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Commission Agenda Item No. 4
Presenter: Alan Cain

Action
Managed Lands Deer Program
August 20, 2015

I.   Executive Summary: This item seeks adoption of proposed new regulations to replace the current Landowner Assisted Management Permit System (LAMPS) and Managed Lands Deer Permit (MLDP) Program. Briefly, the proposed new rule would:

II.   Discussion: The current MLDP program has been in effect since 1996 for white-tailed deer and 2005 for mule deer and has been a very successful vehicle for encouraging deer harvest, deer management, and habitat conservation. In 2013, approximately 9,500 properties and 24 million acres were participating in the MLDP program. However; the substantial growth in the program during the last 18 years, the accretion of changes to program rules over time, and requests for modernization by staff and program participants have  prompted the TPWD to explore options to simplify the program and create new administrative efficiencies.

At the Work Session meeting on May 20, 2015, staff was authorized to publish the proposed rules in the Texas Register for public comment.  The proposed rules appeared in the July 17, 2015 issue of the Texas Register (40 TexReg 4533).  A summary of public comment on the proposed rules will be presented at the time of the hearing.

III.   Recommendation:  Staff recommends that the Commission adopt the proposed motion:

“The Texas Parks and Wildlife Commission adopts new 31 TAC §65.29, concerning Managed Lands Deer Program, with changes as necessary to the proposed text as published in the July 17, 2015 issue of the Texas Register (40 TexReg 4533).”

Attachments – 1

  1. Exhibit A – Proposed Managed Lands Deer Program Rule

Commission Agenda Item No. 4
Exhibit A

MANAGED LANDS DEER PROGRAM (MLDP) RULE

PROPOSAL PREAMBLE

1. Introduction.

         The Texas Parks and Wildlife Department (the department) proposes new §65.29, concerning Managed Lands Deer Program (MLDP). The new section is intended to replace the current Managed Lands Deer Permit and Landowner Assisted Managed Permit System (LAMPS) programs, currently contained in §65.26, 65.34,  and 65.28 of this subchapter, respectively.

         The current MLDP program has been in effect since 1996 for white-tailed deer and 2005 for mule deer and has been a very successful vehicle for encouraging deer harvest, deer management, and habitat conservation. In 2014, approximately 10,000 properties encompassing 24 million acres were participating in the program. The LAMPS program was created in 1993 to provide flexibility to landowners and land managers with respect to the harvest of antlerless deer, primarily in the eastern third of Texas. Substantial growth in the MLDP program during the last 18 years, the accretion of changes to program rules over time, and requests for modernization by staff and program participants have prompted the department to explore options to simplify both programs and create new administrative efficiencies.

         Proposed new §65.29(a) would set forth the meanings of various specialized words and terms used throughout the new rule, which is necessary to provide clarity of intent for purposes of compliance and enforcement.

         Proposed new §65.29(a)(1) would define “landowner” as  “any person who has an ownership interest in a tract of land.” The definition is necessary because enrollment in the MLDP can only be done by a landowner or a landowner’s authorized agent and a legal standard of ownership must be established.

         Proposed new §65.29(a)(2) would define “MLDP” as “the Managed Lands Deer Program” established by the subchapter as consisting of two enrollment options, the Harvest Option (HO) and the Conservation Option (CO).  The definition is necessary to provide acronyms for easy reference.

         Proposed new §65.29(a)(3) would define “MLDP tag” as “a tag issued by the department to a participant in any option under this section.” Under the provisions of the proposed new rule, the department would establish a harvest quota for properties under the HO or the CO and issue tags for the harvest of deer on those properties. The definition is necessary to clearly establish the fact that no tag other than a tag issued under the proposed new section meets the requirements of the proposed new section.

         Proposed new §65.29(a)(4) would define “program participant” as “a landowner or a landowner’s authorized agent who is enrolled in the MLDP.” Under the proposed new rule, only a landowner or landowner’s authorized agent are eligible for enrollment in the MLDP; the term “program participant” is convenient shorthand that eliminates the need to repeat an unwieldy phrase throughout the rules. In addition, the proposed rules provide that only a landowner (and not a landowner’s agent) is authorized to take certain actions.  Therefore, the term “program participant” is also used to distinguish between a landowner’s authority and  the authority that may be exercised by a landowner or the landowner’s agent (i.e. a “program participant”).

         Proposed new §65.29(a)(5) would define “resource management unit (RMU)” as “an area of the state designated by the department on the basis of shared characteristics such as soil types, vegetation types, precipitation, land use practices, and deer densities.” The department collects population and harvest data at the RMU level to assess the effect of harvest regulations. Under the HO, a harvest recommendation would be automatically calculated by the department using RMU data and coarse data provided by the program participant.

         Proposed new §65.29(a)(6) would define “unbranched antlered deer” as “a buck deer having at least one antler with no more than one antler point.” The current MLDP rules allow for a harvest quota of buck deer and/or antlerless deer. The proposed new section would make a distinction between buck deer that have two forked antlers and buck deer that have at least one antler with no forks. Allowing additional harvest opportunity for unbranched antlered deer is intended to help landowners and land managers achieve their harvest management goals without adversely impacting the resource. The definition is necessary to stratify the harvest of buck deer in the HO.

         Proposed new §65.29(a)(7) would define “Wildlife Management Plan (WMP)” as “a written document on a form furnished or approved by the department that addresses habitat and population and management recommendations, associated data, and data collection methodologies.” Under the proposed new rules, participation in the CO would be contingent on a department-approved management plan. The definition is necessary to broadly outline the components of a WMP for purposes of program administration and compliance.

         Proposed new §65.29(a)(8) would define “Wildlife Management Associations and Cooperatives” as “a group of landowners who have mutually agreed in writing to act collectively to improve wildlife habitat and populations on their tracts of land.” For many years the department has allowed groups of landowners who because of small acreage or land use would not qualify for MLDP issuance to pool their acreage in order to qualify. The proposed new rule would also allow this practice, but a definition is necessary to establish a formal requirement that participation landowners agree in writing to membership.

         Proposed new §65.29(b) would set forth general provisions that are common to both the HO and the CO.

