stamps.

COMMISSIONER PARKER: Okay. My other question is, let's say we have a fellow who lives in — we'll get out of East Texas — put him down in South Texas. And he has got two or three birddogs and he has quail-hunted all of his life. And his buddies have got two or three quail. And they have got a little lease. They have got, say, 1,100 acres up here that belongs to some guy, and they have got that leased. How is this program going to help that class of hunters?

I am not talking about helping large landowners. And I am not talking about people who hunt on the large tracts. I am talking about the people, the average run of the mill quail hunter that is going to see this and they are going to ask me, you know, how is this — I pay my license fee, and I buy a stamp. How is this going to help me?

MR. BERGER: Well, I mean, not every landowner is going to wish to be in this program. We provide our wildlife management planning and technical assistance services to all landowners, regardless of the size of the property. So if a person, if the lessor for example goes to his landowner and says, I want you to get a plan that we can together implement on this property, then we will be happy to work with them to develop a plan.

Now on a smaller property, obviously, the quota is going to be a little different. But if you are wanting to go that route, this gives you the flexibility. The landowner has the flexibility to choose whether they want to be in this program, or they don't want to be in this program. If they want to stay under this statewide regulation, that is entirely their option.

COMMISSIONER PARKER: So you are not going to have a minimum on there that you have got to have 3,000 acres or 2,500.

MR. BERGER: No, sir. That is not what we are contemplating right now.

COMMISSIONER FITZSIMONS: That would be driven by the habitat. Some people have some incredible habitat, for 1,500 acres. And a lot of people don't have much more than 15,000, depending on how they manage it, and what they have.

It seems to me the answer to the question would simply be that the more people you have managing for native habitat for wildlife, the better off the resource is, the better off all hunters and fishermen are. The same way we went from zero to what are we now? 16 million acres?

MR. BERGER: 17-.

COMMISSIONER FITZSIMONS: 17 million acres in wildlife management plans. As an aside, we just added a million and a half acres on mule deer managed lands, like that. And we will add another million and a half next year. There is 3 million acres that were not part of the program that hunters and fishermen, the persons you are talking about can say, that is more land out there that is being managed for hunting and fishing, that gives everybody more opportunity.

COMMISSIONER PARKER: Which leads me to my next question. When we are talking about we have already passed the upland bird stamp and the migratory. And this is — you have to have a stamp to hunt a wild thing that is about that tall. But when we go deer hunting, the only thing you have to have is a general license. Has the open discussion ever been made about — you know, because I am sure that when our people go out in these areas that have managed land permit for deer, be it white-tail or otherwise, that costs money. And I am wondering if there has ever been any discussion about maybe having a $7 deer stamp to help pay for that.

COMMISSIONER FITZSIMONS: That is an interesting point. You know, to me, and correct me if I am wrong, because my history on this only goes back to the days of Black Gap.

MR. BERGER: Yes. Forty years.

COMMISSIONER FITZSIMONS: No, it is only 30. But my guess is that most stamp programs have been driven by — I am trying to think of an exception. Most stamp programs have been driven by a species in trouble, whether it was whitewing. I wouldn't say — maybe in trouble is the wrong word. At risk of habitat loss. Deer, as we know, are doing pretty well in the suburbs and a lot of those other areas. Is that right?

MR. BERGER: Well, I think roughly, the species that need additional emphasis, that maybe weren't getting attention sufficient for at least some people to believe on getting that attention. Sure.

COMMISSIONER FITZSIMONS: Then the monies have gone to habitat restoration.


COMMISSIONER FITZSIMONS: And research. So that would be sort of a fundamental shift in the use of stamps. I am not saying it is a bad idea, but I am trying to get the history of it. Bob? Oh, Donato?

COMMISSIONER RAMOS: Mike, I am trying to understand this. If I have a managed land deer permit, I can then opt to have my property covered by a quail land-managed permit of some sort?

MR. BERGER: If you want to have your wildlife management plan on your property includes management for quail, we would be happy to work with you in that regard. And as you implement those practices, you would fall under this program.

COMMISSIONER RAMOS: And then what happens? Does the landowner then establish the practice, and say, I think I ought to harvest X number of quail? I think my season ought to start three weeks earlier? And be extended a month later? What are the parameters, or how much discretion will the landowner have as compared to us, in either extending the season or expanding the harvest. That is where I am not too clear on this.

MR. BERGER: Well, I think we have to do this by individual species. Because it is going to vary by which one you are talking about. You are talking about quail.

COMMISSIONER RAMOS: We are just talking about quail.

MR. BERGER: If you talk about quail, we would have a — we would consider going in, the fall population going in. And we can do this from a number of density surveys.

COMMISSIONER RAMOS: And who would do those?

MR. BERGER: The landowner would do those. We would be happy to work with the landowner initially to demonstrate and write down what you need to do. But that would be the landowners' responsibility to do those surveys.


MR. BERGER: And then you would take that density of quail on the property, consider what the weather had been that year. You know that in the next year, to start the next breeding season, you need a certain density of quail. And you know that there is some natural mortality that occurs during the winter season, during the hunting period.

So you put those factors together, and you subtract out the natural mortality. Subtract out what the density you need to have in the spring to start the next season, and the difference in there is the number of quail that you can harvest.

COMMISSIONER RAMOS: So basically, the landowner would get a quota and say you can shoot 135 quail, for example.

MR. BERGER: Yes, sir.

COMMISSIONER RAMOS: Now, how about the season? Are we saying, well, you had a wet year. And you have more quail and maybe you should start earlier. Are we talking about extending the seasons?

MR. BERGER: I think in the case of quail, we are not. We already have a four-month-long season for quail that extends late and starts reasonably early.

COMMISSIONER RAMOS: Then that would pose a problem to law enforcement, I would think. If we had a standard season, and then we had a extended season.

MR. BERGER: I am not talking about an extended season.

COMMISSIONER RAMOS: That is what I am saying. So it is a fixed season.

MR. BERGER: Right.

COMMISSIONER RAMOS: And the quota would be fixed by this plan.


COMMISSIONER FITZSIMONS: And the record, and — this was to me, is key to the integrity of the plan — is that the recommendation is going to be key to the carryover, if that is the right term, for the long-term sustain ability of that.

MR. BERGER: That is correct.

COMMISSIONER FITZSIMONS: In this case, quail population. I am starting to think that the real opportunities here may be in some of the other areas; like pheasant and turkey, where, at least in the case of pheasant, you have a pretty restricted season.

MR. BERGER: Well, we just — yes.

COMMISSIONER FITZSIMONS: Really is intensively managing for that, they can build a niche for themselves. So for instance that recommendation might be to take the quota earlier in the season. Therefore, it would have less impact on the carryover, because you have got a certain amount of —

MR. BERGER: I think we are factoring in the — we know that we want a number like .3 birds per acre for carryover.


MR. BERGER: So when you — and we have already factored in what the natural mortality would be. So really, from a biological perspective, it doesn't matter whether you take those early or late.


MR. BERGER: Yes. Just as long as you don't exceed that, and you still have that density, the carryover density to start the next breeding season. So you have that capital as it were, to start praying for rain from —


COMMISSIONER HOLMES: I'd like to explore Donato's comment a little bit further, Mike.

Donato, I think I understood you to say that if you had a season, they could vary the start or finish date, or both. Would that pose a difficulty for enforcement? But we do that in deer now.

MR. BERGER: Right.

COMMISSIONER HOLMES: Is that presenting an enforcement issue?

MR. BERGER: I don't believe it is. Because as you say, we do that for deer now. We issue a managed lands deer permit, which substitutes for a tag in deer. We use a LAMPS permit for antlerless deer in much of East Texas. We have those permits.

So if we were to have — and what I anticipate is that we are going to have a managed lands game bird certificate that would be much like a MLDP that would be signed by the landowner. And it says that Commissioner Ramos hunted on his property and killed 20 birds and he is entitled to those birds. And he carries that with him. In the instance of turkey, for example, I don't — what we have talked about is not necessarily increasing the number of birds or using that certificate, but in that case, allowing a spring season earlier and later.

COMMISSIONER FITZSIMONS: You are actually decreasing the number of birds to be taken, probably in some areas, because you have agreed to a quota.

MR. BERGER: Right.

COMMISSIONER FITZSIMONS: And I think that is an important point.


COMMISSIONER FITZSIMONS: We really had to hammer through on the mule deer issue. Is that when you sign up for this, you agreed to a quota. If you don't sign up for this, there is no quota on those properties.

MR. BERGER: That is correct.

COMMISSIONER RAMOS: Yes. And that is where I was leading. Theoretically, if your habitat is such, and you are part of this program, you might be restricted severely in your quota, if you just don't have it. In other words, you have got to take the good with the bad, here.

MR. BERGER: Yes, I mean —

COMMISSIONER RAMOS: In other words, if you have a bad habitat, and your numbers are down —

MR. BERGER: We are trying to manage an overall landscape for the long term for the benefit of game species.

COMMISSIONER RAMOS: And just so it is —

COMMISSIONER FITZSIMONS: To put it bluntly, the people who want to abuse it are better off in our opening season, in our regular season, than they are in getting into this program.

MR. BERGER: Right.

COMMISSIONER RAMOS: And Ned, I didn't mean to imply that; I have no objection to extending the season. I just wanted to see from a law enforcement standpoint if that was going to be an issue or not. Because I mean, like we have with the deer, we have an extended season.


MR. BERGER: But you have the —

COMMISSIONER RAMOS: But what I am saying, who determined — the extended season would be determined by staff, or I as a landowners say, I want to hunt quail year-round, for example? It would seem to me that staff would say, but no longer than January 1, or whatever would be established.


COMMISSIONER RAMOS: I want to make that clear.

COMMISSIONER HOLMES: That is what we did with the deer, right.


COMMISSIONER HOLMES: And so you would presumably do the same thing.

MR. BERGER: We are going to do that together, yes. With the landowner.

COMMISSIONER FITZSIMONS: There is a lot of interest in this, and I know, well, this not the first time we are going to talk about it.

MR. BERGER: Right. We'll bring it back. If you like this concept, then we will bring you back specific proposals in January for your consideration.


MR. COOK: I'd like just to follow up a little bit on Mr. Parker's question, because I think it is a very valid question. It has come up routinely in our managed lands program. The size of property, do they have to have a deer fence and this kind of thing. What the Commission has done consistently through the years is, the size of the property is not a criteria; the largest or the smallest.

Having a deer fence is not a criteria. It is habitat that is the criteria. A lot of the small properties where we have done probably the most good on different species on habitat with small properties, and some of the co-ops, that have really done well, particularly as you go east in the state where small properties are combining together.

Back to the deer stamp issue, which certainly is a topic that I have an interest in, and that we have heard a little bit of discussion. You know, I think what has driven and I wanted to say this, I think what has driven our previous stamps have been hunters.

You know, and that combination of issues, of where we had the eastern turkey that we were trying an effort to restore. Well, hunters were the ones who supported that. Waterfowl; we wouldn't have the waterfowl stamp without the support of the hunters. So every stamp we have had has been with the support of hunters and fishermen, and has made some sense biologically in the process.

COMMISSIONER FITZSIMONS: Along that thought, though, Bob, I am going back to picking up one of Donato's favorite things. It may be worth looking at a stamp opportunity that is driven to youth and public hunting opportunities where we are not getting enough harvest. And maybe I am looking at this from the wrong side.

The other side of the coin is, if this is driven by the habitat issue, but in this case, it is not a paucity of animals, it is too many animals on that. That we need more people out there hunting, and more public and youth hunting opportunities.

MR. COOK: And that is where I have heard it — actually, that is where I have heard it from.

COMMISSIONER PARKER: And you know, what's the biggest issue that we have at this agency? What is the biggest issue we have?

MR. COOK: I'd have to give that one some thought.

COMMISSIONER PARKER: What is the biggest issue that we have?

COMMISSIONER FITZSIMONS: Today? Access to the outdoors, according to our plan. Increased access to the outdoors.



COMMISSIONER PARKER: No, it is not. Money. We are always strapped for money. And here would be an opportunity for us to increase some revenues and offer, like Joseph said, some expanded opportunities for non-landowners, urbanites, blah blah. Think about it.

COMMISSIONER HOLMES: The bottom line is, where that money would go. We have some unspent balances, you know, that have not been appropriated. It is really the 64 that is the real issue. If we could figure out some way to get more money into the parks system, that is to me a pretty high priority.

COMMISSIONER RAMOS: And, following up on Joe's comment, just like Joe, we execute a lot of quail leases on behalf of landowners in South Texas. And the cost of the quail lease grossly exceeds a hunting lease.

So you start looking at access for the youth, and it is even going to be harder because of the financial requirements for the youth of this state to access lands for quail. So this may be an opportunity to create a niche there or an incentive to landowners to permit the youth to kind of participate to some extent.

COMMISSIONER FITZSIMONS: You know, I think our public hunting program on dove has been really successful. Introduced, just anecdotally, it has introduced a lot of people to hunting that wouldn't have otherwise. It is certainly — financially, it is the easiest entry level for hunting. And I think it is worth looking at.

As Bob says, though, we need to see if the hunter community, the deer hunters would support a dedicated stamp for youth and public hunting opportunities. It would drive, finance the sort of program like we have in dove. But Ned is right on point. Getting the money and the appropriations to spend it are two different things. With that note — Mike, move on. Alligators.

MR. BERGER: Alligators. The next, the just-past Legislature, they eliminated the alligator hunting license. There is no more alligator hunting license.

So we have come up with some ideas to expand hunting opportunity and to simplify regulations. A general hunting license would still be required to hunt alligators. But we would, we are going to recommend shifting the recreational alligator hunting rules to the statewide, out of the alligator proclamation, which we will just retain being the commercial activities.

And we are in the process of determining the appropriate changes that would need to be made to govern this recreational take statewide. But lengthening the recreational season, allowing the take of alligators on private property, by means of firearms, and simplifying the process for obtaining the required cites tags are things that we are going to be looking for. But this would increase landowner and hunter flexibility and offer more opportunity for alligators than we have had in the past.

COMMISSIONER FITZSIMONS: There will still be a permit system, or not?

MR. BERGER: There will be permits, but it will be like the — again, like the Managed Land Deer Permit. The landowners will get the permits. The hunters contact the landowners on private property. And they will be allowed to take the alligator with landowner permission. This is not on public land anymore.