         Proposed new §65.29(b)(1) would establish the conditions for enrollment in the HO and CO, respectively. The HO is an automated tag delivery system; landowners would access the department’s web-based portal, complete an online application, provide requested acreage and other data specific to the property, and the department would then calculate the number of tags to be issued. Therefore, a prospective property and landowner would be considered enrolled at the point the department approves the electronic application. For the CO, the application would also be made online, but a WMP would be required. Thus, a prospective property and landowner would be considered enrolled when the department has approved the application and the WMP.

         Proposed new §65.29(2) would allow a landowner to appoint a person to act as the landowner’s authorized agent for purposes of program participation by completing a department-approved form. Under current rules, the department allows landowners to appoint an authorized agent to act on the landowner’s behalf, which allows land managers, ranch employees, and private consultants to make management decisions in a quick and efficient manner. The proposed new rule would continue this practice, but require the authorization to be documented, which is necessary to ensure that a person purporting to be an authorized agent is actually authorized by the landowner to do so.

         Proposed new §65.29(b)(3) would stipulate that MLDP tags be issued to a program participant, which is necessary to specifically establish that the department does not issue tags directly to hunters.

         Proposed new §65.29(4) would specify that MLDP tags are valid only on the specific enrolled tract for which they are issued, with the exception of aggregate acreages in the HO. Because the MLDP is a program that furnishes a property-driven harvest quota (as opposed to the essentially open-ended harvest possible under county regulation provided in §65.42 of this title, concerning Deer), it is logical that the use of MLDP tags be restricted to the property for which they were issued. The exception is for aggregate acreages in the HO, where the department would allow multiple acreages to be combined, in effect, into a single tract of land for purposes of tag issuance, provided the tracts are contiguous. The tags could then be utilized on any of the properties.

         Proposed new §65.29(b)(5) would exempt an enrolled tract of land from the applicability of personal bag limits, means and method restrictions for archery-only and muzzleloader-only seasons, and archery stamp requirements. When the current MLDP program was created, the department wanted to offer landowners and land managers the most flexibility possible to achieve the management goals jointly determined by the department and landowner; thus, the current rule exempts MLDP properties from the personal bag limits established for each county under §65.42, the means and methods requirement for the archery-only and muzzleloader-only seasons, and the stamp requirements for the archery-only season. Because the department establishes a harvest quota for the property (versus the county regulation under §65.42, which establishes a personal bag limit but does not limit how many hunters may take deer), it makes no biological difference whether one person or many persons harvest deer, provided the harvest quota is not exceeded.  Similarly, the means restriction of the archery-only (only lawful archery equipment may be used to take deer) and muzzleloader-only (only muzzleloading firearms may be used to take deer) seasons, because they do not allow the use of modern firearms (which are much more efficient harvest devices), were eliminated for MLDP properties in order to allow landowners and land managers to reduce habitat impacts by harvesting deer by firearm earlier than allowed under the county regulations. The current rule also exempts MLDP properties from the archery stamp requirement, which is necessary because the archery-only season established by §65.42 is statewide and under Parks and Wildlife Code, §43.201,  it is unlawful for any person to hunt deer during a season restricted to the use of archery equipment unless an archery stamp has been purchased or the commission, by rule, has exempted a person from the archery stamp requirement. The proposed new rule would retain all of these provisions for the same reasons.

         Proposed new §65.29(b)(6) would set forth MLDP tag utilization requirements.  Because department rules at 31 TAC §65.10(c) exempt deer tagged in accordance with MLDP rules from other tagging requirements, it is necessary to precisely delineate the circumstances and procedures for the use of MLDP tags, which is necessary to prevent confusion as well as the unscrupulous use of MLDP tags.  Therefore, the proposed new rule would require harvested deer to be immediately tagged (or taken to a location on the property to be tagged), which is necessary for department law enforcement personnel to verify that deer have been lawfully harvested and for department biologists to track compliance with harvest quotas. The proposed new paragraph also would prohibit the various permutations of inappropriate use of an MLDP tag (e.g., use of a mule deer tag on a white-tailed deer and vice versa, use of an antlerless MLDP tag to a buck deer having more than one point on both antlers, use of an unbranched antlered deer with an antlerless MLDP tag); the use of an MLDP tag or tag number more than once; and the use of an MLDP tag on a tract of land other than the tract for which the MLDP tag was issued. The MLDP program is a program that tailors harvest to specific tracts of land. It is axiomatic, then, that the harvest of deer by a program participant should precisely track the recommendations of the department. Therefore, MLDP tags are issued for specific types of deer to be harvested. To allow those tags to be used indiscriminately or interchangeably would defeat the purpose of the harvest recommendation. Similarly, the harvest quota for a property represents the total number of deer the department will allow to be harvested; allowing additional harvest by re-use of tags or tag numbers, or the use of tags issued for another property, would defeat the purpose of the program.

         Proposed new §65.29(b)(7) would set forth the on-site harvest documentation requirements for program participants. The proposed new rule would require deer harvested on MLDP properties to be tagged with an MLDP tag; however, when deer are taken to a taxidermist or processor, the department must be able, if need be, to verify that the deer was lawfully harvested. To provide that ability, the proposed new rule would require a daily harvest log to be maintained on each MLDP property. The proposed new rule would require the hunter’s name and hunting license number (or driver’s license number, if the daily harvest log is also being used as a cold storage/processing book) to be entered into the harvest log for each deer harvested, along with the date of kill, type of deer killed, and the number of the MLDP tag affixed to the deer. The proposed new provision would allow the department to verify that a MLDP-tagged deer encountered at a location other than where it was killed was in fact lawfully taken on the property for which the tag was issued. The proposed new rule would also require the daily harvest log to be presented to any department employee acting within the scope of official duties.

         Proposed new §65.29(b)(8) would set forth the annual reporting requirements for program participants. Under current rule, MLDP cooperators report harvest and habitat data as part of the WMP that must be approved prior to tag issuance. Because the new MLDP will be an online system, the proposed new rule would require program participants to report harvest data, and in the case of CO program participants, habitat management practices, as well as any other data deemed important by the department. The proposed new provision is necessary to allow the department to gather useful population and harvest data and to verify that required habitat management practices are being performed.

         Proposed new §65.29(b)(9) would specify that if an applicant does not wish to engage in program participation, the applicant must affirmatively decline program participation by September 15 via the department’s online web application. The proposed new provision also would stipulate that failure to timely notify the department would result in the deer harvest on the property continuing to be subject to the MLDP regulations until the last day in February (the last day that MLDP tags are valid).  When a property is in the MLDP, deer harvest cannot be conducted under the county regulations established in §65.42 and all deer must be harvested under the provisions of the MLDP regulation. Because department law enforcement personnel must know what regulations are in effect on any given property, it is imperative that a program participant who has had a change of heart notify the department prior to opening day of the archery season.

         Proposed new §65.29(b)(10) would allow deer to be harvested under the county season and bag limit, provided the department is timely notified as provided by §65.29(b)(10) of the program participant’s desire to cease participation in the MLDP.

         Proposed new §65.29(b)(11) would allow a program participant who maintains a cold storage/processing facility to satisfy the recordkeeping requirements of Parks and Wildlife Code, §62.029, by recording the hunting license number as part of the daily harvest log required by the proposed new rule and maintaining the log for a period of one years from the date of the last entry.  Under Parks and Wildlife Code, §62.029, the operator of a cold storage or processing facility must maintain a record book at the facility of game accepted by the facility and must keep the record at the facility for a period of at least one year from the last date entered in the record book. The proposed new rule would allow program participants to collect and record the information required by Parks and Wildlife Code, §62.029 as part of the daily harvest log required by the proposed new rule and would require the harvest log to be kept at the facility for at least one years following the last date entered in the record book. The department believes it is less burdensome and more efficient to allow program participants to maintain a single system of documentation, rather than two.

         Proposed new §65.29(c) would set forth the specific provisions applicable to the HO and the CO.

         Proposed new §65.29(c)(1) would set forth the program provisions for the HO. The HO can be thought of as a conflation of the current LAMPS program and the current Level I and II components of the MLDP programs. Whereas the current LAMPS program is intended to help manage antlerless deer populations in the eastern third of the state and does not require a landowner to have a WMP, the current Level I and II MLDP components are statewide and require a WMP, with the Level I MLDP authorizing an antlerless-only harvest and the Level II authorizing an either-sex harvest with buck harvest by firearm limited to spike bucks during the first 35 days of tag validity. The proposed new HO would be statewide, would not require a WMP, could be structured as antlerless only or either-sex, and would restrict buck harvest by firearm during the first 35 days of tag validity to bucks having at least one antler with no more than one point (any buck could be taken by lawful archery equipment).

         Proposed new §65.29(c)(1)(A) would establish an application deadline of September 1 for participation in the HO, which was selected in order to allow the department sufficient time to process applications and issue MLDP tags before the period of validity for the MLDP tags begins. Additionally, there would be no paper application process; applications would be made and processed via a web-based application.

         Proposed new §65.29(c)(1)(B) would provide for the enrollment of contiguous tracts of land by multiple landowners for program participation, which is necessary because many areas of the state are characterized by numerous small acreages which by themselves are not large enough to qualify for tag issuance. Many of these areas also experience high hunting pressure and the county bag limits established under §65.42 are therefore quite conservative. Thus, for example,  if the biological limit for antlerless harvest in a given RMU is calculated to be one deer per 30 acres, properties of less than 30 acres cannot qualify, leaving the landowner no option but the county regulation established under §65.42, which might allow a minimal antlerless harvest per hunter, if any. Therefore, the department wishes to provide owners of small tracts a way to bundle aggregate acreage to maximize hunting opportunity. The proposed new provision would require a single program participant to be designated to receive MLDP tags and would allow MLDP tags to be used anywhere on the combined acreage. Because the proposed new HO will be a database application that relates data uniquely to specific tracts of land enrolled in the program, aggregate acreages must be treated as a single tract for purpose of tag issuance; therefore, a single program participant must be designated to receive tags and the tags can then be utilized anywhere on the aggregate acreage.

         Proposed new §65.29(c)(1)(C) would broadly delineate the components used by the department to calculate harvest quotas for properties enrolled in the HO. The department manages population and harvest data on deer populations by the RMU concept. Areas of the state that share similar soil types, vegetation types, precipitation, land use practices, and deer densities are treated as discrete units for the purpose of determining and analyzing the effectiveness of harvest regulations. The department would use survey information collected by the department in a given RMU as a baseline and then adjust the harvest quota as necessary to account for the location of a property, the size of the property, the quality and abundance of habitat on the property, and any other information deemed relevant by the department. The proposed new provision is necessary to create a biologically valid standard for managing the deer harvest on properties enrolled in the HO.

         Proposed new §65.29(c)(1)(D) would set forth the period of validity for MLDP tags issued under the HO. As noted previously in this preamble, the HO can be thought of as a conflation of the current LAMPS program and the Level I and II components of the current MLDP program. The general period of validity of MLDP tags under the HO would remain unchanged from the current MLDP program (Saturday closest to September 30 to the last day in February). Under the Level II component of the current MLDP program, buck harvest by firearm during the first 35 days of tag validity is restricted to spike bucks (any buck could be taken by lawful archery equipment). The proposed new HO would retain this basic structure, but alter the buck restriction to encompass buck deer with at least one antler having no more than one point (i.e., at least one antler is a spike), which would be called an “unbranched antlered” buck. Allowing additional harvest opportunity for unbranched antlered deer is intended to help landowners and land managers achieve their harvest management goals without adversely impacting the resource.

         Proposed new (c)(1)(E) would provide that if a program participant elects to receive tag issuance for only one type of deer (buck or antlerless), then the provisions of §65.42 would govern the harvest of the other type of deer on the enrolled tract of land. Since the proposed new rule would allow program participants in the HO to customize their harvest, it is necessary to clarify that the county regulations provided in §65.42 would be in effect for all deer harvest not governed by the proposed new rule.

         Proposed new §65.29(c)(2) would set forth the program provisions for the CO. The CO can be thought of as similar to the current MLDP Level III component. Under the current rule, a landowner with a department-approved WMP who agrees to perform four habitat management practices per year receives a harvest quota of buck and antlerless deer and may take or authorize the take of deer from the Saturday closest to September 30 until the last day of February by any lawful means without respect to the personal bag limits established in the county under §65.42. The proposed new CO would be similar.