COMMISSIONER PARKER: Why wouldn't you do it on public lands?

MR. BERGER: Well, I mean, perhaps on our public lands, which we do now have drawn hunts. But the thought of people going up and down a public waterway or lake with a rifle in hand, shooting alligators, is a little scary. So it is on private property, with landowner permission.

COMMISSIONER FITZSIMONS: I might want to be there when they do it with a bow, though.

MR. BERGER: All right. If we could —

COMMISSIONER FITZSIMONS: We are back to bow, bow hunting alligator, though. I want to see that.

MR. BERGER: If I can ask Colonel Flores to come up and join me. We have had —

COMMISSIONER FITZSIMONS: Dan Friedkin will be our first tag holder.

MR. BERGER: We have had some discussion of late, regarding mourning dove shooting hours in Texas. And some public concerns, or some concerns have been expressed by the public. Perhaps low compliance with the daily bag limit, called double-dipping or double-tripping. That all day hunting may force doves out of the area earlier than would have occurred if hunted half days. Mourning dove populations have declined. And that some hunters support noon to sunset hours.

Just for your information, our history in Texas of shooting hours for mourning doves is half, prior to 1951, it was half day. I am sorry, excuse me. Half an hour before sunrise to sunset. So a full day. '51 to '76 was noon to sunset. And from '77 until now it is, again, a full day. A half hour before sunrise to sunset. The federal regulations do not offer restrictions or benefits. We do not get a bigger bag or a longer season if we hunt half days rather than whole days.

COMMISSIONER FITZSIMONS: You anticipated my first question. We get no credit if we herd them before. We get no credit for restrictions, right? We don't get half days back.

MR. BERGER: That is correct.


MR. FLORES: For the record, I am Peter Flores, Director of Law Enforcement. We hear this topic comes up very often throughout the state. And certainly from a law enforcement perspective, of course, obviously, it would be more enforceable for half a day. We encounter, of course, in any type of bag limit situation, people exceeding. But it seems that with dove, it seems to be a little easier with being all day long.

Certainly, we understand that hunter opportunity is very important to Texas. And certainly, we understand that biological information is the basis from which to make regulation. This is for the purposes of discussion, in terms of biology, it is my understanding from mourning dove populations is that they are decreasing pretty much nationwide, regardless whether you have all day hunting or half day hunting or whether they are hunted at all. So that being the case, from a biological perspective, why not make it easier to enforce?

Also in terms of hunter opportunity, it seems that especially from the northern part of the state, from which I just returned from a meeting last week with the field and stream group in Wichita, which this topic was discussed with one of our wardens about half day hunting, which is why we wanted to bring it up for discussion.

In terms of hunter opportunity, it may be argued that especially in the north, that the doves move with a lot of pressure. I don't know what the biological data is for that, but it is certainly a perception that certainly when you on your property decide to go half day but your neighbors around you don't, that the dove populations may move. And so certainly, the hunter opportunity in some portions of the state may be reduced by having constant pressure on the doves. And by having a half day would make it more enforceable, and may provide the opportunity for actually more opportunity in a large portion of the state.

So for the purposes of discussion, and pretty much, this is the general consensus amongst the wardens in the Law Enforcement Division, I appreciate the opportunity to be able to propose this before you, or just tell you what we are hearing out there. And we work very closely, of course, with our Wildlife Division partners and certainly, we want to make sure that Texans have the best opportunities possible for hunting.

COMMISSIONER FITZSIMONS: Is there a resource issue here, Mike?

MR. BERGER: I believe there is not. We don't have data to show that the population is affected and we did surveys over a number of years. And we can't tell, and neither can the federal government whether a half day or a whole day hunting has an impact.

COMMISSIONER FITZSIMONS: Do you have any idea from hunters' surveys what number of people hunt morning versus evening?

MR. BERGER: The last survey we did, I believe it was that we were about 60 percent of the hunters, or a few more, either hunted all day or mornings. So there would be more people who hunt mornings than do hunt afternoons right now.

COMMISSIONER FITZSIMONS: One of the arguments I have heard, it is funny. I heard both sides of this argument from the same outfitter. He was of two minds. He said that to be honest, the honest outfitters felt like they were being undercut by dishonest outfitters who were double-bagging. And he was only — of course, he wouldn't allow people to do it.

But that losing Sunday morning would be bad, because kids have got to travel back home to school Sunday afternoon. And I just thought that was a real world perspective, from a fellow who takes — this is a dove outfitter right outside of San Antonio. He takes thousands of people dove hunting.

MR. COOK: Gentlemen, this is an issue that through the years, I would say that it comes up about every five years. And this Commission basically has not had this discussion. For the ones that you hear, that say go half day, there are as many that are happy with what we have got, or more. Most of this request for half day hunting clearly, as far as I have heard, through the years, clearly comes from that North Central Texas area, Wichita Falls, Sweetwater, Abilene, up in that country.

No biological indication that all day hunting hurts. You know, any species that has a daily bag limit on it, you have some of these kinds of issues, whether it be quail or dove or fish or from an enforcement standpoint, therein lies the difficulty. But the Commission has previously taken the position of, you know, if there is not a biological problem, if this is offering additional opportunity, let's stay with it until we see a problem.

But we wanted to, out of consideration for the people and the fact that you folks have not had that discussion and consideration, we at least wanted to bounce it out to you. And I appreciate Pete and Mike bringing it forward to you with the viewpoints that are out there.

COMMISSIONER BIVINS: What prompted the change in '76? Does anyone have that archival data?


COMMISSIONER BIVINS: I thought maybe you might —

COMMISSIONER FITZSIMONS: We have walk-ins to archival data, Gene.

MR. COOK: I don't recall, Commissioners. I can tell you that in general, from the central and southern part of the state, I bet you if we go back and look, that it came from the central and southern part of the state, wanting all day hunting. And because it has just consistently been, even back when I was a very small child, back in '76, it is consistently — the issue has consistently risen from that North Central Texas, like I said, Wichita Falls, Henrietta area up in there.

COMMISSIONER FITZSIMONS: That is the year I was at Black Gap.

COMMISSIONER RAMOS: Joe, it seems to me that if it is not a resource issue, what is to keep any landowner from himself saying you know, you can't hunt in the morning.


COMMISSIONER RAMOS: Yes. Any outfitter. And if the landowners in Central Texas feel very strongly about it, there is nothing to keep them today from enforcing that. I mean, we don't need to be tweaking regulations.

COMMISSIONER FITZSIMONS: That is an excellent point. We have to have wildlife management co-ops. We have co-ops of people that can get together, and they can take an entire county, or half a county and say we are going to go half a day.

COMMISSIONER RAMOS: I hate to be changing stuff. I mean, some landowners may be convinced that the morning is the best and no afternoon hunting. That is part of the discretion that I think the landowner has as part of his management.

COMMISSIONER FITZSIMONS: That is a great reminder, Donato, that classic story of the fellow who went to the Commission and said, quail season runs too late. And at that time, Chairman Perry Bass said, well, then stop it. Stop hunting.

COMMISSIONER RAMOS: It is like the mule deer individuals that don't want to be part of the managed mule deer program. Don't do it.

COMMISSIONER FITZSIMONS: With that good comment, I think we need to move on. Our new Commissioner may be under the impression that the Regulations Committee is our only Committee.

COMMISSIONER BIVINS: Thank you very much.

COMMISSIONER FITZSIMONS: With that, I want to welcome our newest Commissioner, Mark Bivins. Mark.

COMMISSIONER BIVINS: Thank you. It is a pleasure to be here.

COMMISSIONER FITZSIMONS: It is great to have you here. And I think you are getting the taste of the incredible breadth of subject matter that we have to work with. And moving on from the — let's see.

No further questions on the statewide hunting and fishing proclamation? You will notice, Mark, we have now completed one agenda item. It is a normal day. No other questions or discussion on Item 1, I will authorize staff to publish this item in the Texas Register for the required public comment period.

Off like a herd of turtles here to Item 2. Proposed big game regulations, Clayton Wolf. We are finally going to talk about deer. We have gone an hour and 15 minutes without it.

MR. WOLF: Mr. Chairman, Commissioners, for the record, my name is Clayton Wolf. I am Big Game Program Director in the Wildlife Division. And this morning, I am going to present to you numerous proposed changes to our scientific breeder rules. In addition, I have got a few proposed changes dealing with our DMP and Triple T rules also, and permit denial provisions.

First upfront, I would like to visit just a little bit about stakeholder input on at least some aspects of these proposals. You may recall that some of you at previous meetings, that we referred to a group called the CWD Task Force.

It is an unofficial ad hoc advisory group that we use, private veterinarians and other agency vets, when we are proposing rules that deal with disease. Since we don't have staff veterinarians, we bounce ideas off these professionals to make sure we are taking the right approach from a disease management standpoint.

Some of these rules dealing with CWD testing requirements for scientific breeders originated from the CWD Task Force. And in fact, some of those rules were actually run past our previous White-tailed Deer Advisory Committee, which is now defunct. So although we don't have an advisory committee right now, there was a chance to comment on at least some aspects of these disease monitoring rules.

And finally, another group, an ad hoc group, we refer to as our breeder user group, is some scientific breeders. We use them much in the same way as we are contemplating rules and proposals. We bounce those ideas off them, and get some input to see how it is going to impact their operations.

A quick history on the growth and our scientific breeder permit program. The breeder permit was authorized by statute in 1985. You can see that up through the mid-90s, there was very little growth in the program, or slow growth. In the mid-90s, staff developed a database to deal with less than 200 breeders. And at that time, it was easy to deal with. You can see in recent years, we have had significant growth.

Right now, we have just over 700 individuals, just over 800 facilities, and they are holding almost 40,000 deer in captivity. Because of this expansive growth, we are looking at revising and are in the process of revising our database to help us deal with this large volume of people and deer, to make the process more efficient. Some of the rules that I will propose to you help us do that.

Additionally, we have some disease management concerns that we would like this new database to assist us in addressing. One thing we would like to do is enhance the capability to track individual animal movements. If you are familiar with the livestock market, and know that several months back, a cow with BSE was detected in Washington State, and one of the critical components is to trace back, or find out where that animal has been and the animals with which it commingled.

The same concept would apply for scientific breeder deer, not just for CWD, but other diseases, because we are talking about 40,000 deer in Texas being moved all over the place. Doing this by paperwork would be too burdensome in the unfortunate event that we had some kind of an outbreak. So we want to use this new database that we are developing to help us in the epidemiological investigations, if we ever did find a positive animal. And I will describe that a little bit more in detail in a few minutes.

Additionally, we would propose to develop a movement-qualified program component within our scientific breeder rules. When our CWD Task Force first started talking about requirements, we talked about a liberation-qualified component; in other words, you would be required to do this if you want to liberate deer.

We took that before our White-tailed Deer Advisory Committee many months back, and some of the Advisory Committee members actually suggested that if you are going to move deer period, that we would require that you be involved in one of these programs. And in fact, when we convened our breeder user group, that same concept came from our breeder user group. So there seems to be a unanimous opinion that if you are going to be in the business, and you are going to move animals, you need to be in some kind of a monitoring program.

Ideas that we have proposed, or regulations we would propose in this program, first and foremost, any facility with a Texas Animal Health Commission CWD-monitored herd status of a Level A or higher, would be movement qualified. This is a ready and official status that is recognized by the U.S. Department of Agriculture. We have over 400 breeders enrolled. Some of those have the status.

Briefly, what it means is when you sign up, you have an initial inventory. A year later, you have an inspection. And if you have tested all your eligible mortalities, and if you haven't introduced animals from a facility of a lesser status, you get Status A. And then each year, it goes up. We would accept this to be movement qualified.

But there are some problems with this, because this kind of program was developed more for tame type captive cervids. So another component that we are proposing that would be for interstate movement only, this wouldn't have any kind of implications to USDA, would be that once a facility —


MR. WOLF: Inter. I am sorry. Interstate. Only within the state.


MR. WOLF: Intrastate. Correction. This would have not any kind of a recognition from USDA. But it would have lesser standards. And what we would propose is that a facility have five, that has five eligible mortalities, that have not detected CWD test results must be produced for at least 20 percent of these mortalities. In other words, once you have five deer that are older than 16 months of age die, if you have not tested one of those animals, you are shut down.

Now, initially this might be appear to be a drastic reduction in testing. But what we would propose is that a conscientious breeder, someone that is not going to want to fall behind, so they are not going to wait for the first four animals to die and not test them in hopes of testing the last one, because they might miss that. And so what we feel will happen is when we do this, folks are going to actually try to develop or build up credit early.

And so, they are not going to wait and test the minimum 20 percent. They are going to want to get in early, and test as many animals upfront. Because if they have some kind of a significant mortality event, they don't want to lose their movement-qualified status.

We also propose that these requirements would become effective April 1, of 2007, and that they be gauged upon test results starting April 1 of 2006 for the next 12 months. Until that time, we would propose that our current liberation, rules for liberation be affected.

In essence, what we are talking about, is if this Commission chose to adopt this program, or some variation thereof, we would notify folks after the January adoption. And they would know that from April 1 of 2006, for the next 12 months, any mortalities that occur there are those that — with which they would be judged.

And also what will happen is that means folks will immediately start testing. So although the rules wouldn't become effective until 2007, we would suspect

that April 1, 2006, once they are notified, that we would start seeing a lot of testing as a result of this program. We would also propose the facility would lose movement-qualified status.

For a minimum of one year the owner of the facility knowingly accepted deer from a non-qualified facility. So proposals relative to process administration — we are talking about processing documents for the movement of deer. We would propose that the movement of deer be reported — 48 hours of delivery. And that is for all deer. Right now scientific breeders notify us ahead of time, but we don't know — we only know within a 30-day window when those animals are actually moved. And animals that are liberated, they only have to report annually.

If we had the unfortunate event of some kind of a disease detection within this community, we wouldn't know where animals have went. We would have to go to the paper files to determine all this. So we want to basically develop some real time reporting in this. So as these animals are delivered, they would report within 48 hours, and then we would record that movement in our database. And so if something happened, we would be no more than 48 hours behind on the movement of all animals, for all captive deer in Texas.

To achieve this, we are looking at some permit simplification. We would propose to abolish purchase permits, which cost $30 apiece, transport permits, which cost $30 apiece, and something we developed as a temporary invoice that we give out for free. To replace that, we would propose the implementation of transfer permits, to replace all of these, and they would be free.