         Proposed new §65.29(c)(2)(A) would require a landowner or authorized agent to apply for program acceptance by June 15 of each year. Like the HO, application for enrollment in the CO would be electronic, using the department’s web-based application. The June 15 deadline was selected because unlike the HO (under which tag issuance is completely automated), the CO requires harvest, population, and habitat management reporting, a WMP, and, if necessary, personal interaction with department personnel; therefore, the application deadline must be set well in advance of the period of validity of the MLDP tags in order to allow staff sufficient time to evaluate applications.

         Proposed new §65.29(c)(2)(B) would set forth the minimum requirements for the WMP required by the proposed new CO, to consist of acreage and habitat information requested by the department, deer population and harvest data for each of the two years immediately preceding the year in which initial program participation is sought, and evidence satisfactory to the department that at least two department-approved habitat management practices have implemented on the tract of land during each of the two years immediately preceding application. The proposed new CO would also require, as part of the WMP, an acknowledgement that site visits by the department to assess habitat management practices on the tract of land may be conducted at the request of any department employee. Under the current MLDP rules, acceptance into the Level III component is automatic upon department approval of the WMP and landowner agreement to perform four habitat management practices per year. Level III is extremely popular, and as a result, department biologists have found it increasingly difficult to keep pace with the demands on time created by the current rule. By offering a completely automated alternative in the form of the HO and requiring evidence of landowner commitment to habitat management (in the form of prior/continuing habitat management activities) as part of the CO, the department hopes to direct much of the current Level III tag issuance to the HO, allowing department biologists more time to work with landowners who desire more intensive management on their properties and are willing to cooperate more closely with the department as a result.

         Proposed new §65.29(c)(2)(C) would stipulate that a WMP is not valid unless it has been signed by a Wildlife Division employee assigned to evaluate wildlife management plans, which is necessary to ensure that all WMPs meet a standard of quality that justifies the allocation of department resources.

         Proposed new §65.29(c)(2)(D) would require the implementation of at least three habitat management practices specified in the WMP during each year of program participation. The proposed new provision preserves the requirements of the current MLDP Level III in this regard. The department intends for the CO to be a vehicle for landowners who are committed to a high level of habitat management; in exchange for performing at least three habitat management practices annually, the department would extend the most flexible tag utilization possible, allowing the harvest of any buck deer by any lawful means from the Saturday closest to September 30 until the last day in February (subject to the number of buck tags issued).

         Proposed new §65.29(c)(2)(E) would prescribe the period of validity for MLDP tags under the CO (the Saturday closest to September 30 until the last day in February) and allow the harvest of any deer during that time, subject to the number of tags issued.

         Proposed new §65.29(c)(2)(F) would allow the department to authorize additional harvest on any tract of land enrolled in the CO, provided the program participant furnishes survey or population data that in the opinion of the department justifies the additional harvest. The department acknowledges that unforeseen circumstances such as inclement weather might adversely affect a program participant’s survey efforts, resulting in undercounting of deer; therefore, it is prudent to allow for additional tag issuance in cases that a program participant presents evidence that additional harvest is either possible or necessary. Similarly, unforeseen circumstances may make harvest and/or habitat management difficult or impossible; therefore, proposed new §65.29(c)(2)(G) would allow the department to, on a case-by-case basis, waive or defer the habitat management requirements of the proposed new CO in the event that unforeseeable developments such as floods, droughts, or other natural disasters make the attainment of recommended habitat management practices impractical or impossible.

         Proposed new §65.29(c)(2)(H) would create special provisions for aggregate acreages. In many parts of Texas, landowners join forces and acreages to manage habitat and wildlife on a landscape scale. The wildlife management association cooperative is a popular example. The proposed new provisions would allow a wildlife management association or cooperative to enroll member properties in the CO under a single WMP.  MLDP tags would be issued to the individual participating landowners (or their agents) and the tags would be valid only on the tract of land for which they were issued. Another form of aggregate acreage is the hunting club, in which land that is owned or leased by members is managed for habitat and hunting opportunity. The proposed new provision would allow these types of aggregate acreages to be enrolled in the CO provided the enrolled acreages are contiguous, the program participant provides the name, address, and express consent of each landowner, and a single program participant is designated to be the recipient of the tag issuance. Because aggregate acreages such as hunt clubs are highly variable from year to year, the department proposes to administer the CO in such cases in much the same fashion as the HO. Because the department’s web-based application will employ a database application that relates data uniquely to specific tracts of land enrolled in the program, aggregate acreages must be treated as a single tract for purpose of tag issuance; therefore, a single program participant must be designated to receive tags and the tags can then be utilized anywhere on the aggregate acreage.

         Proposed new §65.29(c)(2)(I) would stipulate for clarity’s sake that MLDP for white-tailed deer is not available in counties in which there is not an open season for white-tailed deer. The department will not open a season in a county in which the habitat is unsuitable to naturally support a population of white-tailed deer; obviously and for the same reason the department does not believe that MLDP participation should in such counties, either.

         Proposed new §65.29(d) would set forth the provisions of the MLDP governing mule deer. Unlike white-tailed deer, mule deer are a fragile resource that the department manages with an extremely conservative harvest regime. For that reason, the MLDP for mule deer does not include the HO. The proposed new rule’s provisions with respect to mule deer are identical to those for CO for white-tailed deer, with the exceptions of the length of tag validity and restrictions on lawful means during the first 35 days of tag validity. As noted, the department utilizes a conservative harvest regime for mule deer; no general season is longer than 17 days and antlerless deer cannot be harvested without a permit except in Brewster, Pecos, and Terrell counties, and then only by lawful archery equipment during the special archery-only open season. The current MLDP rule for mule deer (31 TAC §65.34) sets a period of validity for tags to run from the Saturday closest to September 30 until the last Sunday in January, with harvest during the first 35 days of that period being limited to lawful archery equipment. The proposed new rule would retain those provisions. The proposed new MLDP for mule deer would allow for program participation on the basis of aggregate acreage. Mule deer are dispersed across their range at very low densities compared to white-tailed deer and properties must be quite large in order to biologically justify tag issuance, unlike the case with white-tailed deer. Therefore, the department wishes to provide owners of small tracts a way to bundle aggregate acreage to maximize hunting opportunity.

         Proposed new §65.29(e) would set forth the conditions under which the department would consider refusing to allow or continue enrollment in the MLDP.

         Proposed new §65.29(e)(1) would establish the administrative violations that would constitute grounds for refusing to allow or continue enrollment in the MLDP. The department does not desire or intend to micromanage program participants; however, there are three areas in which the department considers compliance to be critical to the integrity of the program. Proposed new paragraph (1)(A) would  allow the department to refuse to allow or continue enrollment in the MLDP for any applicant who as of a reporting deadline has failed to report to the department any information required to be reported under the provisions of the proposed new section. The integrity of the MLDP is in part a function of receiving harvest, population, and habitat data (as applicable) from program participants with enough time for the department to make harvest recommendations that are biologically sensible and sustainable and issue MLDP tags in a timely fashion. The reporting deadlines established in the proposed new rule are therefore quite important, and the department considers it not unreasonable to expect program participants to comply with them. Similarly, the integrity of the program also rests on compliance with the harvest quotas and habitat management goals established by the department. Proposed new paragraphs (1)(B) and (C) would  allow the department to refuse to allow or continue enrollment in the MLDP for any applicant who has exceeded the total harvest recommendation established for an enrolled tract of land or has failed to implement the three habitat management practices specified in a department-approved WMP during each year of program participation, if the tract of land is enrolled in the CO. A program participant who exceeds the harvest quota is in effect exceeding a bag limit, which, if repeated at a large enough scale, results in negative impacts to the resource and thus would be counter to the goals of the program. A program participant who intentionally or without reason fails to perform the habitat management practices called for in the WMP under the CO is not only failing to assist the department in attaining the goal of the MLDP, which is to improve habitat on as much acreage as possible, but is also accepting the benefits of program participation without performing agreed-upon obligations. The department believes that in these types of circumstances it is justifiable to refuse to issue tags or continue program participation if necessary.

         Proposed new §65.29(e)(2) would allow the department to refuse to allow or continue enrollment in the MLDP for any applicant who a final conviction or has been assessed an administrative penalty for a violation of Parks and Wildlife Code, Chapter 43, Subchapter C, E, L, R, or R-1; a provision of the Parks and Wildlife Code other than Chapter 43, Subchapter C, E, L, R, or R-1 that is a Parks and Wildlife Code Class A or B misdemeanor, state jail felony, or felony;  Parks and Wildlife Code, §63.002; or the Lacey Act (16 U.S.C. §§3371-3378). In addition, the proposed new section would allow the department to prevent a person from acting on behalf of or as a surrogate for a person prevented from program participation under the proposed new provision.

         The department has determined that the decision to allow program participation should take into account an applicant’s history of violations involving the capture and possession of live animals, major violations of the Parks and Wildlife Code (Class B misdemeanors, Class A misdemeanors, and felonies), and Lacey Act violations. The department reasons that it is appropriate to deny the privilege of taking or allowing the take of wildlife resources for personal benefit to persons who exhibit a demonstrable disregard for the regulations governing wildlife. Similarly, it is appropriate to deny the privilege of personally benefitting from wildlife to a person who has exhibited demonstrable disregard for wildlife law in general by committing more egregious (Class B misdemeanors, Class A misdemeanors, and felonies) violations of wildlife law.

         The Lacey Act (16 U.S.C. §§3371-3378) is a federal law that, among other things, prohibits interstate trade in or movement of wildlife, fish, or plants taken, possessed, transported or sold in violation of state law.  Lacey Act prosecutions are normally conducted by the United States Department of Justice in federal courts. Although a Lacey Act conviction or civil penalty is often predicated on a violation of state law, the federal government need only prove that a state law was violated; there is no requirement for there to be a record of conviction in a state jurisdiction. Rather than expending resources and time conducting concurrent state and federal prosecutions, the department believes that it is reasonable to use a Lacey Act conviction or civil penalty as the basis for refusing program participation in the MLDP. Because the elements of the underlying state criminal offense must be proven to establish a conviction or assessment of a civil penalty for a Lacey Act violation, the department reasons that such conviction or assessment constitutes legal proof that a violation of state law occurred and it is therefore redundant and wasteful to pursue a conviction in state jurisdiction to prove something that has already been proven in a federal court.

         The denial of program participation as a result of an adjudicative status listed in the proposed new rule would not be automatic, but within the discretion of the department. Factors that may be considered by the department in determining whether to refuse tag issuance based on adjudicative status include, but are not limited to:  the number of final convictions or administrative violations; the seriousness of the conduct on which the final conviction or administrative violation is based; the existence, number and seriousness of offenses or administrative violations other than offenses or violations that resulted in a final conviction ; the length of time between the most recent final conviction or administrative violation and the application for enrollment or renewal; whether the final conviction, administrative violation, or other offenses or violations was the result of negligence or intentional conduct; whether the final conviction or administrative violations resulted from the conduct committed or omitted by the applicant, an agent of the applicant, or both; the accuracy of information provided by the applicant; for renewal, whether the applicant agreed to any special provisions recommended by the department as conditions; and other aggravating or mitigation factors.

         Proposed new §65.29(f) would create several special provisions. Because the proposed new rule would be implemented as an automated, web-based application, reporting, and issuance system, it cannot take effect until the necessary software and hardware platforms have been developed, and they cannot be developed without a standing regulation that establishes the parameters of the MLDP program with certainty. For that reason, the rule would take effect on its own terms on September 1, 2017. Because current rules regarding MLDP, LAMPS, bag limits, tagging requirements and license log utilization would conflict with proposed new rule but must remain in effect until the proposed new rule takes effect, the department must create an accommodation for each potential conflict, as well as a general statement to the effect that in the event of additional conflicts, the provisions of the proposed new rule will control. The department will harmonize the various regulatory conflicts at a later date. Finally, the proposed new provision would provide for alternative program administration in the case that technical difficulties make the department’s web-based application inoperable or unavailable, which is necessary to provide for program continuity.