Now, how would we pay for this? The current fee for scientific breeder permits is $180, and that is an annual fee per facility. Some breeders can have several facilities, and they have to have a permit for each separate facility. We would propose to increase the amount by $280.


MR. WOLF: To $280, sorry. By a hundred dollars. The approach we have taken is a minimum of a no net loss approach. We looked at our records for 12 months and we see that the average breeder spends about $75 on transport or purchase permits.

In addition, we recognize that if our staff is going to have to log and track animals, put that in the database, there will be some additional effort. To be honest, we don't know how much effort, because we are hoping for some efficiency in our new database. But basically, we rounded it to $100 and added $100, using this no net loss approach. I want to make it clear that this doesn't necessarily mean that the program pays for itself, but at least we are not losing any revenue in the process.

And of course, as I stated, we would propose that the transfer permit be free, because the folks that are developing our new database, we are in the process of developing some web-based applications. And what we hope is if we can make these web-based applications user-friendly, we can actually get permittees to do their own data entry online. And that will save us some time in the future.

As far as permit activation, we require that if someone wants to activate, and this is notifying the Department that you anticipate moving deer, that they give us the source and destination, TX number and facility names. Each individual out there that has breeder permits, has a TX number. It is unique. Facility names are somewhat unique. We would also ask that in the case of liberations that we get ranch owner, ranch name and location, and for anybody holding deer for temporary purposes, we also get contact information.

The bottom line is, we need some specific information. Where the animal came from and where it went to, in case we have to do some traceback, or if law enforcement wants to do some investigations. We would also ask for phone number for the person moving deer, in case we need to contact them if something doesn't look right. And we would ask for them to give us an activation date.

We propose to eliminate pre-movement notification requirements to list individual deer in a shipment by unique number. Right now, if a breeder wants to move deer, they have to fax us a purchase permit, and it has to list all the animals, and their unique numbers. This is problematic for breeders and also problematic for the Department because when they get to the pens to capture deer, they don't always get to capture the deer that they hoped they would capture, or they might capture more.

The law requires in advance that they have to go back to a fax machine and send us an amendment. And if something goes wrong, they have to go back again. So we would propose that some of those other components, they could give to us, but not — and notify us in advance of the unique numbers of the animals. What we would propose is that once the deer are loaded up, that the transfer permit be filled out, and that all the animals that are on the load are on the transfer permit.

So if they are stopped by a game warden, it has to match up, if the game warden chooses to do an inspection. And like I said, we would require the act — we propose to require the activation of the permit prior to leaving the facility. Now, what we're talking about is a little bit different, and actually a little bit simpler and easier for scientific breeders. We propose that the permits could be activated by fax, phone, or web-based.

COMMISSIONER FITZSIMONS: Before or after the movement?

MR. WOLF: This is before the movement.

COMMISSIONER FITZSIMONS: It is all before movement?

MR. WOLF: All before movement. Yes, sir.

COMMISSIONER RAMOS: You already captured them.

MR. WOLF: Well, that is the difference. Before, in our current rules, they have to fax us something of what they planned to capture. Or if they are loading them up, go to a fax machine on site, which can be troublesome.

What we would propose is that they call us. They could call us from the site, with a simple cell phone call, and tell us who you are, where are you going. When do you — are you moving now. And so the difference is right now, they could actually load their deer up, they could fill out their permit, then they could call us before they hit a public road, and let us know that they are moving. Yes, sir.

COMMISSIONER MONTGOMERY: I want to be sure I understood, the 48-hour-reporting part is an advance-reporting requirement?

MR. WOLF: No, sir. The one that I presented to you is after they are moved in. And I will talk about the advanced part here in a minute or two.

COMMISSIONER MONTGOMERY: It seems to me that in advance is the preventative one.

MR. WOLF: That is correct. And that is going to — actually, I am going to call Chief Sinclair up for some clarification from a law enforcement perspective.

COMMISSIONER FITZSIMONS: And that doesn't in any way undermine the integrity of the traceback?

MR. WOLF: No, sir.


MR. WOLF: The most important part from the disease management traceback is reporting after the animal has moved.


COMMISSIONER FRIEDKIN: Clay, is this consistent with some other states' practices on tracking and control?

MR. WOLF: Actually, I am not very familiar with other states. But what is happening nationwide is the USDA is going to a national animal ID system for livestock. Texas and Oklahoma are part of a pilot project right now. Very similar except, it is my understanding at least in the pilot program and draft rules, the reporting requirement is 24 hours.

But a lot of things are the same. You have a facility number, and each animal has a unique ID before it leaves. And then a person is required to report that. And I believe the current protocol is 24 hours. But it is very similar to the national standards that are being proposed.

COMMISSIONER MONTGOMERY: Getting all of the interrelationships with different reporting requirements clear, and the sequence, but don't we want the reporting part to be in advance, so that we have got a preventative mechanism also?

MR. WOLF: Yes, sir. In fact, that is my last bullet. And then I am going to ask Chief David Sinclair to come up here and help me on this one. Currently, like I said, they must fax us something in advance. And then that permit is valid for 30 days. And they can move anytime in that 30 days.

And of course what we said upfront is, we don't necessarily need all the unique IDs faxed to us in advance. But what our agency was looking at was a smaller window then to give game wardens a better chance of inspecting the shipment, because the proof is now on the dashboard, if you will. It's the manifest or it's the permit if you want to prove that it matches up.

When we met with our breeder user group about narrowing this window down, now much time frame, or how long is the permit valid, and how soon ahead should you call, the closest that we could get our breeder user group to agree to with any comfort level was ten days. In essence, they could be at the facility. Load them up, and call in. Or they could fax in ahead of time, and designate, I want Friday to be my first day. And then they would have a ten-day window.

And at that point, I am going to turn it over to Chief Sinclair, because it is principally a law enforcement issue, as far as enforcing these rules. And I think he could do a better job of explaining that.


MR. WOLF: Yes, sir.

COMMISSIONER PARKER: What reason did they state to you that they needed ten days?

MR. WOLF: Ten days? Ultimately, some breeders do not move all their deer in one shipment. They can notify us. They can negotiate a deal with the receiver. But they don't necessarily catch all the deer the first time. And the reason that was provided to us, was that it might take me two weekends. In other words, I move deer on weekends. I negotiated a deal for ten deer, but I only caught five. I move those.

They don't mind reporting that they moved those five. But what they said is, I would like the opportunity to move the other five animals the next weekend. And of course, a ten-day time period would encompass that.

Is that correct, David, the way you understand it?

COMMISSIONER PARKER: So they don't have to be consecutive days. Those ten days do not have to be consecutive.

MR. WOLF: Any time. That is correct. They could make a shipment.

COMMISSIONER PARKER: Two days, two Saturday, Sunday; Saturday, Sunday.

MR. WOLF: No. They would be ten consecutive days. I am sorry.

COMMISSIONER PARKER: Oh, ten consecutive days.

MR. WOLF: Yes, sir. After ten days, if that concept was adopted —

COMMISSIONER PARKER: That gives them two weekends.

MR. WOLF: That is correct. Well, I think Chief Sinclair can expand on some of that dialogue we've had with breeders.

MR. SINCLAIR: Mr. Chairman, Members, I'm Major David Sinclair, Chief of Wildlife Enforcement. With regard to your question, Commissioner Parker, one of the breeders indicated that generally, with moving does, he will do that all at once. With buck deer, to an individual breeder, he likes to move on Saturdays. And it might take two consecutive Saturdays to get that. So that was one of the justifications for the ten-day period.

For the most part, the proposals that Clayton has mentioned have been approved by staff, and they have been approved. Everybody is on board with the breeder user group. However, after a couple of conference calls we had, we were kind of stymied on this ten-day period. As Clayton indicated earlier, the purchase permit is valid for 30 days.

The current one, which is, I think, every one that has been in these discussions agrees that that 30-day period of time is too long. And especially from a law enforcement perspective, it is way too long. A game warden routinely gets a call from communications that there has been a permit activated. And the game warden knows then that that person has 30 days to move those deer.

And it is hard to get real motivated, knowing that those deer will be moved sometime during the next 30 days. And that permit holder can also get an extended time on that. So, it could reach out to much longer than the 30 days.

I would like to go through the suggestions from the breeder user group. They are asking for one activation. And this would be to move an unlimited number of deer under the one activation. And it would be for a ten-day period of validity. Now, that is actually 20 days less than the existing purchase permit, but it is still a large period of time.

I have also been told, and we discuss this all the time about trying to make regulations simple. And the proposal as agreed to by the breeder user group is asking to do more things in some ways, but less than others. But the bottom line is, it is simple. An example of asking for more things would be the report 48 hours after each shipment. Currently, that is not required. But because of the disease issues, everyone thinks that is very important.

An example of less than others would be not having to complete a fax and send that to communications. A simple phone call identifying themselves and where they are taking these deer to would be all that is required. A further simplification is proposed and agreed upon. No unique numbers at the time of activation.

A completed transfer of permit or manifest would be possessed while transporting those deer. That manifest would include all the unique numbers of the deer that they are holding. If a game warden had reason to believe there was a violation, they could stop the vehicle, and that manifest should be available, listing all the deer that they are holding.

COMMISSIONER PARKER: With numbers and everything?

MR. SINCLAIR: With numbers and everything, and the destination.

COMMISSIONER PARKER: The deer has a tag on it, 1,2,3,4 on that manifest?

MR. SINCLAIR: Well, the number on the manifest would be a unique number, which is tattooed in the deer's ear. It matches the number that is tattooed.

COMMISSIONER PARKER: It is tough to check out though.

MR. SINCLAIR: It is very tough.

COMMISSIONER PARKER: I mean, who wants to get down there and —

MR. SINCLAIR: It's dangerous for the wardens to do that checking, and it is also — you lose deer. That is the last thing we want to do is to kill anyone's deer trying to check them.

Something else that is simplified, and Clayton has already alluded to this, and that is the $30 purchase permit and transport permit. Those would go away, and we would offer a free transfer permit now.

With regard to the law enforcement proposals, Law Enforcement is suggesting a smaller amount of time. One activation for each time that deer are transported. And that would have to be in a — you would have to give us a 48-hour time period. Now that is reducing that from 30 days down to two days.

And that smaller window, with regard to law enforcement, it is a deterrent. It is going to cause some of those bad actors to look over their shoulder a little bit closer. So that, and we feel like that that is a very reasonable amount of time.

As Clayton indicated earlier, the breeder may designate an activation date in advance. If you didn't want to move deer until next Sunday, well, then, you could call in, and activate a permit, and you would have 48 hours after activation to move those deer. I am getting a little bit ahead of myself there. Moving the deer must occur within 48 hours of the activation date.

So again, someone could call in in advance and move those deer after that activation period. LE doesn't believe that having to make one call or multiple calls is going to impact the industry negatively. As a matter of fact, a lot of those that are on the breeder user group indicate that they move deer. They make one call, or send in one fax currently, and they move all of those deer at one time. And so there is — and I will show you a slide a little bit later that will kind of back that up.

Before I talk about this slide, I might mention that currently, with the Triple-T and the trap transport and transplant, and the trap, transport and process, anyone that moves those deer, they have to call in between 12 and 48 hours. So that regulation is already out there, and it is very similar to what we are asking. And actually, that one is a little more restrictive than what Law Enforcement is suggesting.

This particular slide is purchased permits are activated in September and October. There were 560 permits activated, moving approximately 2,500 deer during those two months. The numbers across the bottom are the group size. And as you can see, close to 400 of these purchase permits — there are only five deer, an average of five deer that were being moved. So they are moving these deer in one trip.

So our proposal would suggest that, you know, they are only going to have to make one call. Very simple. And they report 48 hours after that particular call. I believe that is my last slide. And I would be glad to answer any questions about any of this, or we can wait until at the end, and I'll be glad to answer those then.

COMMISSIONER FITZSIMONS: Do you have anything else, Clayton?

MR. WOLF: Yes, sir I do.


MR. WOLF: Unless you object, I will go ahead and proceed. And then we can get back, or we can answer these questions on this purchase permit now.

COMMISSIONER FITZSIMONS: Well, David could you stay up? I am sure there will be some questions on the enforcement issue.

MR. WOLF: We have some miscellaneous items also that I would like to cover in our breeder rules package. We propose to redefine unique number to only allow the Department to assign numbers. Right now, there are two numbering conventions. One where we issue the numbers, and another that gives guidelines for numbering. However, even though it is explicit, our breeders — some breeders are having trouble understanding that.

And it is causing some problems with uniqueness, where animals are not truly uniquely marked, or they are not matching our — the numbering conventions we asked for. And so, we are proposing to have only Department assigned unique numbers so that we have control over that, and that each animal is in fact, uniquely identified.

COMMISSIONER PARKER: Excuse me. What do you do if you define the numbers that is not —

MR. WOLF: Not unique? Right now, we actually have a big process going right now. My staff is trying to identify all the different scenarios and solutions. Some of them are rather simple. If some of them put their own number in one ear, and we could have them put their TX number in the other ear and that solves, that makes the animal unique, as long as the one number was the same.

In some cases, in many cases, they are illegible. And we are going to have to somehow from a disease standpoint tie where they got those deer from, but potentially have them re-mark them if they cannot tell us what they are. But there are a lot of problems out there right now, with these tattoos and the fact that folks misinterpreted that they could use their own numbers. They used many different variations, some of them not unique. And of course, from a disease-tracking standpoint, that is problematic. We want every animal to be unique. So to be honest with you, we have got — we have solutions for the simple ones. We don't have solutions.

But what we propose to do is for every solution that we have for a breeder, we are going to specifically send them a letter authorizing them to do that. We are not going to allow anybody to just re-tattoo their animals on their own. Each one is going to have to be allowed specifically by us, copy to Law Enforcement and make sure that if there is a re-tattooing, that they can only do that under authorization from the Department.

MR. SINCLAIR: One of the problems that we have run into, that we are finding people using the unique number that they come up with. And they should be displaying the TX number in one ear, and their own unique number in the other, but they are not doing that. They are just putting the unique number in one ear. And whenever they activate a purchase permit, well, it in some cases matches an alphanumeric number that the Department has assigned to someone else. So it is —

COMMISSIONER PARKER: What do you do with that person?

MR. SINCLAIR: Well, we are still trying to work through that. But we are — they are going to have to go back and put a TX number and make that deer really unique.

COMMISSIONER HOLMES: Can you put a — designate where that number goes on the deer?

MR. SINCLAIR: Right now, we have designated that it has to go in the ear. We could, I mean, nothing restricts us to that. We have the authority to assign any other kind of unique numbering system.

COMMISSIONER PARKER: Are you happy with that, David?

MR. SINCLAIR: Well, at the present time, it is the best there is. We are certainly aware of new technology. There is pit tags. There is the radio frequency ID tag that goes in the ear, and we hope at some point in time, we will be able to go to that. But we are kind of waiting on the U.S. officials.


MR. WOLF: The USDA, yes.

MR. SINCLAIR: Yes. To establish their protocol, and then we will try to follow it. There is no needing for us to have to reinvent the wheel here, so we are going to wait on them.

COMMISSIONER RAMOS: So the current regulation requires that you tattoo the animal in one or — the left ear, let's say, or the right ear?

MR. SINCLAIR: It doesn't matter. No requirement. It could be in either ear.

COMMISSIONER RAMOS: But it has to be a tattoo.

MR. WOLF: That is correct. If it is Department number, it is one ear, and if it is their number, it should be two ears with a different number in each.

COMMISSIONER RAMOS: If you take, for example, comparing this to the cattle business for brucellosis purposes, you get a metal tag that is put in the ear and a tattoo, so that you have a double numbering system. So if the tattoo is not legible, you have this corporally permanent tag that is issued by the government, basically.

MR. WOLF: Yes, sir. It is seems obvious in our discussions that ultimately we will end up going to RFIDs. We are just a little bit concerned about getting there prematurely. And then to be honest with you, we would like for the Feds to work some of the bugs out before we go there. Yes, sir.

COMMISSIONER MONTGOMERY: Just so that I understand the broad — it sounds like the changes you are describing still leave flexibility for the breeders but also allow adequate monitoring.

MR. WOLF: Overall, or relative?.

COMMISSIONER MONTGOMERY: Overall. And second question is, in your judgment is that true?

MR. WOLF: No. As far as unique numbers, we would take away their flexibility to use their own numbers, simply because the concept of uniqueness, you know, if we have control, then we know they are unique.

COMMISSIONER MONTGOMERY: I really meant flexibility in the whole sense, but picking time to move those sorts of things. My question is, does this overall package give us adequate ability to respond promptly in the event that CWD is detected somewhere, and therefore we'll know it quickly, but also take preventative measures to stop the spread quickly. Do we have those built in now under the changes you are proposing?

MR. WOLF: Under the changes we are proposing, yes. By the reporting requirements. Because of some of the uniqueness, there is going to be some complications. Whether they are with the proposed rules, or our old rules, if we had a positive animal come up right now and we looked at it, and the tattoo is illegible, we have got a problem, regardless. Regardless of whether we do something.

What we may have to do in some of those scenarios is assign a new tattoo number that is legible. But the fact of the matter is, we still have to determine where that animal came from. We may have to tie it to simply if it came from a facility. So unfortunately what happens, it implicates, it potentially implicates more parties when you are not sure about the uniqueness, and you can only define it to a lot of animals. That is a problem we stand at right now. I mean, it currently is there right now.

Even if we adopt these rules, so we are look — as far as what is behind us. So we are looking to fix these problems from here on forward. But if we have something right now with one of those animals that was illegibly marked, it is going to implicate many more folks in the breeder industry potentially.

COMMISSIONER MONTGOMERY: Well, is it our goal to design a system which allows rapid preventative measures to be taken?

MR. WOLF: Yes.


MR. WOLF: Yes. And those are — and the two primary components are report when you move an animal and have a system of unique ID that is truly unique and accurate and legible. And we don't have those in our current rules. Tattoo is not perfect. RFID is better, and I suspect that hopefully within a year or two, we will be back here with rules for RFID to fix that, you know, the problems associated with tattoos.

COMMISSIONER MONTGOMERY: Should we not build those mechanisms in now. That is where I was going with this line of questioning. Should we not build them, so that you have got the latitude to go in and implement them, when you see the right means to be there, if our goal is to have a rapid prevention system. Or is it just too hard to specify now how you want to handle that?

MR. WOLF: Well, to be honest with you, I suppose we could, if it was your wish, we could adopt a rule that allowed us that latitude when we chose. As long as we weren't too ambiguous in the wording so that people could pick and choose. Because what we found is when you provide several options, and people are doing things different that causes confusion.

But if we could write the rule, and it was you all's wish to where when we develop something or if we decide on something that was much better, that we could do that immediately without additional Commission action. We would be glad to attempt to do that, if we could construct a rule that way.

COMMISSIONER MONTGOMERY: It seems to me that while we are addressing it, we would be better off to anticipate a potential for the problem to occur, and have the mechanism in place to deal with it, if and when it does, rather than having to react once it happens. Because then you have got that delay in time frame of putting it in place. I am not the pro here, but as a part of our objective, it seems like that is a good objective to have.

COMMISSIONER FITZSIMONS: I think Commissioner Montgomery makes an important point. When you say that if we get a positive, we still have a problem, even under your proposed regs, then we need to look seriously at how we help you be prepared for that positive. Because, even though we have been very fortunate in our testing so far, of primarily overwhelmingly animals from the wild, if we don't have CWD someday in Texas, then that only proves that God truly is a Texan. I mean, I don't know how it won't be here someday, in light of what we know from other states.

So it seems to me that the reasonable and prudent approach for this Commission is to be prepared, especially in light of the numbers you showed us. Numbers of animals and the trouble you have in monitoring movement and the integrity of traceback. So I would echo Commissioner Montgomery. I think the goal needs to be to be prepared for the positive.

COMMISSIONER MONTGOMERY: I think we should think it through now before we have the problem. I hope we don't have the problem. But know that we are ready if we have the problem.

MR. WOLF: Well, of course, we have got — I mean —

COMMISSIONER MONTGOMERY: It is going to be a bombshell if it happens.

MR. WOLF: Obviously, it is your discretion. But you know, this is permission to publish, so we could publish more extensive rules with your latitude to not adopt or whatever, as long as we — as long as what we publish is extensive enough to cover all the options, then the Commission would —

COMMISSIONER PARKER: Is there any reason why you would want to hold back and wait on USDA?

MR. WOLF: Well, when we visited about RFIDs, there was just a lot of lack of knowledge in the technology. Some of our breeder user groups felt like that the federal model that's there right now, the proposed model, would change. In fact, that I don't know what they were anticipating. But the other thing is, those RFID numbers are very long. They are 13, 14, 15 digits. And if we have a mechanism where we report something down there, right now, they report like four unique IDs. It is alphanumeric.

If it is all numeric, and it is 16 digits, there is obviously some concern about folks making mistakes on their paperwork by having to write down 16 numbers for each deer in the shipment, as opposed to some kind of — and to be honest with you, there are many kinds of readers out there. We are trying to purchase some right now to test at the Kerr area. And we just tagged some deer with RFIDs. But that technology is growing rapidly. But that was one of the big problems, was recording those long numbers manually, the way we do in the fear that that was going to cause a lot of problems.

COMMISSIONER FITZSIMONS: And in light of — go ahead. Go ahead please, Ned.

COMMISSIONER HOLMES: Well, just to kind of amplify the point, I accept, Phil, the notion that we really need to move quickly and give staff a lot of latitude. But I wonder if we provide so much latitude that a solution is implemented, that it might not then be enforceable.

COMMISSIONER MONTGOMERY: Well, actually, I wasn't arguing for latitude. I was arguing for specificity. But I was arguing to put in place a program that allows us a clear path to preventative mechanisms, if and when there is a detection. I am a little concerned about going out with too broad a menu.


COMMISSIONER FITZSIMONS: What about this idea.

COMMISSIONER MONTGOMERY: I am not advocating that at all. I would, in fact, push staff to say, let's be very specific, and come up with the best plan you can today. Propose that, and put it in place. Also, quickly, with regard to the numbers, I count 16 digits. I can't count past a trillion. I don't think we are in danger of having a trillion deer in Texas anytime soon. I wonder if we couldn't shorten that so it solves that problem.

MR. WOLF: Well, if we go to — it is our understanding that ultimately, the Feds are going to require that all captive cervids be a part of the National Animal ID System. So our anticipation is, we want to adopt rules and methods that will then mesh with what the federal requirements will be, five or six or eight years down the road, and that is a uniform standard across the U.S. It is a uniform RFID tag. And the numbering convention means something, as far as states, properties, premise ID, et cetera.

COMMISSIONER FITZSIMONS: Well, what about this idea. You mentioned at the beginning that all the advisory committees were Sunsetted. Just gotten around to naming a few of them so far. The coastal one was mentioned earlier. I think I have gotten in all the recommendations from various groups on the white-tailed deer.

Why don't we — why don't you go to the new committee with this, and come back in January, instead of skipping a whole another year of the regulatory process, in coming back a whole year later. Because frankly, I think we are on borrowed time right now.

COMMISSIONER PARKER: I don't think we should wait on the USDA.

COMMISSIONER FITZSIMONS: We have been very fortunate. Yes.


MR. WOLF: Are you suggesting pull back on the unique number, but the rest of the rules, we'll go forward with?

COMMISSIONER FITZSIMONS: Well, none of this recommendation, this proposal has gone through the White-tailed Deer Advisory Committee.

MR. WOLF: None of it has. My anticipation was that if the committee was named before January, that they would actually get a chance to review this before our January Commission meeting. And the other issue is, is the reporting period for our breeders ends March 31, and the new year begins.


MR. WOLF: And what we were anticipating was, adopting rules for the new period, so that we didn't fall behind, issue permits, and then adopt and change rules. But that is still —

COMMISSIONER FITZSIMONS: So you could still go to the Committee and come back with their recommendations?

MR. WOLF: Yes.

COMMISSIONER FITZSIMONS: As to specificity and how to narrow it.

COMMISSIONER MONTGOMERY: Could I take a shot at that? I think what — correct me if I am wrong, but I think what we are saying is, the Commission would like to see the methodology in place that allows for prompt prevention in the event there is a detection. We clearly want to work with the White-tail Advisory Committee. They have been instrumental in getting us to this point, and we are not about to go off and launch off as Ned was saying, with a bunch of regulations without consulting.

But we do, as a matter of policy, in January, want you to come back with something specific that has been vetted through them that accomplishes both the objectives of monitoring as well as prevention in that we have detection. But specific, so it is not ambiguous. But it has been vetted.

COMMISSIONER FITZSIMONS: Hopefully, it changes your answer to the previous question of if we have detection today, even under these proposals, I still have a problem. I mean, I hope —

COMMISSIONER HOLMES: Which is the whole purpose of it.

COMMISSIONER FITZSIMONS: Yes. Exactly, Ned. You hit the nail on the head.

MR. COOK: Is that doable in the time frame, Clayton, that we are talking about?

MR. WOLF: Well, I would like to make sure that I understand this clearly. We would go back and I guess, work with Director Cook on the rules, go ahead and publish some rules that would help achieve these objectives, run them past our White-tailed Deer Advisory Committee in January, prior to us coming back and meeting. And then — and I guess the hope is that if we've done a good job in constructing those rules that are published, we can adopt from that, or amend from that and go forward with the January adoption.

COMMISSIONER FITZSIMONS: Right. Help me, Ann. We can amend and adopt from what was published, without a re-publish, based on what the Advisory Committee tells us? No? Negative? We have got to republish.

MS. BRIGHT: I'm Ann Bright. General Counsel for the record. It is going to depend on what the changes are. If we publish a rule, and I think this is probably what Clayton was referring to a while ago. It has got a lot of options, or is fairly broad, it is a little bit easier to restrict it when you adopt it, than to expand it. So we don't want it to, for example, apply to more people than the original proposal when you go to adopt it.

COMMISSIONER FITZSIMONS: So your original proposal that would be published, that we would authorize publication today, would have to be broad in order to then restrict.

MS. BRIGHT: Yes, sir.

COMMISSIONER FITZSIMONS: Based on recommendations.

MS. BRIGHT: Yes, sir. And again, we have to look at the specific changes to see what the implication would be.

COMMISSIONER FITZSIMONS: Well, I think that is what we want to do, okay.

COMMISSIONER MONTGOMERY: We ought to make it clear to the industry group that we are not intending to just — we want to end up with a specific plan, even though we have got to do it to fit the sequence here.


MR. WOLF: Thanks, Ann. I would like to say that I am done, but I am not done.

COMMISSIONER FITZSIMONS: Have we helped you at all, Clay?

MR. WOLF: No, you have helped me. But I am not done.


COMMISSIONER MONTGOMERY: I have just one more question.

MR. WOLF: And I apologize.

COMMISSIONER MONTGOMERY: I have one more specific question. Movement-restricted rule changes today then move all the facilities into the movement-restricted status, or is there still some — you said about 400 are out.

MR. WOLF: That is with our Texas Animal Health Commission. And when this, if adopted, this movement-qualified program, as of April 1, 2007, if you didn't meet one of those two criteria, you could not move animals period.

COMMISSIONER MONTGOMERY: Effectively, everybody moves into the program, so we are monitoring —

MR. WOLF: That is correct.

COMMISSIONER FITZSIMONS: All right. Consistent with one hour per Committee item, so far.

COMMISSIONER PARKER: That is fine. We are having a good time. That is what is important.

MR. WOLF: We would also propose to change the permit period to begin July 1. Right now, our reporting period and permit period are consistent with each other. And it causes problems. What we would propose is that our reporting period end March 31. That way, we could get all our data in. We could send out renewals. People would have time to process those renewals, get them back in, and then we could issue a permit that would begin July 1.

So in essence, we are asking for some staggering in our reporting period and permit period, which we do not have right now. We propose to require that certified wildlife biologists physically inspect facilities and certify those deer are within the facility prior to issuance of permit. What —

The statutes require that there be an endorsement by a certified wildlife biologist, and what we have found in the past these biologists are endorsing plans, endorsing facilities. And then we find out the facilities are not constructed yet. And of course, I think it is at least our understanding that before we issue a permit, that all those things that the biologist endorses are actually there. And our breeder user group, as far as giving impact, did not have a problem with this. We propose to allow only 30 days for soft releases. There is currently a rule that allows someone to keep deer in detention, to acclimate them to the site, find water and food resources. We, by policy, only allow 30 days, because really, that is all that is needed to achieve those objectives. But the rule actually allows for a six-month period. So we would propose to change that to 30 days, since the clear intent is to acclimate the animals, and that can be done in 30 days.