2. Fiscal Note.

         Alan Cain, White-tailed Deer Program Leader, has determined that for each of the first five years that the rule as proposed is in effect, there will be minimal fiscal implications to state government as a result of enforcing or administering the proposed rule. The department anticipates an expense of approximately $732,000 to develop the web-based MLDP application and integrate it with current data architecture; however, the current annual cost of administering the MLDP is approximately $790,000, which is primarily due to intensive manpower requirements associated with manual application processing, in-person site visits, and WMP development and evaluation. Therefore, the department estimates that the proposed rule will result in savings of approximately $58,000 per year for each of the first five years the proposed new rule is in effect. The proposed new MLDP is expected to greatly reduce the current manpower inputs required for program administration, allowing those resources to be allocated elsewhere. Thus, the department expects the cost of developing and implementing the new MLDP to be offset by the value of staff resources invested elsewhere as the result of administrative efficiency created by the new MLDP. The cost of enforcing the proposed new MLDP is expected to remain constant.

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

3. Public Benefit/Cost Note.

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

         (A) The public benefit anticipated as a result of enforcing or administering the rule as proposed will be the ability of department staff to provide additional, more nuanced, and more effective technical guidance to landowners and land managers as a result of greater program efficiency.

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

         The department has determined that there will be no adverse economic effects on small businesses or microbusinesses because the proposed rule will not directly affect small businesses or micro-businesses.  The proposed rule affects the regulation of recreational license privileges that allow individual persons to pursue and harvest white-tailed deer and mule deer. Therefore, the department has not prepared the economic impact statement or regulatory flexibility analysis described in Government Code, Chapter 2006.

         Participation in the MLDP is not mandatory. As noted above, the proposed rule would regulate recreational license privileges that allow individual persons to pursue and harvest white-tailed deer and mule deer. However, landowners who elect to participate in the program would be required to comply with the provisions of the proposed rule. As a result, there could be adverse economic effects on persons required to comply with the rule as proposed. The proposed rule would require all MLDP program participants to submit required information (applications and reports) to the department via the Internet. For persons who already own or have access to a computer or personal digital device (such as a tablet or smart phone) and have Internet access, there is no adverse economic cost to comply with the proposed rule. Prospective and active program participants who do not already own or have access to a computer or other digital device with Internet access would have to ensure that the application and reporting requirements of the new rule are effected via the Internet. For persons who do not possess a computer or other digital device that can access the Internet, compliance with proposed rule would require either access to a public computer with Internet access, a friend or family member with access to a computer with Internet access, purchase or lease of hardware and Internet access, or the absorption of the cost of hiring someone with the equipment and expertise to perform the required actions. Department research indicates that adequate hardware is widely available and can be purchased for approximately $200. Internet access is an additional charge that varies from approximately $15 to $100 per month, depending on the technology and carrier plan, resulting in an estimated additional cost of between $380 and $1,400 for the first year ($200, plus the monthly Internet provide costs of $15-$100/month), but a cost of $180 to $1,200 a year for subsequent years consisting solely of the Internet provider costs. The department also notes that the tremendous growth in internet adoption by Texas households (U.S. Census Bureau data for 2011 estimated that nearly 80% of Texas households have internet access (see http://www.ntia.doc.gov/report/2013/exploring-digital-nation-americas-emerging-online-experience) indicates that online communication is less and less of an obstacle to Texans.

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

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

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

         4. Request for Public Comment.

         Comments on the proposed rule may be submitted to http://www.tpwd.state.tx.us/business/feedback/public_comment/ or Robert Macdonald, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas, 78744; (512) 389-4775 (e-mail: robert.macdonald@tpwd.texas.gov).

         5. Statutory Authority.

         The new rule is proposed under the authority of Parks and Wildlife Code, Chapter 61, which requires the commission to regulate the periods of time when it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in this state; the means, methods, and places in which it is lawful to hunt, take, or possess game animals, game birds, or aquatic animal life in this state; the species, quantity, age or size, and, to the extent possible, the sex of the game animals, game birds, or aquatic animal life authorized to be hunted, taken, or possessed; and the region, county, area, body of water, or portion of a county where game animals, game birds, or aquatic animal life may be hunted, taken, or possessed; §42.0177, which authorizes the commission to modify or eliminate the tagging requirements of §§42.018, 42.0185, or 42.020, or other similar tagging requirements in Chapter 42; and, §43.201(c) which authorizes the commission to exempt a person from the archery stamp requirement.

         The proposed new rule affects Parks and Wildlife Code, Chapters 42, 43, and 61.

         6. Rule Text.

         §65.29. Managed Lands Deer (MLD) Programs.

                 (a) Definitions. The following words and terms shall have the following meanings, unless the context clearly indicates otherwise. All other words and terms in this section shall have the meanings assigned in the Texas Parks and Wildlife Code.

                         (1) Landowner—Any person who has an ownership interest in a tract of land.

                         (2) MLDP—The Managed Lands Deer Program established by this subchapter, which consists of:

                                  (A) the Harvest Option (HO) set forth in subsection (c)(1) of this section; and

                                  (B) the Conservation Option (CO) set forth in subsections (c)(2) and (d)of this section.

                          (3) MLDP tag—A tag issued by the department to a participant in any option under this section.

                         (4) Program participant — A landowner or a landowner’s authorized agent who is enrolled in the MLDP.

                         (5) Resource management unit (RMU) — An area of the state designated by the department on the basis of shared characteristics such as soil types, vegetation types, precipitation, land use practices, and deer densities.

                         (6) Unbranched antlered deer — A buck deer having at least one antler with no more than one antler point.

                         (7) Wildlife Management Plan (WMP) — A written document on a form furnished or approved by the department that addresses habitat and population and management recommendations, associated data, and data collection methodologies.

                         (8) Wildlife Management Associations and Cooperatives — A group of landowners who have mutually agreed in writing to act collectively to improve wildlife habitat and populations on their tracts of land.

                 (b) General Provisions.

                         (1) A landowner and the landowner’s tract(s) of land are enrolled:

                                  (A) in the Harvest Option (HO) set forth in subsection (c)(1) of this section, when an application has been approved by the department; or

                                  (B) in the Conservation Option (CO) set forth in subsection (c)(2) or (d) of this section, when the department has approved:

                                          (i) an application; and

                                          (ii) the WMP required by subsection (c)(2) of this section.