My last few items deal with permit denial provisions. Previously I was before this Commission talking about permit denial provisions for management permits. And we got some directives from this Commission to do some things to make our regulations more consistent, and also address some possible loopholes. What we found in the investigation is that in our breeder permits, and our deer management permits and Triple-T permits, we had a wide variety of language and provisions. Some of the language said that we shall prohibit somebody from having a permit if they did something wrong. In some cases, when it referred to previous convictions, there was no time frame. It says that if they have a conviction. It doesn't say how far you go back in time. It was open-ended. In some cases, it is three years. So there is a lot of variability to be brief.

What we are proposing is to be consistent among these free permits with our language and our denial provisions. Up in front of you, the language that we would propose, it says that the Department may refuse permit issuance or renewal to any person who within five years, and we are stipulating a consistent time frame, of applying for a permit, has been finally convicted or received a deferred adjudication for — and I will come back in a minute.

But these three classes of violations are going to be consistent. This slide is going to come up several times, and I am not going to belabor them each time. But basically, three classes of violation. One is a violation of Parks and Wildlife Code, Chapter 43, either subchapter C, E, L or R. C, all of these are basically subchapters that allow people to hold captive wildlife.

And so obviously, if you have a violation somewhere else for holding captive wildlife, we need to scrutinize that relative to giving you a permit, a breeder permit for example. We also included any violation of Parks and Wildlife Code that is of a more serious nature, that is a Class B misdemeanor, Class A misdemeanor or a felony. And then finally, a violation of Parks and Wildlife Code Section 63.002 which prohibits someone from holding a live game animal without a permit.

Yes, sir.

COMMISSIONER MONTGOMERY: As I understand, this rule would potentially put people out of business.

MR. WOLF: Yes.

COMMISSIONER MONTGOMERY: Is there an appeal process for all of those violations, the way there would be if it is a criminal action?

MR. WOLF: Right now, it is my understanding that we do have an appeals process if we refuse a Triple-T permit for some biological reasons. However, our rules do not have an appeals process for convictions. Now one thing that I need to reiterate and talk about is this — I guess, this discretion.

If we do, and we do have folks that we issue permits to that have convictions. Say, they may have an undersize fish, or they went over a dove in the bag limit. The intent of this is not to go after folks that have those types of violations. And so this rule doesn't compel us to take any permits away, but it does give us discretion to look at each case —

COMMISSIONER MONTGOMERY: I am not the lawyer here, but it seems to me a fundamental matter of fairness. If we are going to do it, we ought to — have mechanisms, there ought to be some appeal process, whether it is civil court or internal —

MR. WOLF: Do you want to answer that, Ann?

COMMISSIONER MONTGOMERY: So that if there is not a review, it is not just the action of one person.

MS. BRIGHT: I think you make a very good point. And one of the things we probably ought to do is go back and verify that the deer management appeal process and all these other appeal processes, I think that we have brought before you in the past would cover this.


MS. BRIGHT: And I should use the word "appeal process" sort of loosely. It is not technically full-blown due process. Because these permits are considered privileges. And so they are not really entitled to due process. But at the same time, we do want to give them sort of a little due process, I guess. You know, enough to make sure that we haven't made a mistake along the way.

COMMISSIONER MONTGOMERY: Everybody is due a day in court, that is all I am trying to be sure of.

MS. BRIGHT: And usually, it is just — for example, I know we had one, and I can't remember. It may have been an MLDP. But anyway, we had one of a year or so ago, where they just bring it in, and really, they can come with their lawyer if they want. And usually, it is the biologists who are looking at it, and sort of making a final decision. And then at that point, obviously, they can —

COMMISSIONER FITZSIMONS: I think a biologist would be more convincing than a lawyer.

MS. BRIGHT: Yes. They can go into —


MS. BRIGHT: They can, and they have gone into district court to challenge it, if they want to.

COMMISSIONER MONTGOMERY: Well, I just want to — to the extent that the violation is with respect to disease or — we ought to have the right to suspend their operations until that appeal is over, so we don't have somebody out spreading disease around.

MS. BRIGHT: Yes, Commissioner. Actually, how we have structured this when we have done this in the past has always been, we make the decision to deny it. And then they get the chance to come in and question it. But I think our goal would be to notify them enough in advance that there is an opportunity for them to do that.

COMMISSIONER MONTGOMERY: But we have incorporated to correct an obvious bad action, or a disease.

MS. BRIGHT: Absolutely.


MS. BRIGHT: And usually before this thing happens, it has been reviewed extensively.


COMMISSIONER HOLMES: Just out of interest, you say you may refuse a permit. Would that include revoking the permit that has already been issued?

MS. BRIGHT: That would actually be different. We can revoke. We have a statutory right to revoke a permit. Under the Parks and Wildlife Code however, that would require a full-blown hearing. We don't tend to do that very often. Mainly because there are sort of two issues. One is a resource issue, and one is a practical issue.

COMMISSIONER FITZSIMONS: It is an annual permit.

MS. BRIGHT: It is an annual permit. And so by the time we go through the hearing process, the permit would have expired anyway. So this is, if someone comes in and says, I want a permit, or I want a new permit, that is when this would kick in.

MR. WOLF: I can say — Ann, you may want to stay. There may be more questions on these other slides here. I can say that you know, our breeder user group, we presented this also and our breeder user group, they discussed some of their concerns with this ability to have some discretion in this. And our response to them has been the same as Ann described.

That if this Commission chose to approve the publishing of a rule that is fairly broad, that we think encompasses everything, then you still have the latitude to adopt something or not adopt certain provisions, if someone gives you a compelling argument that maybe it is not appropriate. And so we would hope that the rule is all encompassing and then if someone does provide a compelling argument during the comment period, that you obviously would have the latitude not to adopt certain parts of these.

COMMISSIONER FITZSIMONS: Donato, you had a comment, or question?

COMMISSIONER RAMOS: Well, yes. And I was going to say, this is an administrative due process procedure as compared to a trial. So the standards are a little bit different. But yes, we do have to give them administrative due process.


MS. BRIGHT: Right. And I mean, it is really not, because these are privileges and as Judge Cooper here in Travis County kept emphasizing in a court case about a year ago, these absolutely are privileges. But again, we do want to make sure we are fair. And so, we haven't been really using the term "due process," because that — you know. And that is why I say it is sort of little or mini due process, because it is not really the full-blown due process when you have got a property right.

COMMISSIONER FITZSIMONS: That is an important distinction. Anything else?

COMMISSIONER RAMOS: I just wanted to generically, we have been talking about scientific breeders for a long time, and reporting back and forth. And I am going to re-urge what I have said historically.

And that is, it seems to me that if we have scientific breeders, and they are going through extremes in managing their deer, and improving the quality of the deer, that part of the condition for a permit is that they give us some data, the results of their efforts, so that we can benefit from that and other breeders in the State could benefit from it. And I am not saying that it would have to be mandatory. But it seems to me that we are not getting —

COMMISSIONER FITZSIMONS: Actually, the Code assumes that — if you read the Code, am I right? Is that scientific purposes is stated there.

COMMISSIONER RAMOS: Yes. But what I am saying is, to me, when I think of if you are doing a scientific study of breeding a dog or a horse, that you end up with results from that scientific effort. And all I am saying is, to the extent that there are benefits, or there is a trend, or there is data that can assist us, that we ought to have the scientific breeders, on an annual basis say, let me tell you what I have learned from my five years of experimenting with spikes or this or that. To where we get the benefit of that data.

I don't know how much of that is actually occurring. And there is a ton of data that has got to be out there, that I think we should be benefiting from. We — Parks and Wildlife, where we in turn can share with our biologists and other people in the State.

COMMISSIONER FITZSIMONS: In return for the permit for managed or holding a public resource.

COMMISSIONER RAMOS: Absolutely. For having the right to have the deer in captivity and being "scientific breeders." I mean to me, the term "scientific" connotes a contribution bettering the resource, the animal, be it a deer or quail or whatever. If you are a scientific quail breeder, I would think that you are trying to improve the knowledge regarding quail or habitat and so forth.

COMMISSIONER BIVINS: Is any of that proprietary?

COMMISSIONER RAMOS: Well, I would say no. Because it is a privilege. They don't have a right. That is why we have it.

COMMISSIONER BIVINS: Okay. Commissioner Ramos. It can be a condition of a permit. And I am not saying that it — I just think that we are not getting the benefit of the data that is out there.

MR. WOLF: I would have to say that I am aware of a few — I guess you would call them legitimate studies. There is research designed that universities do specifically with deer management permits and some other permits, that is well thought out, and it is data that you can look at. Now, I would say that probably we have a lot of folks that might use the term "data anecdotal information" about what goes on.

But generally speaking, my understanding of the breeder industry is there is very little data collection, if you will, I mean, other than anecdotal or maybe the score. We have got a buck of this size. But you know, if these animals are being liberated into the wild, you know, the true question is, what contribution is that animal making? And you are getting into studies that involve genetics and DNA.

There are some of those I am aware of, for instance, with DMP pens that are starting right now. I am not aware of anything with scientific breeder permits. But there may be some out there. And they would really have to be done, I mean, there would have to be a study design involved in that, to ensure that we got good information.

COMMISSIONER FITZSIMONS: As you pointed out, the average scientific breeder permittees' data does not rise to the level of scientific data.

MR. WOLF: I would have to agree with that.

COMMISSIONER RAMOS: And I am not suggesting that. But what I am saying is, it would seem to me that someone who is willing to spend the kind of money that is spent in these programs, that they have to have some management goals and some objectives.

And yes, maybe it is not a scientific study, but they have got to say, well, the results of this was this. But don't go down this rabbit trail, because here is a dead end. To where you can benefit from that data. Or you say, you know, we were able to produce these 14 pointers as three-year-olds. And it seems, they all came out as spikes, for example. Do you see what I am saying?

MR. WOLF: Right.

COMMISSIONER RAMOS: I am saying, even if it is not scientific, but it is data that we can put in our hopper, and weigh it. Say, well, it is not scientific but we think it is some significance.

MR. WOLF: Right.

COMMISSIONER RAMOS: Do you see what I am saying?

MR. WOLF: Yes, sir.

COMMISSIONER RAMOS: I don't think we should reject data merely because it is not a formal study. We take it and then we take you all, our experts in-house and say, well you know, this is interesting.

MR. WOLF: Right.

COMMISSIONER RAMOS: And then you can follow up on that. That is all I am saying.

MR. WOLF: Okay. The other point that I need to I guess, seek clarification on, or get permission. In your booklet, for instance, under the Triple-T rules and the breeder rules, we — the terminology in there is, "reserves the right." And we would propose that what we publish is identical to what is on the slide here. The terminology "may refuse," just to be consistent.

And so, we are asking for permission to change that text, just to make it all looks like what you see on the screen here before you. Additionally, in our breeder rules, I believe it is when it refers to agents, the last time I was before you, the question was asked of me, can someone — if someone wasn't qualified to get a permit, could they do business some other way? And we have tried to address that directive, or that concern.

One of those is through this provision, that the Department may prohibit a person from basically serving as an agent on a permit, if they have the same types of violations. Because basically, we have folks out there that are deer brokers. They could be listed on 100 different breeder permits and never be the applicant. And they could be in the business of moving a lot of deer and holding them in captivity. And obviously, if they have got a record that shows we can't trust them dealing with captive wildlife, we don't think that we would want them being an agent on a permit and still being in business.

And so in front of you, the language that you have up there, I believe under Triple-Ts we did not have Items 2 and 3. And because we want to make this consistent, we are requesting that we publish that with all three of those items in there for agents. I am getting close to the end.

Finally, we have a proposal under DMP and Triple-T only that we may deny or refuse to process a permit or renewal if the applicant is a defendant in a prosecution for those three charges. So it is not a conviction or a deferred adjudication. And of course the thought-process is, if our employees, our game wardens have significant and compelling evidence that violations have occurred and those charges are up that there's not been a disposition, that the Department had the discretion to wait and not issue the permit and issue someone that, if they have compelling evidence that a violation has occurred. A specific note, you will notice that does not occur, we are not proposing that in our breeder rules.

And finally, we propose the Department may refuse to issue a permit to any person the Department has reason to believe is acting on behalf of or is a surrogate for another person who is prohibited by provisions of this subchapter from engaging in permitted activities. And that was also to address that specific question to me, what if the husband is no longer qualified, could the wife just apply and the husband continue to be involved in that business. And that is the intent here. I can tell you that this provision does give some of our breeder user groups some heartache. And I am sure that we will probably get comments during the public comment period, if you all choose to allow us to publish this.

Two more brief items under DMPs. We have proposed to change the language so that changes to an approved Deer Management Plan shall be considered a new application unless changes are necessary to comply with regulatory or statutory requirements implemented after the Deer Management Plan was approved. Basically, if we change the rules, we don't anticipate penalizing someone else.

And one clarification. We propose that a DMP will not be issued unless the applicant's Deer Management Plan has been approved by a Wildlife Division technician or a biologist assigned to write wildlife management plans. As a result of a recent lawsuit, we became aware that our current rule was misunderstood. The misunderstanding was that folks thought that if our wildlife biologists sign a plan, that that compels the Department to issue a DMP.

But obviously, there are other statutory requirements, like paying the fee, meeting statutory requirements, and so — and in fact, the adoption record in 1997 clearly indicates that was the intent of this Commission. And so we propose to change this wording just to clearly articulate what the intent has always been, if you choose. And that concludes my presentation.



COMMISSIONER HOLMES: Clayton, you mentioned about increasing the fee from $180 to $280?

MR. WOLF: Yes, sir.

COMMISSIONER HOLMES: And that is kind of the revenue side? Do we have any notion of what it costs us to —

MR. WOLF: I have some rough figures. We did some bill analyses during the last session. And it costs the Wildlife Division about $100,000 a year to administer the program. That is my time and all the permits folks.

Law Enforcement Division here recently went back and used a code that applied to all deer permits. And a conservative estimate from Law Enforcement Division to enforce breeder rules is $200,000. So $300,000 for the Agency, and we are taking in about $200,000 a year on breeder permits.

COMMISSIONER HOLMES: Wait a minute now. I was multiplying $280 times 800 breeders.

MR. WOLF: Yes, sir.

COMMISSIONER FITZSIMONS: We ain't at $280 yet.


MR. WOLF: For breakeven? Is that the question?

COMMISSIONER HOLMES: Well, that might get it slightly over.

MR. WOLF: If the rules were adopted, we would not be covering costs, our estimated costs in the program.

COMMISSIONER HOLMES: And will you take that into consideration when you determine the $280?

MR. WOLF: We talked about it. As I said in my presentation, my approach was a no net loss in revenue, and be prepared to answer those questions. If our estimates are anywhere close, and we wanted to cover our costs, we probably would need another $110 increase to cover a very rough estimate — I mean, the records on Law Enforcement end are — they were kind of lumped.

COMMISSIONER PARKER: On top of the $280?

MR. WOLF: Yes, sir.

COMMISSIONER HOLMES: Yes. Because if there are 800 permits and $300,000, the $400 gets you to about $320-.

MR. WOLF: That is correct.

COMMISSIONER HOLMES: So what was the rationale on not proposing $400?

MR. WOLF: Our rationale, and our approach and our proposal is basically a no net loss in revenue. Now, breeder permits are not dedicated funds. And obviously, we have spending authority caps. And even if they were increased, there is no guarantee that the Agency would be allowed to spend that money, or somehow it would go to permits or to whoever. But like I said, my rationale was simply a no net loss approach. We all, and we even heard it from the breeder group, probably understand that we are not covering the costs that our Agency has in it right now, or even with $100.

COMMISSIONER HOLMES: My sense is that we should work towards user pay that offsets the cost everywhere we can. And I recognize that we may be raising more money in a fund that we already have a surplus in.

MR. WOLF: Right.

COMMISSIONER HOLMES: One of these days, we might get to spend it.

COMMISSIONER MONTGOMERY: I agree with you on the user. This should be billed at cost. And the cost should be properly accounted for, and we know what it is.

COMMISSIONER FITZSIMONS: It is that second point that is a little bit difficult.


COMMISSIONER HOLMES: Well, we have got to do the best we can.

COMMISSIONER MONTGOMERY: Do the best we can. It would never be perfect.

COMMISSIONER PARKER: Yes. And knowing that $280 is not going to cover it, and we need another hundred and how much?

MR. WOLF: A conservative estimate was 110.



COMMISSIONER HOLMES: Why would we do that?


COMMISSIONER PARKER: Why wouldn't we do that? That is what I am saying. Why throw an apple out there that you're paying 50 cents for and you're going to sell it for 40 cents? And you know ahead of time that you already paid 50 cents for it.

COMMISSIONER HOLMES: We are not talking big money in respect of the operations of these folks. And so, I would suggest that we consider something that actually covered what we believe to be the cost of administration.

VOICE: Absolutely. Agree.

MR. WOLF: Is that what you wish for us to propose? You want us to go based on a revenue, or do we —

COMMISSIONER FITZSIMONS: The Chairman of the Finance Committee, I would listen to the Chairman of the Finance Committee.

MR. WOLF: Okay.


COMMISSIONER FITZSIMONS: Ned handles all our financial issues.

MR. WOLF: Okay. We can certainly do that, whether I give you a figure today based on some very coarse estimates, or if we are allowed the time to go back and look at it a little bit closer and see if we have anything better. But it is probably going to be close to 400.

MR. COOK: What I am hearing the Commission say, Clayton, based on what you have said here today is, instead of going out with $280, go out with four. We have got a comment period built in here. Have the discussion, get feedback. My general impression is that the breeder group, you know, is not objecting. No, they are willing to pay their way. They are willing to help do this. I think it is incumbent upon them and us, again, to make this system simple enough that it doesn't cost anybody as much in time and/or effort. And including them and us. So if we just adjust that number today, that gives us the comment period and the time to work with the group to find, get our data refined some and get feedback from them. And it gives us time to make the decision.

COMMISSIONER FITZSIMONS: As a closing comment to this idea of user pays and covering it at full cost, at some point, we are going to have to know what the added cost is going to be once we have a positive. And we start having to regulate a permit system that has some positive CWD. On that cheery note —

COMMISSIONER PARKER: That has that positive — what did you say?


COMMISSIONER FITZSIMONS: The cost will change when that happens.

COMMISSIONER HOLMES: Yes. That is pretty hard to quantify.

COMMISSIONER FITZSIMONS: I am just saying it is hard to quantify, but be ready because that number will move.

COMMISIONER HOLMES: So I'd rather start from four.

COMMISSIONER FITZSIMONS: Yes. Exactly. It will be a lot easier if we start doing it.

COMMISSIONER PARKER: We can always negotiate.

COMMISSIONER FITZSIMONS: Yes. All right. Anything else, Clay?

MR. WOLF: No. That is plenty for me.


MR. WOLF: Yes, sir.

COMMISSIONER HOLMES: You were only there an hour and five minutes.

MR. WOLF: And I just see — Sinclair.

Go ahead, David.

MR. SINCLAIR: Just a clarification. The breeder user group was suggesting one activation and ten days. Law Enforcement would like the 48-hour period. The ten days would go away. It would be moot. And keeping in mind with what Ann Bright mentioned earlier, you know, if we proposed, the law enforcement would be a little more restrictive. It goes to one permit actually, one transport.


MR. SINCLAIR: We publish that and you still have that ability —


MR. SINCLAIR: — to go back to the breeder user group.

COMMISSIONER FITZSIMONS: Publish 48 and then you could go to ten or whatever —

MR. SINCLAIR: Yes. You could leave it at 30 if you wanted to.

COMMISSIONER MONTGOMERY: On the occurrence issue, do you want to publish a higher number that we can put back or a lower number? Title of several issues next to the one occurrence.

MR. SINCLAIR: I think the 48 hours, the one transport permit.

MR. COOK: If you publish the 48, you can come back to the ten days if you so desire, but if you publish ten, you cannot be more restrictive on the impacted group.

COMMISSIONER MONTGOMERY: Just, when the time changes, they may want to change the occurrence. And I was wondering if you need to then publish a higher number of occurrences or keep a lower one. But we are still able to change that if we choose to. Right?

MR. COOK: I am sorry.

COMMISSIONER MONTGOMERY: May not understand the occurrence issues. Right now, they can move twice within a ten-day period, so that's only one occurrence.

MR. SINCLAIR: Well, it would be — it's actually unlimited in that ten-day period.

COMMISSIONER MONTGOMERY: Well, I am saying that when you go to 48 hours on one occurrence, they are going to say, wait a minute, we need two or three occurrences. Do we need to publish two or three; or we'll just leave it at one and change the one if we choose to.

MR. WOLF: One occurrence would be the more restrictive on that. And —

COMMISSIONER FITZSIMONS: So, you publish one, and then based on public comment, you go to the greater.

MR. WOLF: And also, just to clarify, we will attempt what we can do on the unique identification.


MR. WOLF: As Ann Bright indicated. And also that the denial provisions and the language and terminology are, we would propose it be all consistent with what's on the screen because we have some discrepancies in what you have in your hearing book today. I want to make sure that that's the direction we have.


COMMISSIONER HOLMES: Social Security numbers have nine digits. Sixteen, that's a lot of individuals.

COMMISSIONER RAMOS: If you've got a tattoo, you won't have it on its ear.

COMMISSIONER FITZSIMONS: Can you use letters in the numbers?

MR. WOLF: We do in our Department-assigned. It is a combination of letters and numbers and that gives us a —


MR. WOLF: We are not going to run out of numbers, even if we stuck with what we had.

COMMISSIONER FITZSIMONS: Yes. Okay. Are we ready to go. John?

COMMISSIONER PARKER: One more little thing. I am sorry. What would happen if you just decided to tell those fellows, we are going to go to that chip deal, put it in the ear.

MR. WOLF: Well, I am sure that any change in the industry always results in some resistance. Theoretically, the folks I have visited with understand that we are going to get there eventually. I think the thoughts were that we would still see some resistance, but obviously, that is the discretion of this Commission to let us know where we —

COMMISSIONER PARKER: It would be so much simpler with that chip.

COMMISSIONER BIVINS: Have any other states done that?

COMMISSIONER FITZSIMONS: I am not familiar with it, Clayton.

MR. WOLF: Texas is starting it with cattle and maybe some other livestock in the national program. It is a pilot program right now.


MR. WOLF: Texas, Oklahoma —

COMMISSIONER FITZSIMONS: I think your question is with regard to captive cervids, though. Right? With regard to captive cervids.

MR. WOLF: Not that I am aware of. I mean, it may occur, but —

COMMISSIONER FITZSIMONS: New York dealt with it in a different way. They just shut down the whole captive Cervid —

MR. WOLF: In regard to deer, many other states — Texas has a — many other states have a very small number, except maybe Michigan and Pennsylvania. And they have some pretty active breeding operations.

COMMISSIONER FITZSIMONS: I need another Commissioner to —

MR. COOK: While we are waiting for another Commissioner to be here, I think in reference to the —


COMMISSIONER PARKER: Mr. Cook is speaking.

MR. COOK: I think in reference to the pit tag or whatever it is called, that the user group and staff is recommending that we work with USDA and Texas Animal Health and get that system more refined before we implement it. I don't think anybody is ready just yet to implement an inset tag system. Maybe a year from now. Maybe two years from now. I am not sure. But the sooner the better.

COMMISSIONER PARKER: Like Mark said, the technology is there, you know. All we have to do is say we are going to do it.

COMMISSIONER FITZSIMONS: As soon as I get one more Commissioner, we can —

MR. WOLF: One said that it took them a little longer than they thought. It is not simple.

COMMISSIONER FITZSIMONS: Are you clear where we are, Clayton?

MR. WOLF: Yes, sir. I believe I am, as far as we understand the language, the language on the permit, denial provisions that I showed you on the screen, it is somewhat different in a few points. And I wanted to make sure that we do have permission to go forward with those changes. And I am clear.

COMMISSIONER FITZSIMONS: Very good. All right. If there are no further questions or discussion, I authorize staff to publish this item in the Texas Register for the required public comment period. Thank you.

MR. WOLF: Thanks.

COMMISSIONER FITZSIMONS: Off to Committee Item 3. This is a new record for the Regulations Committee. In your honor, Mark. I don't know what effect you have had on us here. Hunter Education Plan and student fee increase, permission to publish. Steve Hall.

MR. HALL: Good morning, Mr. Chairman, members of the Commission. My name is Steve Hall. I am the Education Director responsible for the mandatory Hunter Education Program. Today we have a proposal to essentially increase the Hunter Education student fee.

And we are seeking permission to publish. The current fee is $10. This was established in 1995. And the volunteer instructors by statute are allowed to retain a portion of that to defray their administrative or out of pocket expenses, and that currently is $5. The proposed fee will be $15 per student, of which the volunteer would be allowed to retain $10. And this is the — $15 is the cap allowed by state law, so effectively this would bring us up to that cap.

The benefits of that proposed fee, first and foremost, would be to provide incentives for volunteers to teach more courses. It gives us a tool to recruit and retain more volunteers. And most excitingly, I think that we would like to develop a new level of instructor called Hunter Education Providers. This would be a program in terms of the providers that would target the major retail outlets, the hunting lodges, the target ranges, the places where the hunters are.

First, it would help us increase the frequency of course; it would help us decrease the time a student would actually come and be proctored or be able to take the course, especially if they had previous knowledge and skills. And then finally, it is kind of an exciting system whereby we use simulated computer experience to try to replicate various hunting situations, something that we can't even do in the [inaudible] course.

And with that, I would be able to handle any questions. I will say this. That after our deferral program of over a year ago, we saw a huge recruitment in adult hunters, through that program, and we are hoping to recruit more youth hunters through this proposal or through the provider program.

COMMISSIONER FITZSIMONS: So the deferral program has been a success?

MR. HALL: Yes. The preliminary data suggests that 60 percent of the purchasers which was over 10,000 in this first year, 60 percent of which had not previously bought a license in the three prior years. The survey that we did as a follow-up, that we haven't finished compiling yet, but the preliminary data shows that in the survey, the hunters said that — 30 percent of the hunters said that they were new to hunting. So between 30 and 60 percent of a recruitment value.

COMMISSIONER FITZSIMONS: And the balance of those were lapsed that we recaptured?

MR. HALL: Yes. Most of our hunting data show that there is a big drop in sales around 19, 20 years of age, and then a resurgence of sales around the early 30s. The average age of this purchaser is 30 years of age. And so what you are seeing is a little bit of the bringing the low hanging fruit back.


COMMISSIONER MONTGOMERY: Do we have retailers, sporting goods retailers who are planning to offer this course, and if so, to what extent, and what do you envision there?

MR. HALL: Well, we will have to provide a — I mean, we will have to develop it. And we have got laser shot, which is the technology that we are using on board. We have Texas A & M our partners on board, and others on board, in terms of the development of this thing, making sure that we get all the players involved.

But Gander Mountain, for example, already uses a system that I would call a provider system, whereby they have a hired staff member that goes to every gander, and provides routine courses. What this tool would give that person though is something they can use indoors at the store itself, to simulate hunting. Right now, our follow-up courses are largely outdoors and they are hunter skill based. They are actual simulations.

This is a simulation as well, but it is a computer-based simulation. And of course, it prevents all that time it would take to set up the course, is things like this. So it would get the students in and out quicker as well.

COMMISSIONER MONTGOMERY: I guess what I am trying to get at is, for urban kids particularly, if you can get it at sporting goods stores, and the urban areas, it is a very convenient way to get this done. I would think it ought to help. Is that what you are envisioning here?

MR. HALL: That is our intent.

COMMISSIONER MONTGOMERY: Do you think that is likely to happen?

MR. HALL: Yes. We want every major retailer involved in this program such that if — they can advertise better for us, as you know, where people buy their goods.


MR. HALL: And they usually have a conference room, a board room or something that this could be achieved in. And some of them have the actual shooting simulations already in there. We would modify that to a Hunter Education —

COMMISSIONER FITZSIMONS: So do you have the input of the major sporting goods retailers on this, and their —

MR. HALL: Yes. Initially in that meeting that you had attended, Chairman, you know, I had kind of planted the seed. But since then, folks like Trey Lichtenstein and others you know, are in the mix, and they are liking what they hear. What we are trying to do with this fee proposal is simply to maximize essentially, their involvement, as best we can by law.