                         (2) A landowner may appoint a person to act as the landowner’s authorized agent for purposes of program participation. The authorization must be on a form approved by the department.

                         (3) MLDP tags are issued to a program participant.

                         (4) If MLDP tags are issued under the provisions of subsection (c)(1)(B) or (2)(H)(ii) of this section, the tags are valid on any tract of land within the aggregate acreage enrolled in the MLDP; otherwise, tags are valid only on the specific enrolled tract of land for which they are issued.

                         (5) On an enrolled tract of land there is no personal or annual bag limit for the type of deer (buck, unbranched antlered, or antlerless) for which MLDP tags have been issued and the provisions of §65.42(b)(17) of this title (relating to Muzzleloader-only Open Season), §65.42(b)(18) of this title (relating to Special Youth-Only Seasons), and the stamp requirement of Parks and Wildlife Code, Chapter 43, Subchapter I (relating to Archery Stamps), do not apply.

                         (6) A person who kills a deer on an enrolled tract of land must immediately tag the deer with a MLDP tag valid for the species (white-tailed deer or mule deer) and type of deer (buck, unbranched antlered, antlerless) harvested. A person who kills a deer and immediately takes the carcass to a location on the enrolled tract of land where a valid MLDP tag provided by the program participant is immediately attached shall be considered to have complied with the immediate tagging requirement. The MLDP tag shall remain attached to the carcass until the carcass reaches a final destination. Notwithstanding any other provision of this section, it is unlawful for any person to:

                                  (A) attach a mule deer tag to a white-tailed deer or vice versa;

                                  (B)attach an unbranched antlered MLDP tag or antlerless MLDP tag to a buck deer having more than one point on both antlers;

                                  (C) tag an unbranched antlered deer with an antlerless MLDP tag;

                                  (D) tag an antlerless deer with any tag other than an antlerless MLDP tag;

                                  (E) use an MLDP tag or tag number more than once; or

                                  (F) use an MLDP tag on a tract of land other than the tract for which the tag was issued.

                         (7) A program participant shall maintain a legible daily harvest log.

                                  (A) For tracts of land enrolled under the provisions of subsection (c)(1)(B) or (2)(H)(ii) of this section, the daily log must be maintained on the aggregate acreage enrolled in the MLDP; otherwise, the daily harvest log must be maintained on the specific enrolled tract for which tags are issued.

                                  (B) The daily harvest log shall be on a form provided or approved by the department and shall be maintained by the program participant until the last day of tag validity.

                                  (C) A person who kills a deer that is required to be tagged under the provisions of this section must, on the same day that the deer is killed, legibly enter the required information in the daily harvest log.

                                  (D) The daily harvest log shall contain the following information for each deer killed on the enrolled tract of land:

                                          (i) the name and hunting license or driver’s license number of the person who killed the deer;

                                          (ii) the date the deer was killed;

                                          (iii) the species (white-tailed or mule deer) and type of deer killed (buck, unbranched antlered, or antlerless); and

                                          (iv) the tag number of the MLDP tag affixed to the deer.

                                  (E) The daily harvest log shall be made available to any department employee acting in the performance of official duties upon request.

                          (8) By not later than April 1 in each year of participation, a program participant shall report to the department, on a form provided or prescribed by the department:

                                  (A) the number of buck deer and/or antlerless deer harvested on each tract of land enrolled in the MLDP;

                                  (B) the habitat management practices implemented on each tract of land enrolled in the CO; and

                                  (C)  additional information as requested by the department.

                         (9) If an applicant does not wish to engage in program participation, the applicant must affirmatively decline program participation by September 15 via the department’s online web application.  On an enrolled tract of land for which a program participant has failed to timely decline participation as provided in this paragraph, the provisions of this section continue to apply to the harvest of deer until the last day of tag validity in the year following application.

                         (10) On a tract of land for which an applicant has timely declined participation under the provisions of paragraph, the provisions of §65.42 of this title (relating to Deer) apply.

                         (11) A program participant who complies with the requirements of paragraph (7)(A)-(E) of this paragraph also satisfies the requirements of Parks and Wildlife Code, §62.029, (relating to Records of Game in Cold Storage or Procession Facility), with respect to deer, provided the daily harvest log maintained on the tract of land:

                                  (A) contains the address and hunting license number of each person who harvested a deer; and

                                  (B) is retained at the cold storage/processing facility for a period of at least one year following the date of the last entry.

                 (c) MLDP — White-tailed Deer. The provisions of this subsection shall govern the authorization and conduct of MLDP participation with respect to white-tailed deer.

                         (1) Harvest Option (HO).

                                  (A) Any landowner or authorized agent may apply to enroll a tract of land in the HO by submitting an application to the department by no later than September 1 of each year on a form provided by the department.

                                  (B) Multiple landowners may combine contiguous tracts of land to create an aggregate acreage for program enrollment.

                                          (i) A landowner or authorized agent participating in the MLDP under the provisions of this subparagraph must designate a single program participant to receive MLDP tags.

                                          (ii) MLDP tags issued under the provisions of this paragraph may be utilized on any tract of land within the aggregate acreage enrolled in the MLDP.

                                  (C) The department shall specify a harvest quota establishing the maximum number of buck, unbranched antlered, or antlerless deer to be harvested on each tract of land or aggregate acreage enrolled in the HO. The harvest quota shall be based on:

                                          (i) department-derived survey data for the RMU in which the tract of land is located;

                                          (ii) the size of the tract of land enrolled in MLDP;

                                          (iii) the types of habitat and the amounts of each type of habitat on the tract of land enrolled in the MLDP; and

                                          (iv) any other information deemed relevant by the department.

                                  (D) On a tract of land enrolled under this subsection:

                                          (i) MLDP tags for antlerless deer and unbranched antlered deer are valid from the Saturday closest to September 30 until the last day of February, during which time antlerless deer and unbranched antlered deer may be taken by any lawful means; and

                                          (ii) MLDP tags for buck deer are valid:

                                                   (I) from the Saturday closest to September 30 for 35 consecutive days during which time buck deer may be taken only by means of lawful archery equipment; and

                                                   (II) from the first Saturday in November until the last day of February, during which time buck deer may be taken by any lawful means.

                                  (E) If a program participant under this paragraph elects to receive a tag issuance for only one type of deer (buck or antlerless), the provisions of §65.42 of this title apply to the harvest of the other type of deer on the enrolled tract of land.

                         (2) Conservation Option (CO).

                                  (A) Any landowner or authorized agent may apply to enroll a tract of land in the CO by applying for acceptance by no later than June 15 on a form provided or prescribed by the department.

                                  (B) A department-approved WMP is required for program participation under this paragraph. The WMP must contain, at a minimum:

                                          (i) acreage and habitat information requested by the department;

                                          (ii) deer population and harvest data for each of the two years immediately preceding the year in which initial program participation is sought;

                                           (iii) evidence satisfactory to the department that at least two department-approved habitat management practices have been implemented on the tract of land during each of the two years immediately preceding application; and

                                          (iv) acknowledgement that site visits by the department to assess habitat management practices on the tract of land may be conducted at the request of any department employee.

                                  (C) A WMP is not valid unless it has been signed by a Wildlife Division employee assigned to evaluate wildlife management plans.

                                  (D) To be eligible for continued program participation, a program participant must implement three habitat management practices specified in a department-approved WMP during each year of program participation.

                                  (E) On a tract of land enrolled under this subsection:

                                          (i) the department will specify a harvest quota of buck and/or antlerless deer, based on the unique characteristics of the tract of land and the deer population; and

                                          (ii) MLDP tags are valid from the Saturday closest to September 30 until the last day of February, during which time deer may be taken by any lawful means.

                                  (F) The department may authorize additional harvest on any tract of land enrolled in the CO, provided the program participant furnishes survey or population data that in the opinion of the department justifies the additional harvest.

                                  (G) In the event that unforeseeable developments such as floods, droughts, or other natural disasters make the attainment of recommended habitat management practices impractical or impossible, the department may, on a case-by-case basis, waive or defer the habitat management requirements of this section.

                                  (H) Special Provisions.

                                          (i) Wildlife Management Associations and Cooperatives.

                                                   (I) The department may enroll a wildlife management association or cooperative in the CO under the provisions of this subsection, provided:

                                                           (-a-) the application contains the name, address, and express consent of the landowner of each tract of land for which enrollment is sought; and

                                                           (-b-) a single WMP that addresses all tracts of land within the wildlife management association or cooperative is submitted and approved by the department.

                                                   (II) A wildlife management association or cooperative may choose to receive antlerless-only or either-sex tag issuance.

                                                   (III) The department shall issue MLDP tags to the individual landowners or landowner’s authorized agent within a wildlife management association or cooperative and the tags are valid only on the tract of land for which they are issued.

                                          (ii) Other Aggregate Acreages. Multiple landowners may combine contiguous tracts of land to create an aggregate acreage for program enrollment, provided:

                                                   (I) the application contains the name, address, and express consent of the landowner of each tract of land for which enrollment is sought; and

                                                   (II) a single WMP that addresses all tracts of land within the aggregate acreage is submitted and approved by the department.

                                                   (III) the program participants  designate a single program participant to receive MLDP tags for the aggregate acreage.

                                  (I) Program eligibility under this subsection is specifically restricted to tracts of land in counties for which an open season for white-tailed deer is provided under §65.42 of this title.

                 (d) MLDP — Mule Deer. The provisions of subsection (c)(2)(A)-(H) of this section also shall govern the authorization and conduct of program participation with respect to mule deer, except:

                         (1) the harvest of mule deer shall occur only between the Saturday closest to September 30 and the last Sunday of January, as follows:

                                  (A) from the Saturday closest to September 30 for 35 consecutive days, the lawful means of harvest is restricted to lawful archery equipment; and

                                  (B) from the first Saturday in November through the last Sunday in January, any lawful means may be used to harvest deer; and

                         (2) program eligibility is specifically restricted to tracts of land in counties for which an open season for mule deer is provided under §65.42 of this title.

                 (e) Refusal of Enrollment.

                         (1) The department may refuse to allow or continue enrollment in the MLDP for any applicant who:

                                   (A) as of a reporting deadline has failed to report to the department any information required to be reported under the provisions of this section;

                                  (B) has exceeded the total harvest recommendation established for an enrolled tract of land; or

                                  (C) has failed to implement the three habitat management practices specified in a department-approved WMP during each year of program participation, if the tract of land is enrolled in the CO.

                         (2) The department may prohibit any person from participating in the MLDP if the person has a final conviction or has been assessed an administrative penalty for a violation of:

                                  (A) Parks and Wildlife Code, Chapter 43, Subchapter C, E, L, R, or R-1;

                                  (B) a provision of the Parks and Wildlife Code that is not described by subparagraph (A) of this paragraph that is punishable as a Parks and Wildlife Code:

                                          (i) Class A or B misdemeanor;

                                          (ii) state jail felony; or

                                          (iii) felony;

                                  (C) Parks and Wildlife Code, §63.002; or

                                  (D) the Lacey Act (16 U.S.C. §§3371-3378).

                         (3) The department may refuse to allow or continue enrollment in the MLDP to any person the department has evidence is acting on behalf of or as a surrogate for another person who is prohibited by the provisions of this section from participation in the MLDP.

                 (f) Special Provisions.

                         (1) On September 1, 2017:

                                  (A) the provisions of this section take effect;

                                 (B) the annual bag limit established under §65.42 of this title does not apply to deer lawfully taken and tagged under the provisions of this section;

                                  (C) the tagging requirements of Parks and Wildlife Code, §42.018, do not apply to deer lawfully taken under the provisions of this section;

                                  (D) completion of the harvest log required under §65.7 of this title (relating to Harvest Log) is not required for deer lawfully tagged under the provisions of this section; and

                                  (E) the provisions of §65.10 of this title (relating to Possession of Wildlife Resources) apply to deer lawfully taken under this section.

                         (2) To the extent that any provision of this subchapter conflicts with the provisions of this section, the provisions of this section prevail.

                         (3) In the event that the department’s web-based application is unavailable or inoperable, the department may specify manual procedures for compliance with the requirements of this section.

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

         Issued in Austin, Texas, on