COMMISSIONER FITZSIMONS: So that the retailers can package this curriculum. And it is a price that they won't — at least, won't lose any money.

MR. HALL: Correct. And truthfully, we could also get them with our volunteers, and the volunteers could actually go into the stores, which is what is happening in Gander Mountain. And so they really actually wouldn't lose. If they can just provide us the space.

COMMISSIONER FITZSIMONS: Is the curriculum packaged in such a way so that those existing groups, what I refer to, or marketing people would refer to as the pre-qualified group, whether that is kids at summer camp, kids at a church camp, kids in Boy Scouts or Girl Scouts. Where you have already got them captured. They can get that Hunter Education Program in a packaged curriculum, it is really delivered to the adult leaders of those groups.

MR. HALL: Correct. The pre-study would be a same or similar process. Instead of the six hours' credit that we give them on the internet, they would actually get eight hours of credit to a pre-study. And then when they take the challenge, they would get four hours of credit. But they might take — those that like a camp setting or whatever, with previous knowledge and skill, it might take them, especially if it is individually, it might take them two hours to complete.

COMMISSIONER FITZSIMONS: Have they been able to get it worked into the curriculum for the Brigades, yet?

MR. HALL: Well, we have always had the shooting sports in the Brigades. But I am thinking that it would be real easy. Even though that is a pack trip — COMMISSIONER FITZSIMONS: I think you ought to look at doing that. Because it amazes me that a kid can go through that Brigades program, and not come out of there with a Hunter Ed certificate.

MR. HALL: Yes. We can do that. Yes. That would be the easiest network to work with. And Tamara and others will be involved in this development.

COMMISSIONER FITZSIMONS: Any other questions for Steve? If there are no further questions or discussion, I authorize staff to publish this item in the Texas Register. Thanks, Steve. Thanks for your hard work. You have been working on this for a while.

Next up, number four, seagrass protection in Redfish Bay Scientific Area. Larry? Hello, Mark.

MR. MCKINNEY: Good morning, Mr. Chairman and members. I am Dr. Larry McKinney, Director of Coastal Fisheries. I have asked Colonel Flores from Law Enforcement to join me for the presentation as well. A very brief recap.

This spring, the Commission adopted a scientific area of the Redfish Bay State Scientific Area as outlined in yellow here. Very quick, the purpose of a state scientific area is to allow the Commission to consider and adopt rules for a whole range of circumstances. Dealing primarily — we are dealing with protection of conservation of habitat, which normally, you cannot deal with. And in this particular case, we are talking about seagrass.

In August, we brought forward a proposal to look at, to define seagrass within this state scientific area, and a rule to disallow the destruction of seagrass through use of propellers. At the discussion of that, the Commission, because of concerns over enforceability and what things could be enforced, asked the staff to go back and look at developing no-prop zones, which we have done, to put into place to address those concerns and have those put into the rule to be considered before you today, or at this hearing. Just very quickly, the rule, we set up three no-prop zones that were based on the voluntary no-prop zones that had already existed.

The one change that we put in here is to add in running lanes, and areas that are detailed in green here. So to make these, the no-prop zones as fishing friendly as possible, so that, for example, those using them would have a reasonable drift, 20 or 30 minutes they could come to some point where they could get up and get out of it. We conferred with guides there.

I do want to — and in doing this, I do want to point out that as — if no-prop zones were to be adopted, that we have talked with our guides in the local area, and assured them that as we develop those things, that we might come back and modify them as needed to make them more user friendly, whatever, is possible. And so obviously, we would all want to do that. This is the second one, and then the third zone here.

COMMISSIONER FITZSIMONS: Would you go back though?

MR. MCKINNEY: Yes, sir.

COMMISSIONER FITZSIMONS: So the other Commissioners get a concept of the scale of what we are talking about is really not all that great. In the upper right-hand corner, you have got a little box representing the area in relationship to I guess, that is all of Redfish Bay?

MR. MCKINNEY: Yes, sir.


MR. MCKINNEY: I would go back to the — there is the —

COMMISSIONER HOLMES: What are those two islands there?

MR. MCKINNEY: I am sorry. Which? Let me go back to here.

COMMISSIONER FITZSIMONS: Yes. Well, any of those that show the size of the area that we are talking about.

MR. MCKINNEY: All right.

COMMISSIONER HOLMES: Larry, will the boundaries of these no-prop zones be reasonably identifiable?

MR. MCKINNEY: Oh, yes sir. That is part of what we are talking about. They are pretty well known now, but they would be obviously well marked.

COMMISSIONER HOLMES: Putting up signs?

MR. MCKINNEY: Yes, sir. PVC-based type signs at regular intervals and that type. We have had long discussions about how to do it. And have done so, in the voluntary. We have learned a lot. We didn't do what we should have done in the voluntary, so we have learned a lot about how to market these things.

COMMISSIONER FRIEDKIN: Larry, can you briefly go back one more?

MR. MCKINNEY: Yes, sir.


MR. MCKINNEY: To the broad area?


MR. MCKINNEY: It is about — the whole scientific area is about 36,000 acres in total. And so we are talking adding up to about 1 percent or something a year.

COMMISSIONER FITZSIMONS: One percent. I thought it was really more.

MR. MCKINNEY: I see a thousand, 2,000. About 10 percent. Yes. 2,000 acres in red and Brown and Root. That is about 3,000 acres all together in the no-prop zones.

COMMISSIONER FITZSIMONS: So less than 10 percent.

MR. MCKINNEY: Less than 10 percent in the total —

COMMISSIONER FITZSIMONS: In the total scientific area.

MR. MCKINNEY: Right. In this particular one here, it kind of skews it. This is the brown and root. There is about the only area in which you can operate a boat right now is in that green area in the brown and root anyway. So in fact, the rest of that area, although it would be no-prop there is no real way to put a boat in there anyway but it would be part of the area. Does that make this clear?

Public comment, and I am going to have to ask you to ignore this particular slide. We got more information that came in, and when we looked at it — it came in late this morning, and we misread what that input said. So I am going to give you the numbers of where we are now with public comment. We have had 37 comments in opposition to any regulation. We have had 42 comments in support of both, doing the areawide and the no-prop zone, doing both of those.

We have had, and this is really the later edition, 39 comments in support of the no-prop zones along just doing no-prop zones not areawide. And three at this point in support of areawide. Comments, these are individual type comments. We have received information or input from non-Governmental organizations. I would tell you this is what their position is today. I can't tell you what it will be tomorrow.

To some extent, I will try to point out a little bit of what I know here. Coastal Bend Guides Association, they favor the no-prop zone, but not the areawide rule. Coastal Conservation Association, CCA prefers or has supported the areawide rule, but not the no-prop zones. Port Aransas Boatmen support both. This is the one group that I think that may change, but I don't want to pre-empt it. They have not given us anything. Their official letter is this, and I have heard that they may change their position, but I don't know to what. Recreational Fishing Alliance, and Save Cedar Bayou both no to any proposals.

The only, so far, the only governmental organization that we have heard from, the City of Corpus Christi's Port Authority had two comments. One is to clarify damage, to make it clear that it means impact from boat propellers. And also, we weren't aware, they did not make us aware of this until this time that part of our scientific area overlaps an area which belongs to them. They would prefer their property to be excluded from this area, which is fine. Kind of disappointing. I would hope that they would want to work with us on conserving the seagrass in the area, but that is —

COMMISSIONER FITZSIMONS: How much land is — how much property there?

MR. MCKINNEY: Well, as someone said, it is mostly — a lot of it is dry land, so it doesn't make any difference anyway. It is just a small area. It is not significant. I don't have the actual measurements of it. But from my guess there, it looks like 30 or 40 acres or something of seaway. So it is not much.

COMMISSIONER HOLMES: You told us earlier that you can't get around anywhere but the green part anyway, right?

MR. MCKINNEY: It is not a significant issue, there. Because you can't get — where that land is, you couldn't put a boat in there. If you did, you would do it one time.

COMMISSIONER HOLMES: And it would stay?

MR. MCKINNEY: It probably would stay.

COMMISSIONER FITZSIMONS: It's like how you can be a mine sweeper one time.

MR. MCKINNEY: It is not significant. If it is important, is it easier just to pull them out here. The Coastal Resources Advisory Committee, to try to summarize their comments, they did support it. They felt that we needed to move to regulations. As with you, I guess you are pleased that your Committee does represent the broad spectrum of views that we have gotten, because they were split between proposals. There were —

COMMISSIONER FITZSIMONS: Did I appoint a little bit too broadly?

MR. MCKINNEY: Well, there are certainly divergent opinions. And I think that is good, in regards.

COMMISSIONER FITZSIMONS: There are not any shy people on there.

MR. MCKINNEY: They are not shy. All of them were very clear in letting us know their opinions. There was no ambiguity at all. One contingent felt that the areawide rules were the best way to go. The others felt that areawide was fine, but they thought the no-prop, because the enforcement issue was important. And then there was a group of four that said, well, let's just make it really clear. Let's just have no motors in those zones, take them out altogether. So that was one contingent.

COMMISSIONER FITZSIMONS: That would mean that you couldn't even pole a motored boat?

MR. MCKINNEY: You wouldn't have a boat in there with a motor on it.

COMMISSIONER FITZSIMONS: Well, that doesn't seem practical.

MR. MCKINNEY: I am just telling you that was a group, and I let you all know that. Regardless of their particular position on what should be done, all of them did have these. Education was really important. Whatever we did, that education element had to be there. Marking, as you talked about. That we had to have them clearly marked. And enforcement, we have to have — we have to be able to enforce them in a consistent manner.

So with that, staff has taken a look at the proposal that we had before you last month. We had no changes in the definition of seagrass. That was quite clear. Following the recommendation from the Port, it didn't make sense that we would modify that to make it clear that we are talking about destroying seagrass with a submerged propeller, that we wanted to — that was what our intent was, and not anything else. And that made that clear for them, and that was a good suggestion.

Also, some concerns came up at several meetings. We wanted to just — it was not our intent — we want to again make this clear that vessels may anchor within the Redfish Bay State Scientific Area. That does not constitute destruction of seagrass. Putting an anchor on the bottom does not. Vessels can use trolling motors anywhere in the state scientific area. That was absolutely allowed, too.

So we just added these in, to make that clear, so that it is unambiguous to those folks. We had no recommendation or changes within how we would set up the actual zones themselves, the no-prop zones, so that the rules as we had there would hold. Keep in mind that anywhere in these no-prop zones, we are not addressing the issues of air boats, jet drives, or any type of prop drive or poling or trolling or electric trolling motors. Those would be allowable anywhere within those zones, because this is a habitat-based issue, and clearly, that is dealing with air boats and jet skis are a whole different venue. Although, I —

COMMISSIONER FITZSIMONS: It is clear that they don't damage?

MR. MCKINNEY: Under the definition that we are working with, submerged props.

COMMISSIONER FITZSIMONS: Can you get comfortable from a resource standpoint that your definition meets the objective of protecting the seagrass.

MR. MCKINNEY: That is correct. We have no evidence that they do. Certainly, people have concerns about them for other purposes, but not from a habitat perspective. We have no basis for saying that they shouldn't operate in those areas. No change in the penalty, that would remain. Regardless again, of positions, from comments, I did want to summarize those again.

There were consistent comments from the public. And one, again, education and outreach. As our Committee said, that was very important. We need to continue that. Boundary lane and marking, again, important. Consistently enforce whatever might be adopted. And another one, evaluation to make sure that we are evaluating the impact of our regulations, which we are. I have set up to do to look at how effective whatever rule we move forward with. In closing, comments.

Ready for questions. I would say this has been an interesting experience. When we started this, looking at these issues of four or five years ago, the change that has happened over the last four years has been gratifying in that at that time, we were really talking about whether we should do anything or not. As you can see, the preponderance of comments here is not whether we should do something or not.

Everyone, I think, recognizes the importance of conservation of seagrass. Just how can we best do it? And that is gratifying. You will hear tomorrow, I am assuming. We do not have those comments now, but the City of Port Aransas, Aransas Pass, County Commissioners, perhaps even Representative Seaman, I don't know. We know that they have a position. They are going to let you know about that. But they do not have it ready in advance, so I can't tell you what it is today. But I think it will be in that vein. I am hoping it will be in that vein of how can we do this to conserve this seagrass.

Because seagrass down there in that area and any place on our coast, it is the goose that lays the golden egg. And we have to conserve it to go forward, and that is the key issue.

COMMISSIONER FITZSIMONS: What research are you doing there in that scientific area? Presumably it will be easier to do the research once you stop the destruction of —

MR. MCKINNEY: Well, we tried several approaches. But we have finally gotten down to basics. You have got to put a body in the water, put a face mask on them, and lay out transits, and mark them, and do a process like this so that we can go back and do random sampling of the system. So that we can evaluate over time the percentage of change we see in scars. And it is a labor-intensive job.

COMMISSIONER FITZSIMONS: The objective is to figure out what the healing process and the requirements are to heal a scarred area.

MR. MCKINNEY: Yes. Very basically, when we come back with our evaluations, we are going to — we hope we will see, has there been any changes. Is there more scarring or less? Is the scarring the same, because it hasn't changed, or has it decreased, or has it increased? We will be able to evaluate or come up with one of those three answers. And two of those answers is good for us, in regards to what regulation we pass.

If we see no increase in scarring, that will be good. If we see a decrease, that is even better. And if we see an increase, that is a concern that we may have to look at other steps that are more drastic.

COMMISSIONER FITZSIMONS: From a purely research standpoint, a resource standpoint, understanding the resource, what is the best approach to advance your research there? Areawide or no-prop?

MR. MCKINNEY: That is irrespective of that. That is an issue of efficacy of accomplishing the goal. We can measure it in any regard. It doesn't matter. We will be set. There will be a little bit more work we have to do in the no-prop zone type situation.

COMMISSIONER FITZSIMONS: It is hard to get a control group though, without the no-prop, right?

MR. MCKINNEY: Well, we have the whole remainder of the process that we just talked about. Yes. That is it. Yes. So I can't really give you a good answer. It is different.

COMMISSIONER HOLMES: Larry is there not a more cost-effective way of measuring progress or lack thereof, than putting a mask on and measuring the scarring. That sounds really labor intensive.

MR. MCKINNEY: We have invested considerable effort in aerial and even satellite. The problem is because of water and clarity and those types of things, that a different times of year, the expense of doing those aerial photographs and resolution — we are still working toward it. And if we come up with it, we will certainly use it. But we didn't have anything available for us now, and we wanted to have something in place.

COMMISSIONER HOLMES: You have got to have a baseline.

MR. MCKINNEY: We have something to work from.


MR. MCKINNEY: So if something comes along, that will be wonderful. We will quickly adopt it. But at this point, we wanted to make sure that we had a tool that would work no matter what the conditions were, that were very basic, wouldn't be very costly except in people time, and getting wet. And so that is the best we could come up with. And it is certainly the most sound, scientifically.

COMMISSIONER FITZSIMONS: Yes. And presumably, a lot of the changes that you are looking for are so slow and so small, you wouldn't be able to see them from satellite for a while. John?

COMMISSIONER PARKER: This may be not within our protocol here. But I would, with Larry's permission and Pete's permission, I would really like to hear from one of our people in the audience, David Sykes, with the Corpus Christi Caller-Times. If he has — what he has heard about this.

COMMISSIONER FITZSIMONS: We are up for public comment tomorrow, right?

MR. MCKINNEY: Depending on the action today, yes, sir.

COMMISSIONER FITZSIMONS: Well, if we refer this to the agenda tomorrow, we will have public comment on it, before we take any action.


COMMISSIONER FITZSIMONS: I think that is the protocol. The protocol, public comments tomorrow on this.


COMMISSIONER FITZSIMONS: So we are not taking any action right now, other than putting it on the agenda. If we put it on the agenda tomorrow, we'll hear from Mr. Sykes and others interested in it.

COMMISSIONER PARKER: Yes. Because I would like to have — he is in a daily basis, he is down there.


COMMISSIONER PARKER: If he wouldn't mind doing that tomorrow.

COMMISSIONER FITZSIMONS: I will make a note right now to extend his three minutes. How is that?


COMMISSIONER HOLMES: We won't edit your comments.

MR. MCKINNEY: Commissioner, from both Pete's and I, he may have comments. But both of us, our staffs and ourselves are committed to the conservation of this issue. It just how we do so. And I think really what we are seeking guidance from you all today is what to put forward, as we develop a motion for tomorrow, what is your interest. So we can develop one tonight.

COMMISSIONER FITZSIMONS: Is there a staff recommendation now?


COMMISSIONER FITZSIMONS: It is either/or? Either areawide or no-prop zones?

MR. MCKINNEY: Or both. I mean, your options before you are —

COMMISSIONER FITZSIMONS: Explain to me both. Because I am not sure.

MR. MCKINNEY: Right now —

COMMISSIONER FITZSIMONS: I am talking to the Coastal Resources Committee members over the last couple of days. I am not clear on the both option.

MR. MCKINNEY: Okay. Right now, your proposal, the proposal in front of you includes both areawide rule and three no-prop zones. This is as you had this discussion earlier, in order for you to have the full latitude of acting on one, you have to have everything on the table. That is what you directed us to do at the last Commission meeting. So the rule as it stands right now.

If you adopted the rule as it is written right now, it would include both areawide protection and three no-prop zones. Clearly, after perhaps hearing testimony tomorrow, or your consideration, we can modify that proposal. Because anything we would do would be less restrictive. We could take the no-prop zones out altogether and have just areawide. We could do three no-prop zones.

COMMISSIONER FITZSIMONS: The areawide would prevent the destruction of seagrass, but it wouldn't necessarily ban props in those certain zones. The point being, if you can do it, without destroying seagrass, fine. But it is an enforcement problem.


MR. MCKINNEY: That is exactly correct.

COMMISSIONER FITZSIMONS: Unless you actually see the person destroying seagrass.

COMMISSIONER PARKER: Now we are getting down to where —

MR. MCKINNEY: The areawide rule, basically says, if you have the experience, if you know what you are doing, in other words, and can avoid destroying seagrass because you know how to operate a boat and know where to operate, good. Or you can buy equipment to deal with it, by purchasing a jet drive air boat, or a trolling motor, or a pole. You can do it mechanically in some way. You can avoid destruction that way, too.


MR. MCKINNEY: It is on your directions to deal with it. Then that brings up the issues that Colonel Flores had.

COMMISSIONER FITZSIMONS: So if we place it on the agenda as written today, right now, it will come on the agenda tomorrow as both.

MR. MCKINNEY: Both. Yes, sir.

COMMISSIONER FITZSIMONS: And then we can vote, either areawide without prop zone or areawide with or without prop zone.

MR. MCKINNEY: Any of those combinations or others with fewer prop zones, or one or two. It is just really, you have the full range of options. It is whatever you think is the best way to deal with this.


MR. FLORES: Hi. I am Peter Flores for the record. Director of Law Enforcement. Mr. Chairman, in looking at this issue, we fully support the protection and conservation of seagrass. It is very important, and we are with Dr. McKinney and the Coastal staff on this. What is problematic to us is the enforceability of the areawide zone.

Obviously, the burden of proof on Law Enforcement Division here is beyond a reasonable doubt. And to be able to prove that they uprooted that clump of seagrass provides problems for us. Can we work through it? Yes. But it will make it more problematic, not only for us but for the citizens of San Antonio and Austin and all the others that buy a boat and go out in this area. And it might make for some confusion and especially time in court, as opposed to the protection of the seagrass.

Obviously, it is very evident that the propellers do damage to the seagrass. And with us, from a law enforcement perspective, and from I believe, from the perspective of the citizens themselves, it would be either you had the prop in the water, or you didn't have a prop in the water. And it is very simple and easy to understand. Very easy for us to prove.

And of course, this does not — as Dr. McKinney stated, sea anchors, anchors, trolling motors, jet drives. That is not what we are talking about here. We are talking about a clear-cut case of whether our wardens observed, whether out on the water or on the bank, an engine with a prop in the water. It is easily proven. It is an easy rule to understand, no matter from what part of society you are from. And that is the Law Enforcement Division of course, favors that approach for that reason. But the protection of seagrass is very important to us. So to make it clear —

COMMISSIONER FITZSIMONS: Okay. That is clear enough. It is just an enforceability issue.

MR. MCKINNEY: So what we would, unless we would otherwise hear in some discussion, we would be coming forward with you tomorrow with a motion. The motion would include a proposal, basically as it shows on the screen here, with both of those elements in it. You will hear from the public comment, probably extensive and hopefully informative. And then can make a decision from there where to go. But two options are fully open to you under this approach.


COMMISSIONER RAMOS: Yes. I am not as familiar with seagrass and so forth. But you have a trolling motor exception. If you take a trolling motor, and you lower it enough, wouldn't it cause the same damage?

MR. MCKINNEY: Probably about one pass, and then you would have to buy a new trolling motor. So I don't think it is going to happen that much. I'm not being flippant about it. I think it is — not in reality no. It can cut into the grass, there is no doubt. And some of the powerful ones could get at the bottom. But we are not talking about something we could really detect. It is just —

COMMISSIONER FITZSIMONS: It is self-regulating, I think he is saying.

MR. MCKINNEY: I think if you did enough damage to the bottom to be equivalent, you would be —

COMMISSIONER RAMOS: Okay. So we don't need to worry about that in the long haul.

MR. MCKINNEY: No. You would be buying new trolling motors.


COMMISSIONER RAMOS: Some of those are pretty powerful.

MR. MCKINNEY: They are powerful, yes sir.

COMMISSIONER RAMOS: And then you get into the definition of, well, is it a trolling motor or not? But that is all right. That is a different issue, okay.

COMMISSIONER FITZSIMONS: Again, David out in the audience, I apologize, but I am afraid we would be out of order if we took public comment before the item is on the agenda, because —

MR. MCKINNEY: There is a lot of interest in this.

COMMISSIONER FITZSIMONS: Other folks are signed up for tomorrow, presuming that we follow the rules. So with that, if there aren't any other questions, I will place the item on the Thursday Commission meeting agenda for public comment and action. Thanks, Colonel, Larry. I know you guys have worked hard on that.

Next up, Item 5, Chapter 58, Oyster and Shrimp proposed rules. Jerry Cooke?

MR. COOKE: Mr. Chairman and members, my name is Jerry Cooke. I am with the Policy and Science branch of the Coastal Fisheries Division. And I am bringing to you the review of the final of the three meetings involved in reviewing Chapter 58. This is also, I believe, the last chapter in our regs that we have to go through this process.

Congratulations on finishing the round. But for the benefit of newer members, our Government Code requires that we review in every agency review every rule that they adopt at least every four years. The purpose of the review is to determine if the original cause of the regulation still exists. If the issue has evolved to the point that the rule may need to be changed, and that the enforceability of it stays the same as well. Most of that is our part of the process.

The Government Code really only requires that the original purpose still be in place. For the shrimp proclamation, we have proposed to remove all of the language, and it was quite extensive, describing birds and TEDs. Because it specifically mirrored federal regulations. And we proposed to essentially adopt by reference those federal regulations as of May 15 of this past year. We used May 15 because that is the beginning of the closed season for shrimp. It allows fishermen the maximum amount of time to comply should a change come about. Also the sale of aquatic products must be reported to us. It is normally done by dealers.

But we are clarifying the language. We are not actually changing the language, because the requirement was always in place. But if a shrimper sells shrimp from his boat to a member of the public, it is his responsibility to report that sale to us, so that we will have a complete evaluation of the sale of aquatic products.

And also, there was a few housekeeping changes, wording changes. Basically, none of these changes to the shrimp proclamation makes a change in the rule. It only makes it easier to get through. For the crab proclamation, we still had the language in the proclamation that initiated the program many years ago. We have removed all of that language from it. As is the case with all of our other licenses, a business or corporation cannot hold a license for fishing. It must be a human being that holds it.

And we are clarifying that point in the crab proclamation, because it was not as clear as it might have been. Also, some of you know that we went from a metal license plate as a display license to a stick-on that they can put on Plexiglas. And some of the language was not absolutely clear in the crab proclamation about that, so we wanted to make sure that that provision was made. And we had the same kind of housekeeping changes in the crab proclamation as well. And in the finfish proclamation, we absolutely had nothing except clarifying the language relating to the display license. I had no public comment on any of these proposals up until this point.

COMMISSIONER FITZSIMONS: What is your secret, Jerry?

MR. COOKE: Clean living and fancy footwork.

COMMISSIONER FITZSIMONS: Stay low and keep moving.

MR. COOKE: So basically, that completes my presentation to you. And what we are looking for is to bring it to the full Commission tomorrow for public comment and adoption. And this will close out our rule review process.

COMMISSIONER FITZSIMONS: With no comment though, from the industry folks?

MR. COOKE: None.

COMMISSIONER FITZSIMONS: So the industry folks presumably —

MR. COOKE: Well, they understood we were making no change. We are really not changing any of their rules or requirements.


MR. COOKE: We are just changing the language and making it real easier to read and get through.


(No response.)

COMMISSIONER FITZSIMONS: Hearing none, I will place the item on the Thursday Commission meeting agenda for public comment and action. Thanks, Jerry.

MR. COOKE: Thank you, sir.

COMMISSIONER FITZSIMONS: Next up, Ann Bright. Parks and Wildlife Commission Policy.

MS. BRIGHT: I guess it is now good afternoon. Commission, I am Ann Bright, General Counsel. And I am here to go over some updates, or recommended updates to Commission policy. And these are policies of the Commission as opposed to policies of the Department. There are two sort of main categories. And both of these are really cleanup changes.

One is to make some adjustments to the authority of the Executive Director. Another one concerns the Commission travel reimbursement. The changes regarding the Executive Director would remove language to more accurately reflect the at-will status of Department employees. All Department employees serve at the will of the Commissioner. The phrase "for cause" is actually currently in this, and it is inconsistent with the statutorily at-will nature of Department employees.

The current policy refers to the Executive Director's authority to execute contracts for services. His authority is really probably broader than that. I mean, there are a variety of contracts that the Executive Director executes on behalf of the Department. Also, there seems to be some very limited language regarding the ability of the Executive Director to delegate functions.

Again, statutorily, the Executive Director is authorized to hire staff and to delegate some functions. Also, we don't use the term "directive" internally. We use the term "policy." And that is really just a change for easier reference. In terms of travel, right now, if you will notice — or if you have noticed, in the Commission policy we list the specific reimbursement amounts.

The problem with that is that it changes. And rather than having to come back with each change, we would recommend that we just have a reference to the General Appropriations Act. For example, earlier in the year, the reimbursement rate for mileage was about 40 cents a mile. Now it is 48 cents a mile. And you know, as gas prices fluctuate, that sort of thing would change regularly. And otherwise, we would be back here every meeting with minor changes.

Tomorrow, this is the motion that we will be presenting to you. And we would recommend that these changes be made by resolution. And I would be happy to answer any questions.

COMMISSIONER FITZSIMONS: Any questions for Ann? You got the easy one today. You must get to choose.

MS. BRIGHT: Clayton and I flipped.

COMMISSIONER FITZSIMONS: Thank you. I will place the item on the Thursday Commission meeting agenda for public comment and action. Let's see. That was Item 6. Any other business to be brought before this Regulations Committee, Mr. Cook?

MR. COOK: No, sir.

COMMISSIONER FITZSIMONS: The Committee has completed its business and we'll move on to Finance. Regulations is adjourned at 12:10. And Finance, over to Chairman Ned Holmes.

COMMISSIONER HOLMES: Thank you. First order of business, to approve the minutes —

COMMISSIONER FITZSIMONS: Oh, I am sorry. I had a clean up. Our Item 1 was briefing, for the record. Item 1 was briefing and not permission to publish. Sorry, Clay.

(Whereupon, the meeting was adjourned.)


MEETING OF: Texas Parks and Wildlife Commission Regulations Committee

LOCATION: Austin, Texas

DATE: November 2, 2005

I do hereby certify that the foregoing pages, numbers 1 through 162, inclusive, are the true, accurate, and complete transcript prepared from the verbal recording made by electronic recording by Penny Bynum before the Texas Parks and Wildlife Commission.


(Transcriber) (Date)

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